Posted On: June 3, 2011 by Glenn Neiman

Pain and Continuing Effects of Spinal Surgery Does Not Preclude Termination of Workers’ Compensation Benefits in PA

In Pennsylvania workers’ compensation matters, a workers’ comp insurance carrier can only get a “Termination” of benefits when the injured worker is “fully recovered” from his or her injury. This sounds like, and should be, a difficult standard for the insurance carrier to meet. Unfortunately, as happens too often in law, the appearance is deceiving.

Recently, the Commonwealth Court of Pennsylvania decided the matter of Schmidt v. Workers’ Compensation Appeal Board (IATSE Local 3). Mr. Schmidt suffered a herniated disc in his low back and a lumbar strain in an accident at work. For this injury, the injured worker had extensive surgery, which the Court related as:

L3-4 decompressive laminectomy, right-sided microdiscectomy, fusion utilizing autologous laminectomy bone and symphony augmented bone bank bone, pedicle screw fixation at L3 and L4 bilaterally utilizing the Expedium DePuy spine instrumentation
system
.”

Eventually, the workers’ comp insurance carrier sent Mr. Schmidt to an Independent Medical Examination (IME)[More realistically a Defense Medical Exam, or DME]. The IME physician found mild atrophy in Mr. Schmidt’s right leg that he felt would resolve in time. An absent knee reflex was also noted. Finally, the IME doctor agreed that Mr. Schmidt may continue to have pain in his back at times, from the work injury, and use of Ibuprofen for that pain would be reasonable. Despite all of that, the IME noted that none of the findings were “functional” and found Mr. Schmidt fully recovered from the work injury (to add to the absurdity, the surgery placed instrumentation, possibly metal rods, in the low back, which were still there).

The Workers’ Compensation Judge (WCJ) found the IME doctor credible and granted the Petition to Terminate. On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed. The injured worker appealed to the Commonwealth Court of PA. At that Court, he argued there cannot be a Termination of benefits when even the IME doctor agrees there remains atrophy, lost reflex, ongoing pain and surgically placed instrumentation in the spine.

Amazingly, the Court agreed with the WCJ and WCAB and affirmed the Termination of benefits under the PA Workers’ Compensation Act. The Court found the testimony of the IME doctor sufficient to support a Termination. That testimony failed to indicate there were “objective medical findings to substantiate the claim of pain,” which, said the Court, is consistent with a Termination of benefits. The opinion of the IME doctor was that the work-related injury had fully resolved, and this was found adequate by the Court.

Decisions such as this sadden and disappoint those of us who devote our practices to representing injured workers in Pennsylvania. The Courts in PA often give lip service to the fact that the PA Workers Compensation Act is “remedial legislation” and must be read “liberally” to allow the Act to serve its “humanitarian purposes.” When it comes time for the ultimate decision, however, it is hard to picture a more draconian result.

The injured worker in this case suffered a significant injury, and had to have an extensive surgery. He continues to have completely objective findings, such as atrophy and lost reflex in the knee. How in the world can this be “fully recovered” under any definition?

There was no compensation for his pain and suffering. Since Pennsylvania is a “wage loss” State, as long as the injured worker was able to go back to gainful employment (and to his credit, he was), no additional compensation was due at all. All that remained was the availability of medical treatment, and the Court callously slammed the door shut on that. What happens if the instrumentation, which was surgically implanted in the spine, breaks or comes loose? What happens if the pain worsens, so that additional prescriptions are necessary? What if the medications are not sufficient, and additional pain management techniques are required? It appears the Court has officially stated that, for the record, nobody cares.

This is the plight of the injured worker in Pennsylvania, and this is the reason we dedicate our practice to working to protecting injured workers’ rights throughout the State of Pennsylvania.