Wednesday, February 6, 2013

Termination of Disability - Proof - Description of Injury, & Closure of the Record

A recurring issue for Employers and Insurers is the limitation upon a remedy for successful termination of disbility benefits arising from the "changing injury description".

In a Termination Petition, the Employer/Insurer burden of proof is to establish that disability from the work injury has ceased.

Where the Employee continues to complain of pain, the Employer may meet this Termination burden of proof, via a credible and unequivocal medical opinion (within a reasonable degree of medical certainity) that the Employee has "fully recovered", can return to work "without restrictions" and there are "no objective medical findings" that can sustantiate the pain complaints OR connect them to the work injury.  see: Udvari v. WCAB (US Air, Inc.) (Pa. 1997).

Edward J. Siegfried and Erie Insurance Co. v. WCAB (Zerbe) decided by Judge McGinley of the Commonwealth Court at No. 1815 C.D. 2012 on February 1, 2013 in an Unreported Opinion.

A Termination Petition was defeated when the Workers Compensation Judge assigned greater credibility to the medical opinions expressed by the Employee medical witnesses, Dr. Zeliger (back symptoms) and Dr. Ackerman (shoulder symptoms). Also, Employee was found credible.

TWO ISSUES were discussed on appeal.

#1. Employer argued the WCJ erred in denial of the Termination petition, as Employee medical expert Dr. Zeliger testified that Employee was not fully recovered as he had a "borderline herniated disc, protruded disc, at L5-S1 on the left". The NCP described the work injury as "lumbar sprain/strain and right shoulder contusion". The WCJ erred in assessing the medical opinions based upon an implicit, not express amendment of the injury to include a disc herniation.

Commonwealth Court reasoned the WCJ implicitly amended the description of injury based upon the determination that Dr. Zeliger was credible.

#2. After the close of the evidentary record and before a decision was published, Employer Counsel requested to re-open the record and schedule a status conference to discuss "new evidence", an office progress note from Employee's treating orthopedic surgeon, Dr. Ackerman, to the effect that Employee had reached "MMI" and was released to full duty work with respect to the shoulder.

Employee Counsel also requested the record be re-opened.
The WCJ did not respond to these requests. The Termination Petition decision was issued.

Employer counsel argued the WCJ erred in not reopening the record to consider the note from the treating orthopedic surgeon that Employee had fully recovered from the shoulder injury.
[Note: a "full recovery" is not synonymous with a return to "full duty".  The appellate decision is not clear on this point.]
Citing the Special Rules of Administrative Practice and Procedure before Workers' Compensation Judges, 34 Pa. Code 131.101(c) the Commonwealth Court noted the WCJ may close the record after submission of all evidence or upon a party's motion or motion of the judge. They emphasized there is no specific rule or decision that the WCJ must reopen the record to accept after acquired evidence.
The general rule (not mentioned in this opinion) is that the WCJ has discretion to reopen the record and that decision will not be reversed, absent an abuse of discretion. See: Sharkey v. WCAB (Tempo, Inc.) Pa. Cmwlth. 1999.

My Concerns:

1. Why deny the JOINT request of Employer and Employee Counsel to re-open the record and review
    medical evidence which was not previously available. I do not understand this. I recognize there
    needs to be an end point and a time when the case goes to decision, BUT here there was fairly
    important medical evidence, that reflected a significant chance in claimant's medical evidence of
    ongoing disability.
    As this was truly after discovered evidence, let it in.

2. The "implicit" amendment of the description of injury, without a Employee petition for Review,
    does not provide Employer with any notice that the WCJ will "grant" this relief to Employee, such
    that Employer's medical evidence is now devalued and this evidence no longer addresses the
    critical issues of termination/continuance of the work related disability.
    Employee must be required to challenge the description of injury and place the Employer on notice,
    consistent with the appellate decisions at Cinram Mfg. Inc v. WCAB (Hill); Commercial Credit v.
    WCAB (Lancaster) and Jeanes Hospital v, WCAB (Haas).

Practice Pointers

A. I guess you should ask Employee Counsel "on the record" if they are going to review the description
     of injury. OK, I do not typically do this... may be we should... when it appears it may be an issue.

B. I do not have any "great" recommendations for getting the WCJ to re-open the record, particularly
     where opposing counsel agrees with your request. Maybe strenuously argue the after-discovered
     nature (maybe they did that here, it's hard to tell from this appellate report).

This is an unreported decision of the Commonwealth Court. Since 2008 one may cite and argued for its persuasive value, not as a binding legal precedent.

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