If you’ve suffered a serious work injury, you may receive wage loss benefits as you recover. However, if your employer or their insurance company believes your condition has improved, they can file a Petition to Modify Compensation. This type of petition reduces or stops your wage replacement benefits, even if you’re still unable to return to your old job. What can you do to fight a modification?
What Is a Modification Petition?
Under the Pennsylvania Workers’ Compensation Act, a modification petition allows an employer to request a change in your wage loss benefits. This usually happens in two situations:
- The insurer or employer claims you can return to some type of work
- The insurer or employer believes your earning capacity has increased
Once a modification petition is filed, the case will proceed before a workers’ compensation judge. Your assigned workers’ compensation judge may rely on a medical examination or vocational evaluation to determine whether you can work. In turn, you’ll have the chance to present medical records and related evidence to argue against the benefit reduction.
This process can take months. While it’s ongoing, your employer might petition to have your benefits immediately reduced, which may be granted by a judge if you do not have proper representation. If your employer or their insurer succeeds in proving you can work, your benefits may be reduced or eliminated.
How Employers Try to Prove You Can Work
Employers often use one of the following strategies to support a modification petition:
- Independent Medical Examination (IME): A doctor chosen by the insurance company evaluates your condition. If they believe you’re capable of working in some capacity, the employer may file for modification.
- Labor Market Survey (LMS): If you are not back to work, a vocational expert may perform a labor market survey to identify jobs that match your medical restrictions.
- Earning Power Assessment (EPA): If you have not returned to work, the employer may claim there are available jobs you could perform instead. An EPA is based on your work history, education, and physical abilities.
The law does not require your employer to prove you were actually offered a job or that the position still exists—only that suitable employment is available to you. It’s important to challenge the evidence’s accuracy and fairness.
Possible Defenses to Modification
There are several ways to challenge a modification petition:
- Dispute the IME findings: The IME doctor may only see you once and could downplay the extent of your injury. Your treating physician’s opinion also carries weight, especially if they see you regularly and recognize your continued inability to work.
- Challenge the labor market survey: You can question whether the jobs identified are truly available and whether they match your physical restrictions. You can also challenge whether you are realistically qualified for them.
- Show good faith efforts to find work: If you’ve made honest attempts to find employment within your restrictions, that evidence may weigh against the idea that you’ve regained earning power.
- Raise procedural issues: Employers must follow certain rules when filing a modification petition. For example, if they fail to provide the required notice or if their vocational expert is unqualified, you may have grounds to contest the petition.
You might be tempted to ignore a petition for modification, especially if it seems clear that you’re unable to work. However, ignoring a modification petition or assuming the judge will side with you can lead to serious financial consequences. It’s best to take the petition seriously and participate in any examinations or interviews requested. At the same time, keep records of your symptoms, limitations, and treatment. The more evidence you provide, the better chance you have to protect your benefits.
Get Help Fighting a Modification Petition Today
If your employer is trying to reduce your benefits, you don’t have to accept it. McCormick & Vilushis LLC will help you present strong evidence and fight to keep the wage loss benefits you depend on. Contact us today to discuss your case.