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Applying Baxter or Little: Examining the Burden of Proving a Full Recovery in the Context of a Pre-existing Condition

June 1, 2019

Defense Digest, Vol. 25, No. 2, June 2019

By Ashley S. Talley, Esq.*

Key Points:

  • Apply Baxter when there is an aggravation of an unrelated pre-existing condition and Little when the pre-existing condition is work-related.
  • It is irrelevant whether the pre-existing condition occurred from prior employment for purposes of examining whether to apply Baxter or Little.
  • So long as there is a continuity of employment, average weekly wages should be calculated under Section 309(d), even if there are layoffs and fewer earnings in certain quarters of employment.


A fundamental principle of Pennsylvania workers’ compensation law is that a claimant who suffers a work-related injury is entitled to total disability benefits. Conversely, a claimant who no longer suffers from a work-related injury is, therefore, no longer entitled to total disability benefits. The question of whether a claimant is fully recovered is often nuanced, and even more so when dealing with an individual who has aggravated a pre-existing condition. Is the disability work-related? Or, is it attributable to an underlying, non-work-related condition? Each has very different legal implications. Generally speaking, a claimant has fully recovered from an aggravation when he has returned to his baseline condition. However, when the underlying injury is work-related, the claimant has a “materially different baseline” and, as such, is not fully recovered if there are residual conditions that prevent a return to pre-injury work.

The Commonwealth Court examined these issues in the recently published case of Kurpiewski v. WCAB (Caretti, Inc.), 202 A.3d 870 (Pa.Cmwlth. 2019). Mr. Kurpiewski worked at various job sites as a union bricklayer. Over his approximately 18 years of work, the claimant was exposed to chromium, a compound found in bricks, concrete and mortar. He had previously been diagnosed with allergic contact dermatitis and suffered a recurrence while working for the employer. A claim petition was filed for a work-related allergy to chromium, which was granted by the workers’ compensation judge. In awarding benefits, the judge dismissed the applicability of Bethlehem Steel Corporation v. WCAB (Baxter), 708 A.2d 801 (Pa. 1998), which holds that a claimant has returned to baseline and, therefore, has fully recovered from an aggravation injury “where there are no restrictions from the work-related injury, [despite]…the threat of future recurrences prevent[ing.]…claimant from performing [the] pre-injury job.”

Both Mr. Kurpiewski and the employer appealed, and the Workers’ Compensation Appeal Board remanded the case, finding in pertinent part that a full recovery was evident, per the Baxter case. The Board explained that because the work injury was only an aggravation, once the claimant returned to baseline, benefits should have been terminated, even if he could not return back to work as a bricklayer. Based upon Baxter, the threat of recurrence would be from a non-work-related condition. On remand, the workers’ compensation judge awarded a termination of benefits, which was appealed by the claimant. The Appeal Board affirmed, and cross appeals were filed in Commonwealth Court.

The first issue on appeal was whether the Appeal Board erred in terminating benefits based upon the Baxter case. The claimant argued that, unlike Baxter, he did not suffer from an unrelated pre-existing condition, but one caused by prolonged exposure at work. This made the Baxter case inapplicable. The employer responded that, regardless of the cause, the claimant’s allergy still pre-existed his employment and, therefore, Baxter controlled. However, the court did not agree, holding that since the claimant’s pre-existing allergy was caused by exposure at work, the Baxter standard did not apply. In Baxter, the aggravation was from childhood asthma, while in this case, the claimant’s allergy was directly caused by long-term exposure at work.

Instead, the case was like earlier Supreme Court cases—Lash and Farquahar—that were most recently explained in Little v. WCAB (Select Specialty Hosp.), 113 A.3d 1 (Pa. Cmwlth. 2015). In those cases, each of the claimants suffered aggravations of conditions caused by their employment. The difference, the court held, was that those claimants had residual medical conditions as a result of their employment. Similarly, in the instant case, because the initial exposure was work-related and the threat of an aggravation also work-related, the claimant was incapable of returning to work. As a result, the court reversed and found that the claimant had not fully recovered from his injury.

As illustrated in Kurpiewski, a full recovery argument cannot be made if the pre-existing condition was caused by a previous work injury. It is irrelevant whether the injury occurred while working for other employers. In those cases, the burden is significantly higher and requires proving that a claimant has fully recovered from the underlying work-related condition. Conversely, under Baxter, the employer need only prove that the claimant has returned to his/her baseline condition. It is important to remain current on a claimant’s treatment and opinions of disability in order to identify early opportunities to mitigate ongoing exposure.

The court also examined the calculation of the claimant’s average weekly wage, holding that Section 309(d) of the Act applies to long-term employment, even if there are layoffs and fewer earnings in those specific quarters. The test is whether there is continuity in employment. As to the issue of concurrent employment, the court noted that to qualify, a claimant must be working for both employers at the time of injury. Here, because the claimant testified he only worked for the employer at the time of injury, concurrent employment did not exist at the time of his injury.

*Ashley is an associate in our Philadelphia, Pennsylvania office. She can be reached at 215.575.2653 or




Defense Digest, Vol. 25, No. 2, June 2019. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2019 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact


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