Medical Suspension Has Life
Pennsylvania - Workers' Compensation
Ask yourself the below set of questions, and if the answers are yes, then this article is for you.
- Have you scheduled a §314 independent medical examination (IME), and the claimant failed to attend?
- Has the claimant failed to produce a reasonable excuse for not attending the IME?
- Have you filed a petition to compel the §314 IME?
- Have you received an order, rescheduled the §314 IME and the claimant again failed to attend?
- Has the claimant again failed to produce an excuse for not attending the IME?
- Have you filed a petition for suspension due to the claimant's failure to attend the IME?
- Has that petition been granted and you still had to pay medical benefits?
- Have you encountered all of these facts in a medical only claim?
It has long been the standard under the above circumstances that defendants could challenge a claimant's right to future indemnity benefits but not medical benefits without running the risk of a penalty. However, a Commonwealth Court decision has brought a glimmer of hope to defendants' right to seek a suspension of medical benefits if a claimant fails to attend a judge-ordered IME.
The applicable section of the Pennsylvania Workers' Compensation Act governing the employer's right to have a claimant attend an IME is §314. Section 314 of the Act provides in pertinent part:
(a) At any time after an injury, the employee, if so requested by his employer, must submit himself at some reasonable time and place for a physical examination or expert interview by an appropriate health care provider or other expert, who shall be selected and paid for by the employer. If the employee shall refuse upon the request of the employer, to submit to the examination ... by the health care provider ... selected by the employer, a workers' compensation judge assigned by the department may, upon petition of the employer, order the employee to submit to such examination or expert interview at a time and place set by the workers' compensation judge and by the health care provider ... selected and paid for by the employer or by a health care provider or other expert designated by the workers' compensation judge and paid for by the employer. The workers' compensation judge may at any time after such first examination ... upon petition of the employer, order the employee to submit himself to such further physical examinations ... as the workers' compensation judge shall deem reasonable and necessary, at such times and places and by such health care provider or other expert as the workers' compensation judge may designate; ... The refusal or neglect, without reasonable cause or excuse, of the employee to submit to such examination ... ordered by the workers' compensation judge, either before or after an agreement or award, shall deprive him of the right to compensation, under this article, during the continuance of such refusal or neglect, and the period of such neglect or refusal shall be deducted from the period during which compensation would otherwise be payable. (Emphasis added.)
Courts have often interpreted the words "right to compensation" to include indemnity benefits only. However, the Commonwealth Court in Giant Eagle v. W.C.A.B. (Givner), 984 A.2d 1034 (Pa. Cmwlth. 2009) has opened the door for Workers' Compensation Judges to suspend medical benefits in certain circumstances. The issue for the Commonwealth Court in Giant Eagle was whether a claimant was entitled to medical benefits for the time he failed to attend a judge-ordered IME. In Giant Eagle, the claimant suffered a work-related injury for which a Notice of Compensation Payable was issued, entitling the claimant to benefits. The employer was later successful in modifying the benefits per a judge's decision and two different Supplemental Agreements. The employer filed a Petition to Modify/Review, alleging the claimant was capable of performing work, and the claimant failed to return to work. The judge ordered an IME, and the claimant failed to attend. Thereafter, the employer filed a Suspension Petition, and the judge granted the petition and awarded a suspension of indemnity only until the claimant attended the IME.
The employer appealed to the Workers' Compensation Appeal Board, asserting that a suspension of medical benefits in conjunction with the indemnity benefits should have been granted. The Appeal Board affirmed the judge's decision, and the employer filed an appeal to the Commonwealth Court.
It was the defendant's position that §314 dictated that a claimant be denied all compensation, medical and indemnity, for failing to attend a judge-ordered IME. The Commonwealth Court noted that the issue of whether "compensation" included both medical benefits and wage loss benefits was actually a matter of first impression. Although the Appeal Board relied upon O'Brien v. W.C.A.B. (Montefiore Hospital), 690 A.2d 1262 (Pa. Cmwlth. 1997) to support that "compensation" did not include medical, the Commonwealth Court emphasized that the O'Brien case dealt with §413, not §314. The court in O'Brien determined that the definition of "compensation" is to be made on a section-by-section basis and that, in cases where the employer's liability has already been determined, medical expenses and compensation are considered to be separate.
As such, the court in Giant Eagle held that, since liability had already been determined in the instant case, the term "compensation" could refer to wage loss benefits only. However, the court further held that under §314(a), suspending both medical and wage loss benefits is a matter that falls within the sound discretion of the judge, subject to review for an abuse of discretion. The Commonwealth Court, in a footnote, specifically stated:
We recognize that a case may arise where a workers' compensation judge may find it appropriate to suspend both medical and wage loss benefits to vindicate the purpose of the statute, such as instances where a claimant has already had his wage loss benefits suspended, and persists in continued violation of the Act. We do not constrain workers' compensation judges by forcing them to allow claimants to refuse medical examination while continuing to receive medical benefits.
Thus, the Giant Eagle Court has set the stage to allow trial judges, at their discretion, to suspend a claimant's medical benefits for blatant failure to attend a judge-ordered IME. Courts have finally recognized the prejudice and irreparable harm to defendants who are required to pay medical benefits for an accepted injury when wage loss does not exist or wage loss is suspended and the claimant fails to attend a judge-ordered IME.
For defendants, the answers to all the questions above do not always have to be yes, but can now be no.
This article originally appeared in the May 2011 issue of the Pennsylvania Self-Insurers' Newsletter and is reprinted with their permission.
*Michele, a shareholder in our Philadelphia, Pennsylvania, office, can be reached at 215.575.2724 or firstname.lastname@example.org.
Defense Digest, Vol. 17, No. 2, June 2011