Every aspect of PA workers’ compensation has a burden of proof to be met. For the injured worker, the Petitions to be filed to begin to receive or start receiving again workers’ compensation benefits are the Claim and Reinstatement Petitions, respectively. Each will be explained along with the burdens of proof required for each. For the employer and their workers’ compensation carrier, the Petitions that they have the burdens of proof on are the Modification, Suspension, and Termination Petitions.
Let’s first look at the Claim Petition. If you have suffered a work-related injury, and it is denied by your employer’s workers’ compensation carrier, the only way to attempt to receive benefits is if a Claim Petition is filed. There are elements that must be proven by you, the injured worker. First is that timely Notice must be given to your employer, either verbal or written. The Notice must be given within 120 days of the injury, and must be given to a supervisor, foreman, manager, or owner of the company. In other words, Notice cannot be just given to a co-worker or a friend at work, but to someone who is actually in charge. If you give Notice verbally, you will need to testify as to the details of the Notice before a Workers’ Compensation Judge. You also must have medical evidence that links your injury with your work. The injury has to have been suffered in the course and scope of your employment. Most times, this will involve taking a doctor’s deposition and submitting the transcript into evidence. It goes without saying that you also must prove that you were working at the time of your injury, the amount of your wages at the time of the injury, your job with the company and your job duties. All of these elements can be testified to before the assigned Workers’ Compensation Judge. It is important to note that the burden of proof when trying to obtain wage loss and medical benefits is always on the injured worker and never shifts to your employer or their workers’ compensation carrier.
Also, with a Reinstatement Petition, the burden of proof also lies with the injured worker. The Reinstatement Petition is filed after your wage loss benefits have been modified, suspended, or terminated. The burdens vary based on the reasons for the stoppage of the benefits, and will be dealt with in another Blog.
Now, on the flip side, the Petitions that require the employer and their workers’ compensation carrier to have the burden of proof are the following:
- Modification Petition
- Suspension Petition
- Termination Petition
All of these Petitions are filed by the workers’ compensation carrier on behalf of the employer against claimants (injured workers) to try to stop their receipt of workers’ compensation benefits in some way. First, the Modification Petition seeks to “modify” or decrease the amount of wage loss benefits that you receive on a weekly basis. This Petition is filed after the workers’ compensation carrier sends you for an IME (Independent Medical Examination) with a Dr. of their choosing, and that Dr. says that you, the injured worker are capable of returning to some type of work, like light or sedentary work. Once that Dr. has given such an opinion, then the workers’ compensation carrier hires a vocational counselor to do a Labor Market Survey, Earning Power Assessment, indicating that there is work generally available for you to return to in the community that would pay either the same or less wages than you earned at the time of your work injury. If the wages are the same, then a Petition for Suspension would be filed on behalf of the employer, workers’ compensation carrier; if the wages are less, then a Petition for Modification would be filed. With both the Suspension and Modification Petitions, only the wage loss can be affected, and the medical will remain open.
If the IME Dr. says that you, the injured worker are fully recovered, then the carrier will file a Termination Petition, to stop both your wage loss and medical benefits. In all cases, whether the Petition is filed on behalf of the Claimant or the Employer, the Petition will be assigned to a Workers’ Compensation Judge, based on where you live, and then a first hearing will be scheduled, a trial schedule will be set, and ultimately the assigned Judge will issue a Decision unless the case is settled.