Tuesday, February 26, 2013

Termination Remedy - expanded RSD injury

Termination remedy where a prior termination was denied can be limited.
There is an increased burden of proof upon Employer.
The additional requirement is to demonstrate "a change in the physical condition of claimant since the time of the last disability determination".

Johnson v. WCAB (Bucks County Intermediate Unit) at No. 1232 C.D. 2012 an unreported panel decision of the Commonwealth Court of Pennsylvania authored by Judge Leadbetter on February 26, 2013.

Factual and Procedural Background

February 2002 injury of: low back strain; right knee strain and right lower leg RSD.

April 2004 injury expanded to include: RSD of right side and right shoulder; 
                                                              a pain disorder associated with psychological factors and
                                                              a chronic medical condition.

November 2006 WCJ decision: deny Termination Petition requested as of 11/23/05 exam
                                                   ***injury further expanded: RSD left side of body.

February 2008 Employer Petitions: 1. Modification, full recovery of RSD,
                                                             Neurologist, Dr. McCarren 2/18/08
                                                         2. Modification , full recovery from mental component of injury,
                                                             Psychiatrist Dr Michals 1/25/08
                                                         3. Termination, full recovery
                                                             Orthopedist Dr. Nolan 7/31/08

WCJ Granted Termination and Modification Petitions.

The Pa Supreme Court decision in Lewis v. WCAB (Giles & Ransome Inc) (Pa. 2007) held that a termination request, based upon a theory that the worker's disability has ceased due to an improvement of physical ability must be based upon medical evidence of a change in the worker's physical condition.
In the case of successive termination petitions, there must be a demonstration of a change in physical condition since the last disability determination.
Generally, if there are additional recognized injuries, the employer must prove the worker also recovered from them. (Mino, Pa. Cmwlth. 2010).

In Johnson, there was the additional issue that Dr. McCarren modified his opinion regarding Employee's work capacity after review of surveillance evidence and the Psychiatrist report.
Employee argued this was an equivocal opinion and not evidence of a full recovery, as it was not based upon a change of her condition.

Dr. McCarren examined Employee and found no residual signs of RSD but he recommended sedentary work. After viewing the film of Employee he changed his opinion to a full recovery.
This is not improper!
A doctor's opinion is not considered equivocal when during the course of forming his opinion, he revises his original view of claimant's capabilities and condition after viewing surveillance video. See: Fye v. WCAB (Super Moche) (Pa. Cmwlth. 2000).
His opinion regarding full recovery was based upon his physical exam with lack of residual findings and the video which showed she used her extremities without any limitation.

Regarding Dr. Michal, the Psychiatric expert, on cross exam he admitted to the possibility that her pre-existing non-work related psychological problems could be a factor as to why she was not working.
This expression goes to the weight of his opinion of a full recovery, it does not diminish the competency  his opinion.

Note: other evidence mentioned included Employee's 2003 wedding photo on a glacier and 2004 video of her teaching a "spin class".

Practice Pointer:

1. A Second Termination attempt must recognize the full extent of the work injury and any prior determinations that the injury has "expanded". Here the Employer developed a comprehensive approach, addressing the physical, neurological and psychological components of injury.

2. Employer also pursued surveillance evidence to rebut Employee's appearance at the hearings.
She alleged difficulty with simple tasks such as opening a water bottle.
Video demonstrated use of both hands, walking her dog, carrying coffee, reaching, etc.
At times, it is appropriate to establish a strategy to document the "fullest extent" of the workers professed limitations, IF you plan to rebut those statements via surveillance evidence.

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