The Disregarded Diagnosis—How to Litigate the Termination Petition Without an Unreasonable Contest

By Andrea Cicero Rock, Esq. and Raphael Duran, Esq.*

Both defense attorneys and insurance adjusters have been in the situation where they receive an IME report in which the doctor seems to have disagreed with the work-related diagnoses or ignored what was judicially determined as work-related by a workers’ compensation judge. While this isn’t the ideal situation, case law exists that will assist your defense attorney in litigating a termination petition to conclusion, without risking unreasonable contest. This article will provide information as to how you can salvage a termination petition in these situations.

A claimant’s benefits under the Pennsylvania Workers’ Compensation Act may be terminated where the employer establishes by unequivocal and competent medical testimony that the claimant’s disability has ceased or that any remaining disability is not connected to the work-related injury. O’Neill v. WCAB (News Corp. Ltd.), 29 A.3d 50, 53 (Pa.Cmwlth. 2011). An employer can meet this burden of proof by obtaining an IME report in which the doctor opines that the claimant is fully recovered. The doctor must then testify unequivocally that, assuming the accepted injury to have occurred, the claimant is fully recovered from such injury.

However, the IME doctor is bound by the work-related injury description either judicially determined by a judge, or unilaterally accepted by the employer via notice of compensation payable, agreement for compensation or the like. Since the employer may not re-litigate the nature of the accepted work-related injury—as this would be a collateral attack on the prior judge’s decision—a medical expert’s opinion will not support a termination of benefits if that medical expert does not acknowledge the accepted work injuries and does not opine that a full recovery has been made from those injuries. Gillyard v. WCAB (Pennsylvania Liquor Control Board), 865 A.2d 991, 996 (Pa.Cmwlth. 2005); GA & FC Wagman, Inc. v. WCAB (Aucker), 785 A.2d 1087, 1092 (Pa.Cmwlth. 2001).

There is no requirement, however, that the medical expert believe that the claimant actually suffered the accepted work injuries, or believe that the accepted work injuries were, in fact, work related. A medical expert’s opinion is competent if he assumes the presence of that injury and opines that the injury was resolved by the time of the IME.

For example, in Pazymino v. WCAB (Crime Prevention Association), 2013 Pa. Commw. Unpub. LEXIS 157 (Pa.Cmwlth. Feb. 26, 2013), the defense medical expert, Dr. Malumed, was asked a hypothetical question. He was told to assume that additional injuries were related to the work injury. He accepted the assumption and opined that the claimant was fully recovered from those injuries. Because Dr. Malumed’s testimony was competent and sufficient to establish that the claimant’ disability had resolved and that any remaining problems were not related to the work injury, the termination of the claimant’s benefits was properly affirmed.

Moreover, in Thao To v. WCAB (Insaco, Inc.), 819 A.2d 1222 (Pa.Cmwlth. 2003), the IME physician credibly testified that he believed that there was no connection between the claimant’s current complaints due to medical and physiological impossiblity. He also opined, within a reasonable degree of medical certainty, that there was no connection between the claimant’s complaints and the event that may or may not have occurred in the course of his employment with the employer. Lastly, the expert credibly testified that the claimant had a normal examination, that there was no evidence of a medical impairment, that there was no reason for ongoing care and that the claimant had made a full and complete recovery from any injury he may have sustained in the course and scope of his employment. For these reasons, the Commonwealth Court found that the defense medical expert supported the employer’s burden in a termination petition proceeding.

Practically speaking, this case law means that, even if the doctor’s IME report states that he or she doesn’t believe that the claimant sustained a certain injury that had previously been accepted, or if the report lacks a description of injury that is exactly correct, a termination petition may still survive. The defense attorney must ensure that the medical expert testifies, within a reasonable degree of medical certainty, that: (1) the claimant has fully recovered from the specific work-related diagnosis; and (2) the claimant is fully recovered from any and all injuries that the claimant might have sustained on a given date. The attorney should ask the physician to assume a causal connection and to assume that, if such diagnoses were there, whether the claimant had fully recovered by the time of the examination. If the doctor can opine that the claimant has fully recovered, the employer can meet their burden of proof to terminate benefits.

*Andrea and Raph are associates in our Philadelphia, Pennsylvania, office. Andrea can be reached at 215.575.2756 or acrock@mdwcg.com. Ralph can be reached at 215.575.2710 or rmduran@mdwcg.com.

Defense Digest, Vol. 19, No. 4, December 2013

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal 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 © 2013 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.