# King v. Workmen's Compensation Appeal Board

> Supreme Court of Pennsylvania · September 19, 1997 · 549 Pa. 75

URL: https://www.frixlaw.com/law-library/cases/9650300

## Case

- **Full name:** Donna M. KING, Appellee, v. WORKMEN’S COMPENSATION APPEAL BOARD (K-MART CORPORATION), Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** September 19, 1997
- **Citations:** 549 Pa. 75; 700 A.2d 431; 1997 Pa. LEXIS 1927
- **Precedential status:** Published
- **Opinion:** Concurrence by Cappy
- **Judges:** Flaherty, Zappala, Cappy, Castille, Nigro, Newman
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9650300

## Opinion text

CAPPY, Justice,
concurring.
I concur in the result reached by the Majority. I write separately to emphasize that, contrary to the Majority’s assertions, the Workers’ Compensation Act (the “Act”) requires that a party seeking to alter benefits, based upon a change in physical disability, must prove that there has been a change in physical condition since the last legal proceeding addressing the nature and extent of the injury. I concur with the Majority because in this case, I believe that this requirement has been satisfied. Further, I write to suggest that the timing of repeat termination petitions should be of critical importance to a determination of whether a party seeking the termination of benefits is proceeding in good faith, and, thus, whether benefits should be terminated.
Prior case law has consistently interpreted the Act as requiring evidence of a change in condition from an earlier determination and sets forth compelling reasons for such a requirement. This court in Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 252 , 582 A.2d 374 , 380 (1987) made clear that an employer who seeks to modify a claimant’s benefits “on the basis that he has recovered some or all of his ability must first produce medical evidence of a change in condition.” (Emphasis supplied). This burden of production requires evidence of a change in condition since the last disability determination. See Cerny v. Schrader & Seyfried, 463 Pa. 20 , 342 A.2d 384 (1975); Mancini v. Workmens Compensation Appeal Board, 64 Pa.Cmwlth. 484 , 440 A.2d 1275 (1982); Airco-Speer Electronics v. Workmen’s Compensation Appeal Board, 17 Pa.Cmwlth. 539 , 333 *83 A.2d 508 (1975); Banks v. Workmen’s Compensation Appeal Board, 15 Pa.Cmwlth. 373 , 327 A.2d 404 (1974); E.R. Reed Contractor Co. v. Workmen’s Compensation Appeal Board, 7 Pa.Cmwlth. 580 , 300 A.2d 847 (1973).
The reason for such a requirement is perhaps best stated by the learned Judge Glenn E. Mencer in Banks v. Workmen’s Compensation Appeal Board, 15 Pa.Cmwlth. at 377 , 327 A.2d at 406 , “[ajbsent the requirement of showing a change in disability, a disgruntled employer (or claimant) could repeatedly attack what he considers an erroneous decision of a referee by filing petitions for modification based on the same evidence as infinitum, in the hope that one referee would finally decide in his favor.”
In the case sub justice K-Mart offered a change in condition since the 1983 termination petition proceedings by presenting expert medical testimony of the 1989 examination of Ms. King and the expert’s conclusion that Ms. King’s subjective complaints of pain, at the time of the second examination, were unfounded. Thus, the Act’s requirement of proving a change in condition since the last determination regarding the extent of the claimant’s injury was met.
Further, I believe that consideration of the timing of the filing of repeat termination petitions is critical to protect a party from vexatious litigation. While the Act allows a party to seek modification of benefits based upon a change in physical condition at any time, this court noted in Kachinski that, “the viability of this system depends on the good faith of the participants.” Kachinski, 516 Pa. at 252 , 532 A.2d at 380 . Penalty provisions of the Act, such as section 440, 77 P.S. § 996, which allow for the assessment of attorneys fees and costs against an insurer which contests, without a reasonable basis, a compensation claim, are consistent with requiring parties to proceed in good faith. More specifically, prior case law has focused on the time between the filing of petitions as indicia of whether a claim for modification was brought in good faith. Cf Airco-Speer; Banks.
*84 I suggest that a determination of whether a party is proceeding in good faith, and, thus, whether benefits should be terminated, must include as a primary element of consideration, the timing of the filing of repeat termination petitions. I submit that a reasonable period of time must pass between the filing of termination petitions. While what constitutes a “reasonable” period of time will differ with the facts and circumstances of each case, I believe that only in rare cases should a petition to terminate benefits, which is filed within the same year as a previous petition, lead to a termination of a claimant’s benefits. This respite would help to prevent vexatious litigation, promote judicial economy, and establish respect for judicial judgments, thus, ensuring the ‘Viability of the system.” Kachinski.
In this case K-Mart satisfied its burden of establishing a change in condition since the latest legal proceeding addressing Ms. King’s physical disability and filed its second termination petition after a reasonable period of time; therefore, I concur in the result reached by the Majority.
CASTILLE, J., joins in this Concurring Opinion.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9650300. Public record. Not legal advice.