Darby, PA asked in Workers' Compensation, Constitutional Law and Social Security for Pennsylvania

Q: how can a WCJ rule on a second LMS with out a change in evidence

The same vocational evidence meaning my education and transfer skill, work experience has not changed. The only thing that changes is the Vocational Expert opinion that I could make more money. Employer is asking the WCJ to rerule on a case already adjudicated in a more harsh manner.

I’m a disable union tradesman collecting both a disability pension and SSDI. By taking any of these job I will lose value benefits articulated in the CBA. The first judge didn’t believe I would lose those benefits bc the LMS is in theory. Why?

3 Lawyer Answers
Timothy Belt
Timothy Belt
Answered
  • Workers' Compensation Lawyer
  • Kingston, PA
  • Licensed in Pennsylvania

A: The nature of workers' compensation allows for change in condition both physical and financial. If additional better paying jobs are now available within your restrictions, the defendant can certainly attempt to modify or suspend your benefits based upon the new economic reality. You are also allowed to dispute these claims through evidence regarding your physical limitation as well as through vocational evidence disputing the jobs and availability of the jobs.

I assume you have an attorney, so I would strongly suggest that you discuss your options with your attorney. If you do not have an attorney, you should contact one.

Glenn Neiman agrees with this answer

Richard Alan Jaffe
Richard Alan Jaffe
PREMIUM
Answered
  • Workers' Compensation Lawyer
  • Philadelphia, PA
  • Licensed in Pennsylvania

A: Unfortunately, the Workers Compensation Carrier is entitled to file "serial" Petitions as long as they can show a change in condition and the subsequent Petitions are not barred by the doctrine of res judicata; i.e. litigating that which has previously been litigated.

Assuming that you have undergone a subsequent IME and a subsequent Vocational Assessment, the Workers Compensation Carrier would be permitted to litigate a 2nd Petition for Modification/Suspension based upon the new evidence. As previously pointed out by my colleague, the 2nd Vocational Assessment may have found better jobs than the previous or the economy may have improved allowing for a higher Earning Potential.

Although we have argued, in the past, that you may lose valuable bargain for Benefits in pre-Labor market Survey Cases, I have yet to see the Courts apply this theory in Labor Market Survey cases. Recent case law holding the Workers Compensation Carrier to a higher standard in LMS/EPA cases may revive this argument and I would certainly make same in the instant Litigation.

Assuming that you are currently represented by Counsel, I would certainly contact your Attorney to discuss these issues in greater detail as he/she would be in a better position to address your concerns. If, however, you are not represented by Counsel, it is my recommendation that you promptly contact an Attorney who is a Certified Specialist in Pennsylvania Workers Compensation Law for an initial consultation to discuss your rights and remedies.

Timothy Belt and Glenn Neiman agree with this answer

Glenn Neiman
Glenn Neiman
PREMIUM
Answered
  • Workers' Compensation Lawyer
  • Warminster, PA
  • Licensed in Pennsylvania

A: I agree with the attorneys who have responded. Even though your educational background and work experience have not changed, the workers' comp insurance carrier has a right to argue the jobs available to you (perhaps by economic developments or just time) have changed. This is not exactly arguing the same thing twice, which would not be permitted. Have you discussed your concerns, and your options, with your attorney? If not, I would urge you to do so.

Timothy Belt agrees with this answer

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