Tuesday, May 7, 2013

Inconsequential Injuries nearly Defeat Termination Request

Employer's burden of proof in a Petition for Termination of workers' compensation benefits is well known ... The Burden of Proof is on the employer to establish that claimant has fully recovered from his/her work injury OR that any remaining disability is no longer the result of the work injury.

Over the past few years, it seems there are more Employee petitions to Review the Description of Injury, filed concurrent with the Employer Termination Petition. This may be a matter of litigation strategy, or it may be a consequence of the lack of Review of the description of injury.  Often the injury description has not been altered since the time of issue of the original compensation documents.

In represention of Employers and Insurers, one recurring theme is proof of whether the Employer medical evidence has established that Employee has fully recovered from ALL disabling medical conditions, arising from the work injury.

Graham v. WCAB (Wordsworth Academy), No 1755 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge McGinley on May 3, 20013 recently reviewed this issue.

Factual & Procedural Background

Employee tripped and fell, striking her head, in the course of her work duties as a training administrator for Employer. A Notice of Compensation Payable was issued. Her injuries were described as contusions to her face, scalp and neck. She alleged further symptoms of extreme fatigue, headaches, "dazes", impaired reading and math skills and memory issues.

She filed a Petition to Review the description of injury to include "brain injury and concussion".

Employer filed a Petition for Termination, alleging a full recovery based upon Medical Examination.

Employee medical evidence, Drs. Pelensky (internal medicine & physical medicine and rehabilitation) and Hopwood (a neuropsychologist) opined she was disabled from post-concussive syndrome with ongoing cognitive deficits and persistent headache.

Employer medical evidence, Dr King (licensed psychologist) opined she was fully recovered based upon: (1) the history of worsening symptoms was not consistent with post-concussive syndrome, (2) there was no objective evidence of memory impairment, (3) mental status evaluation was normal, (4) CT scan and MRI of the head were normal.

WCJ decision: Denied Employee Review to expand the description of injury ( a reinstatement petition was also denied). Employer Termination Petition was granted in part and DENIED in part.

The WCJ found Employee fully recovered from any concussion symptoms BUT the Employer did not prove she fully recovered from the face, neck and scalp CONTUSIONS !
[note the WCJ decision was 22 months after the date of injury]

WCAB decision modified the result in the Employee Review petition. The WCJ assigned credibility to the medical evidence that employee did suffer a mild concussion, but that she fully recovered from that condition.
Denial of Employer Termination was REVERSED.
Employee medical expert diagnosis did not include any contusions.
Employee agreed at the WCJ hearing that she did not have any cuts, scrapes or bruises and no scarring from the work injury.

Commonwealth Court decision AFFIRMED the denial of Employee Reinstatement and AFFIRMED the reversal and grant of the Termination Petition.

The WCAB correctly relied upon the prior Commonwealth Court decision in Jackson v. WCAB (Resources for Human Development) 877 A.2d 498 (Pa. Cmwlth. 2005).
Jackson involved an employer termination petition, where the injuries included back, knee and arm injuries including a bruised elbow. The employer medical witness never mentioned the arms. BUT the employee medical witness stated he did not find any arm injury. Employee testified her complaints were at the back, hip and knee. This evidence was sufficient to support the Termination.

In Graham, she testified she had no cuts, bruises or scrapes and no scarring on her face. Her medical witness did not describe any contusions. The WCAB did not err in concluding that evidence supported the legal conclusion that the work related contusions had resolved and employee was "fully recovered". This is a "common-sense" sort of conclusion, as any contusion would have resolved over the course of time, preceding the termination petition litigation.

Practice Pointers:

1. This decision and discussion highlight the necessity of "matching" the medical evidence to the work injury. At times, the initial description of the work injury is no longer accurate. (think lumbar sprain/strain followed by an MRI of herniated disc). The Compensation Agreement may remain un-amended ... but for all practical purposes the description of injury has changed. The Medical Expert should review all of the medical records and discuss each diagnosis of the treating physicians.

2. Consider amendment of the description of injury in the compensation documents, so there is no "unanticipated" debate or argument that the IME medical evidence does not "match" the work injury and cannot support an order of Termination.

3. Provide your medical expert with all medical records of treatment, consultation reports and diagnostic test results. This may involve additional time and/or expense... but this preparation will increase your prospects for a successful litigation result.

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