Thursday, October 10, 2013

Claimant's Termination Petition "Defense" = Change Injury Description!

Employer's Termination Evidence versus Employee's Description of Injury Review.
In a proceeding to establish that liability for a work injury has ceased and "terminated" an Employer has the burden to prove that the employee's disability has ceased OR that any current disability is the result of a cause unrelated to the work injury. In a Termination petition proceeding, the burden of proof never shifts to the employee to prove the existence of a causal relationship between the disability and the work injury.

In the last few years we have read an increasing number of decisions where an employee will contest a Petition for Termination of benefits with an argument that:
(1) the work injury was  not correctly described in the original compensation documents; OR
(2) the work injury (or diagnosis) has changed, such that the original description is no longer accurate;

This observation of an increase of the Petition for REVIEW of the description of injury in the context of a Termination Petition, does not seem to be related to an increase in "stand-alone" Petitions to Review of the description of injury [in my personal experience].

What is the Basis for the Review?
Was the injury not accurately described at the outset?
Has the injury changed, such that the description is no longer accurate.
Who must file the petition to Review/Correct the injury description?
When must the Review Petition be filed?

Harrison v. WCAB (Auto Truck Transport Corp.), No. 769 C.D. 2013, an opinion of a panel of the Commonwealth court of Pennsylvania, authored by Judge Leavitt on October 2, 2013 addressed these Termination Petition and Review Injury Description issues.

Factual and Procedural Background
Employee slipped and injured his right ankle in the course of his duties as a truck driver. (May 2008).
Employer issued a Notice of Compensation Payable LIBC-495 and commenced total disability benefits for a work injury described as a "right ankle sprain".

An Impairment Rating Evaluation (IRE) by Lucian Bednarz, M.D. assigned a 13% impairment rating according to the AMA Guidelines. (August 2010).
Employer filed a Petition for Modification of Employee's benefit status from "total" to "partial" disability.

Independent Medical Examination (IME) by Michael Raklewicz, M.D. determined that employee had fully recovered from the work-related ankle sprain. (October 2010). (29 months of disability for a sprain).
Employer filed a Petition for Termination.

Employee filed a Petition to Review Compensation Benefits, seeking to amend the injury description to include the additional right ankle and foot conditions described by Dr. Bednarz in his IRE report.

Employee also wanted to add the leg fracture and knee injury he suffered when he fell at home in July 2010, which he alleged as a result of instability from the injured ankle.

Employee Medical Expert
Barry Bernstein, DPM the treating podiatrist diagnosed a pre-existing flat foot deformity, a nerve entrapment at the ankle, and a fracture fragment in the rear of the ankle. He performed surgery on the foot and ankle. Employee reported increased pain. He opined it was possible the pain caused Employee to fall and break his leg. Dr. Bernstein opined Employee was not fully recovered. He could not return-to-work as a truck driver.

Employer Medical Expert
Dr. Bednarz considered 2 diagnoses of Employee at the August 2010 IRE:
(1) the ankle sprain and
(2) the pre-existing flat foot deformity
[why? this 2nd diagnosis was not on the NCP?]

The 13% Impairment rating did not include a rating for the ankle sprain as Employee had no residual problems from that condition.
The 13% Impairment rating was wholly attributable to the after-effects of the surgery for Employee's pre-existing congenital flat foot condition.
[why is this included in work-related impairment?]

Dr Raklewicz, a Board -Certified Orthopedic expert reviewed his October 2010 IME findings.
Medical records including MRI shortly after the work-injury showed a mild ankle sprain, which was the original treating MD diagnosis. Bone scan showed  pre-existing bilateral flat feet which he believed caused ankle degeneration. He opined the surgery by Dr. Bernstein was directed to the problems from the congenital flat foot condition, not from the work-related ankle sprain.

Dr Raklewicz opined Employee fully recovered from the work-related ankle sprain. The leg fracture and knee injury from the fall injury at home were related to the pre-existing congenital foot condition, not the work injury.

WCJ Decision:
Modification was granted. Termination was granted. Review was denied
The unrebutted opinions of Dr Bednarz were credited by the WCJ.
Modification from total disability to partial disability was granted as of the August 2010 IRE.

The testimony of Dr. Raklewicz that Employee had fully recovered from the work-related ankle sprain injury was credited. The other foot, ankle and leg problems were found to be related to Employee's congenital condition, not to the work injury. Termination was granted as of the October 2010 IME.

The WCJ denied the Employee Review petition, concluding he failed to meet his burden of proof that the additional conditions were related to the work injury.

Commonwealth Court Decision:
Employee Arguments:
1. Employee argued the IRE report of Dr. Bednarz established the compensable injury was more than an ankle sprain. As the IME report of Dr. Raklewicz only addressed the NCP description of an ankle sprain, his testimony was not legally competent to support an order of Termination.

2. Employee argued the WCJ erroneously placed the burden upon him to prove the additional medical conditions were work-related, when he should have placed the burden upon Employer to prove those conditions were not work-related.

Court Reasoning:
After review of the Employer burden of proof in a Termination petition, the Court noted that the NCP establishes the description of the work injury. Employer must establish a full recovery from the injury described therein. Citing: City of Philadelphia v. WCAB (Butler) 24 A.3d 1120 (Pa. Cmwlth. 2011).

Amendment of Injury Description
"Section 413(a) of the Act allows the WCJ to amend the NCP at any time during litigation of a petition, if the evidence shows the injury sustained in the original work incident is different or more expansive than that listed in the NCP". 
Slip opinion page 6 citing: Cinram Manufacturing, Inc. v. WCAB (Hill) 975 A.2d 577 (Pa. 2009).

This is known as a "corrective amendment", as it corrects a mistake at the time the original document was prepared.

An NCP may also be amended if Claimant files a Review Petition and proves another injury subsequently arose as a consequence of the original injury.The party seeking to amend the NCP has the burden of proving the NCP is materially incorrect.

Employee Burden of Proof Argument.
Employee argued the burden of proof was altered in this case. The IRE report established his post-surgical problems were work related  as Dr.Bednarz considered these conditions in his impairment rating. Accordingly employee did not need to prove that these conditions were work-related, but rather Employer had to prove he was recovered from these conditions, in order to obtain an order of Termination.   As discussed below, this argument was rejected.

IRE as an Amendment of Injury Description?
The IRE is to be based only upon consideration of the "compensable injury".
An IRE determines the claimant's level of disability.
An IRE is separate and distinct from an IME.
An IME  determines whether a claimant has recovered from the work injury.
Dr. Bednarz' consideration of all of Employee's ailments did not "implicitly amend" the work injury to include all of his post-surgical problems.The IRE statutory language at Section 306(a.2) does not provide for an IRE to act as an "automatic" amendment of the description of injury.

Injury Description Amendment
Section 413(a) permits the WCJ to amend the NCP during the litigation of any petition, based upon the evidence, even if a review petition is not filed.
The Court noted an amendment of the injury description could occur in the context of a IRE proceeding, BUT, the WCJ is not required to amend the NCP.
In this case, based upon the evidence, the WCJ did not amend the NCP.
This was not erroneous as a matter of law.

IRE evidence of Injury Description
Upon inspection of the testimony of Dr. Bednarz, he did not opine the work injury extended beyond the sprain description. Out of an abundance of caution he included all of Employee's ankle and foot conditions in his impairment rating calculations BUT he concluded the 13% impairment was based entirely on the pre-existing flat foot condition. Dr. Bednarz specifically assigned "0" percent impairment to the ankle sprain injury. This medical evidence did not support Employee's argument.

It was not erroneous as a matter of law for the WCJ to modify Employee's status referencing  the 13% impairment. The Court noted it would have been more precise for the WCJ to use a "0" % impairment figure for the modification, but that action did not "implicitly amend" the description of the work-related injury.

As noted above, the Court rejected Employee's argument that the WCJ acceptance of the IRE evidence altered the burden of proof among the parties.
Employee argued that the additional injuries to be added to the NCP were in the same body region as the accepted work injury.
Therefore Employer should have been required to show that employee had also recovered from those conditions, relying upon the PA Supreme Court decision at Gumro v. WCAB (Emerald Mines Corp.) 626 A.2d 94 (Pa. 1993). 

Gumro was understood to place the burden of proof in a Termination proceeding, upon the employer where the case involved additional physical injuries that were very similar or at least involved the same body part, as the accepted work injury.

HOWEVER, the 2009 decision in Cinram Manufacturing clarified Gumro.
It is legitimate to allocate the burden of proof to claimant, to prove injuries which are not accepted by the employer. In Cinram, it was a difference between an alleged disc herniation and an accepted lumbar sprain.

"Where the injuries are separate, 'the burden rests with claimants to establish the existence of additional compensable injuries giving rise to corrective amendments, regardless of the procedural context in which the amendments are asserted.' Cinram at 533, 975 A.2d at 582" slip opinion page 10.

This means the burden of proving additional injuries is upon claimant.
HERE, Employee understood that, which is why he filed a Review petition!
Employee did not prevail before the WCJ in the Review petition to amend the injury description.
The Termination petition was properly granted as the Employer medical evidence found a full recovery from the accepted work-related injury and this evidence was found to be credible by the WCJ


1. In a Termination case, provide the IME medical expert with the Bureau documents describing the work injury. 

2. If there are medical conditions which are related, identify those additional conditions for the Medical Expert. 

3. At this point, consider voluntary Amendment of the description of injury to avoid any future controversy regarding the exact description of the accepted work injury.

4. If the work relationship of a medical condition is contested, issue an explanation of benefits letter when that medical billing statement is denied for lack of a causal relationship. 
Communicate this denial to claimant and to the Medical provider.

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