Board denies termination petition but also criticizes claimant’s current medical treatment.

The Board noted that, as the moving party, the employer has the burden of showing that the claimant is not completely incapacitated or, in other words, is medically employable. The Board resolved this dispute between the medical experts by accepting the claimant’s evidence, finding that the employer had not met its burden of proving that the claimant was physically capable of returning to work. The Board did not agree with the employer’s medical expert’s opinion that the claimant could perform full-time sedentary work, but they also did not agree with the claimant’s expert, who opined that the claimant would never return to work and was permanently and totally disabled. Instead, the Board accepted the opinion of the claimant’s second expert, that the claimant may be able to perform some type of work, but she could not do it on a regular basis. The Board reasoned that, while increased activity would be beneficial for the claimant, it was not yet the right time to put her in a structured work environment.

Interestingly, the Board did go to some length to criticize the claimant’s current medical treatment. They pointed out that the recently started pain management treatment was running the risk of falling into what they described as the “standard pain management medication malaise,” stating that the claimant’s current treatment plan is not serving her well. Instead, it should be focused on increasing her activity tolerance, weaning her off the narcotic medications and ultimately getting her to return to work. The Board went so far as to state that the lack of an attempt by the claimant or her treating physicians to implement a meaningful treatment plan designed to improve her functionality and ability to return to work will reflect negatively if the employer should refile for termination of benefits in the future. However, based on the current absence of any real attempts to address the issues that are preventing the claimant from a successful return to work, the Board concluded that she was, in fact, unable to return to work. The employer’s petition was denied.

_{Case Law Alerts, 4^th Quarter, October 2018}

_{Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2018 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}