Modification & Suspension Petitions
1. I just got a Modification/Suspension Petition in the mail. What happens next?
Your case will be assigned to a Workers’ Compensation Judge (WCJ) who will schedule hearings to receive evidence and will issue a decision. The next paperwork you will receive is a Notice of Assignment that will tell you the WCJ who has been assigned to your case. It will also give you instructions about filing an answer. You should provide this information to your attorney as quickly as possible so he can file a timely answer on your behalf.
2. What does this petition mean?
An employer files a suspension/modification petition when it believes that you can work and earn money. They want the petition to be assigned to a WCJ so they can present evidence in support of that position. If they convince the WCJ that you can earn a wage that is equal to your old wage, or greater, your wage benefits will be suspended (stopped). If your employer convinces the WCJ that you can earn a wage, but that wage is less than what your used to make, your wage benefits will be reduced to an amount equal to 2/3 of the difference between what you used to make and what the WCJ says you can make now.
3. Will my employer stop or reduce my checks?
No. Your employer cannot stop or reduce your checks until the WCJ issues an order or a decision allowing your employer to stop paying you or pay you a reduced amount. The first time a WCJ can do that is after the first hearing.
4. What do I need to do?
If you do not have a lawyer, you should hire one. Preferably, you should locate a lawyer with a lot of experience in the field of workers’ compensation. You should inform your lawyer of the name of the assigned WCJ and give him a copy of the Termination Petition and the Notice of Assignment. Your lawyer will tell you what else you need to do.
5. How much will a lawyer cost?
Workers’ compensation lawyers usually will charge you 20% for their time. This fee must be approved by the WCJ. That usually occurs at the first hearing.
6. When will the lawyer’s fees be deducted from my check?
After the WCJ approves your lawyer’s fee in writing, the insurance company will deduct the fee every time it issues you a check. The insurance company will send your lawyer a check for 20% and will send you a check for 80%. Therefore, you will not have to worry about paying your lawyer.
7. Are the other expenses that I should expect?
Yes. In addition to attorney’s fees, money will have to be paid to medical providers for your medical records, to expert witnesses such as doctor’s for their time to testify, and to court reporters for making written records of the testimony in your case. These expenses are called litigation costs. They can add up to a lot of money. You should discuss these costs with your attorney and come to a clear understanding about: 1) who will advance the costs; and, 2) who is ultimately responsible for the costs. If you win your case, in whole or in part, your employer is required to pay these costs back.
8. How does the case proceed before the workers’ compensation judge?
That depends upon the WCJ. Some WCJs like to hold frequent hearings to make sure your case is proceeding efficiently. Other WCJs will schedule very few hearings.
At the first hearing, the employer will ask the WCJ for permission to stop or reduce your checks right away. This request is very rarely granted. When it is denied, the WCJ will approve your lawyer’s 20% fee. You do not need to attend this hearing unless your lawyer tells you to attend.
The WCJ will discuss the case with the attorneys and schedule further hearings according to the WCJs preferred case management method. There will be at least one more hearing before the WCJ to receive all the evidence in your case. Although some judges require you to testify earlier, most claimants testify at the last hearing when the first (or only) petition that has been filed is a termination petition. Sometimes, the opposing lawyer will ask for your testimony earlier than the last hearing. Your lawyer will advise you when you need to testify.
9. How long will it take for the case to be decided?
It varies, but it takes about nine (9) to twelve (12) months from the first hearing.
10. Will my checks continue until then?
Yes, in most cases. It is very rare for a WCJ to stop or reduce your checks before the final decision.
11. Will I continue to receive the medical care that I need?
Yes. Your employer is obligated to pay for reasonable and necessary care related to your accepted work injury. When it files a suspension/modification petition, the employer is not challenging the existence of your injury. If you have any problems related to obtaining medical care or obtaining payment for your medical care, alert your lawyer.
12. What happens in between the hearings?
The hearings before the judge are used to collect evidence and present testimony of the claimant (you) and other fact witnesses. It is almost always necessary for at least two doctor’s to testify in a termination petition case – one for the employer and one for the claimant.
Because it is difficult to get the doctors to attend a hearing, their testimony is obtained by a deposition. Your lawyer, the employer’s lawyer and a court reporter go to the doctor’s office to take his testimony.
Because the WCJ is not present, the court report creates a transcript (written record) of your doctor’s testimony that is given to the WCJ at the next hearing. These depositions are scheduled in between the hearings. The employer is usually required to take the deposition of its doctor with 90 days of the first hearing. Your lawyer usually must take your doctor’s deposition within 90 days of the deposition of the employer’s doctor. Sometimes one or both sides chooses to take the deposition of more than one doctor. This often lengthens the time required to complete your case.
Depositions of vocational witnesses are also taken in suspension/modification cases. Your employer will always present a vocational witness. Depending upon the defense strategy you and your lawyer choose, you may present a vocational witness of your own.
13. Can I settle my case before the WCJ issues a decision?
Yes. But in a workers’ compensation case, both parties must agreed before a settlement can occur. Pennsylvania encourages workers to settle their cases and has required that a settlement conference, called a mediation, be scheduled in all cases unless the conference would be futile. WCJs differ as to how they schedule such settlement conferences, but it is very likely that at least one settlement conference will be scheduled in your case. If you are interested in settling your case, you should discuss that goal with your lawyer.
14. What happens if I win the final decision?
Your wage benefits will continue at the total disability rate. The employer will also be required to repay any litigation costs that you or your attorney have incurred. The employer may choose to take an appeal. In the event of an appeal, the employer will ask the appeal court to stop your benefits while the appeal pending. This request is not granted frequently. If the employer chooses not to appeal, they will most likely schedule another IME with a doctor of their choice and start the same process all over again.
15. What happens if I lose the final decision?
You have the right to appeal. During the appeal you will only receive further wage benefits in the amount the WCJ decided. In cases where the WCJ modifies your wage replacement benefits to a lower rate, you will only receive that rate while the appeal is pending. If the WCJ suspends your wage replacement benefits, you will only receive medical benefits while the appeal is pending. Your chances of success on appeal are usually much less than your chances of success before the WCJ. Many times, there are no grounds to appeal because the law gives the WCJ the sole authority to make certain determinations. That is why it is always crucial to hire a lawyer and put every effort into winning before the WCJ.