Friday, March 15, 2013

Termination Remedy in Long-standing Lumbar Condition

The Employer's ability to secure a termination of workers' compensation liability, where the injured worker has a pre-existing non-occupational medical condition and the worker sustained a work injury to the same body region, is a recurring issue in work comp claims handling.

Another recurring issue is the extent of workers compensation liability based upon the description of accepted work injury. The description of the work injury is significant in a termination proceeding, as the Employer's examining medical expert must opine that the work related disability has ceased or that the remaining symptoms/disability are the result of a non-occupational condition.

Pleas v. WCAB (School District of Philadelphia), No. 1342 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Pellegrini on March 6, 2013 discussed these issues.

Factual & Procedural History

2002 Lumbar Laminectomy
July 2004 work injury, NCP describes "lower back strain and sprain".
March 2005 Lumbar laminectomy
November 2005 history of "pop" in back while at home
October 2008 Impairment Rating Determination 25%
July 2009 IME full recovery, Richard G. Schmidt M.D.
January 2010 Termination petition filed
February 2010 lumbar spine stimulator implanted

Employee medical evidence

Richard H. Kaplan M.D. treated employee since March 2007 for diagnoses of an aggravation underlying degenerative joint disease of the spine and recurrent disc herniation.
He also diagnosed failed low back surgery syndrome and chronic pain.
He recommended spinal cord stimulator, as necessitated by the work injury.
He acknowledged there was a long-standing history of degenerative lumbar findings.
He opined employee was totally disabled as a result of the work injury.
He did not compare employee's prior lumber MRI studies, pre-injury and post-injury.

Employer Medical Evidence

Richard G. Schmidt M.D. examined employee in 2008 and 2009.
Employee history was of lower back symptoms since the early 1990's.
Physical exam was improved 2008 to 2009.
Pre-Injury MRI February 2002 showed L5-S1 left lateral herniation
                   MRI August 2003 showed L4-5 left disc herniation, with post-op changes at L5-S1
                   MRI February 2004 showed L4-5 left lateral herniation, with post-op changes at L5-S1

*** There were no disc abnormalities, pathologies or injuries on any of the post-work injury MRIs that were not present on the pre-work injury MRIs.

Dr Schmidt opined that employee fully recovered from the work related lower back strain and sprain.

WCJ Decision

Termination granted. Dr. Kaplan was not credible to support diagnosis of aggravation of underlying degenerative joint disease of the spine as there was no evidence to suggest that claimant's work injury caused or aggravated any disc pathology.
He did not review and compare the pre-injury and post-injury MRI test results.

WCJ found the 2005 lumber surgery was not causally-related to the work injury, based upon review of the pre and post injury scans.

Commonwealth Court discussion

Employee argued WCJ capriciously disregarded competent medical evidence.
He had 2005 surgery due to aggravation of pre-existing condition... it was undisputed he suffered from post-laminectomy syndrome.

No, the accepted work injury was " lower back strain and sprain".
There was no claim being made or evidence of record to support a finding that the NCP was materially incorrect or to warrant amending the NCP to include disc pathology at any level including L4-5 and L5-S1.  The WCJ specifically found no causal relation between the work injury and 2005 surgery.
[slip opinion pages 6-7 citing WCJ finding #8].
Whether employee was fully recovered from unrelated 2005 surgery was irrelevant to this termination determination.
There was no capricious disregard of competent medical evidence, rather the WCJ made necessary credibility determinations, which are supported by the record. No error here.

Practice Pointers:
1. Termination remedy is available where work related condition has ceased. Before the IME,
    document the extent of the work injury. Has the description of injury been amended by agreement or
    WCJ decision?

2. Take the extra time and expense to have the prior diagnostic test films available for review and
    comment by your medical expert.

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