Thursday, March 7, 2013

Subsequent Termination Petitions

When an Employer is unsuccessful in the litigation of a Termination petition, the Employer may pursue the remedy of termination in a subsequent proceeding. The Employer burden of proof is to establish by unequivocal and competent medical evidence that the workers' disability has ceased or that any remaining disability is not related to the work injury.

An interesting issue arises when the second Employer medical expert does not describe the "work injury" in the same manner as the prior WCJ decision. This discrepancy may imperil the termination request.

Julio PazyMino v. WCAB (Crime Prevention Association) at No. 1659 C. D. 2012, an unreported panel decision of the Commonwealth Court of Pennsylvania, authored by Judge Colins on
February 26, 2013 discussed this issue.

*The procedural history of this case is lengthy. For this discussion, we will abbreviate the details*

Procedural & Factual History

June 2000 Injury, trip and fall. Employee was director of this non-profit in a sedentary.
He continued to work and receive medical care.
September 2003 He reduced his work hours and filed a Modification petition.
An NCP was issued for a "Lumbar strain & sprain".
December 2003 Employer files Termination petition.

October 2004 First WCJ decision, deny Termination.
Modification granted, Partial disability benefits awarded.
WCJ found injury caused pre-existing stenosis to become "truly symptomatic with nerve involvement", radiculopathy was evidence of recent trauma, not from a chronic problem.

July 2006 Employee work 1.5 hours per day, placed on inactive status, Total disability was paid.

April 2006 IME Dr. Malumed, Employee fully recovered.
Employer file Termination petition.

April 2008 Second WCJ decision, grant Termination.
Found Employee recovered from lumbar strain & sprain, and radiculopathy.
Problem: Second WCJ did not consider "stenosis" to be part of work injury.

February 2010 Commonwealth Court vacated & remanded termination petition as Second WCJ did not include aggravation of pre-existing stenosis as part of accepted work injury.

February 2011 Second WCJ remand order, new findings, grant Termination.
Based upon Dr. Malumad opinions Employee fully recovered from work injuries including aggravation of stenosis.

Employee still had chronic back pain from pre-existing stenosis BUT it was the result of the normal progression of his pre-existing stenosis, not the work-related "aggravation" of the stenosis.

Commonwealth Court affirmed the Termination order.

Second WCJ found Employer medical evidence was credible.

Employee argued Dr Malumed testimony was not legally competent to support a termination as he did not acknowledge the accepted work injuries. He did not believe that Employee sustained any injury beyond the lumbar strain & sprain.
An Employer may not re-litigate the scope or extent of the accepted injury in a subsequent proceeding.
A Medical opinion is not legally competant if it does not acknowledge the accepted work injury and opine the worker recovered from those injuries.

Dr Malumed specifically addressed all of the components of the accepted work injuries - the radiculopathy; the aggravation of stenosis - he opined Employee fully recovered, when asked a hypothetical question .
Dr. Malumed apparently held the opinion that Employee's chronic back pain was the result of the progressive worsening of the pre-exisiting stenosis, he did not relate those symptoms to the work trauma.

These opinions were deemed to not conflict, as the First WCJ expanded the work injury to "only" include the pre-existing stenosis become "symptomatic". The work injury did not change or aggravate the stenosis itself, it only made it symptomatic. Dr. Malumed believed there was a full recovery from the work related injuries, employee's condition had improved, there were no more radicular findings.

"There is no requirement, however, that the medical expert believe that the claimant actually suffered the accepted injuries or believe that the accepted work injuries were in fact work-related."
slip opinion page 10.
***{My understanding of past case law was that the medical expert had to accept the description of
       the accepted work injury... this case puts a new twist on that analysis}

"It is well established that medical expert testimony that specifically addresses the accepted work injuries and unequivocally opines that the claimant has recovered from those injuries is competent and sufficient to support the termination of benefits, even though the expert does not believe the injuries occurred or were the result of the work-related accident."
slip opinion page 10, citing O'Neill v. WCAB (News Corp. Ltd.)(Pa. Cmwlth. 2011).

Practice Pointers:

1. It is imperative that the examining medical expert have an accurate description of the work injury, including any modifications by prior agreements or WCJ decisions. Do not rely upon the accuracy of the original NCP description.

2. A prior WCJ decision may "modify" and/or "amend" the description of injury, based upon the evidence presented, even in the absence of a Claimant Review petition.

3. When pursuing a subsequent Termination petition, assess whether there is an advantage to having the same medical expert perform serial examinations and be in the position to comment upon any change in the worker's physical condition.

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