The most damaging petition a workers’ compensation insurance carrier can file against an injured worker in Pennsylvania is a Petition to Terminate. If granted, a Petition to Terminate ends the injured worker’s rights to all PA workers’ compensation benefits for his or her injury, whether wage loss replacement (known as “indemnity”) or medical.
Because the consequences of a Petition to Terminate are so great, the standard for a Workers’ Compensation Judge (WCJ) to grant such a petition is supposed to be high. Specifically, the workers’ comp insurance company must prove that the work-related injury has fully resolved.
Though a doctor need not utter any magic words to show an injured worker has fully recovered from his or her injury, the opinion must be clear and unequivocal. Merely being released back to unrestricted work, by itself, is not proof the work injury has fully resolved (this does not even entitle the insurance carrier to a Suspension, let alone a Termination).
In Richard Miller v. Workers’ Compensation Appeal Board (Peoplease Corp), the Commonwealth Court of Pennsylvania recently addressed exactly what was required to support a Termination of workers’ comp benefits in PA. Here, the injured worker suffered a herniated disc in his cervical spine which caused radiculopathy (when the disc presses on the nerve, causing symptoms down an extremity). As a result of this injury, an orthopedic surgeon operated on the injured worker’s neck, to relieve the pressure on the nerve.
When the orthopedic surgeon released the injured worker back to unrestricted duty, and said he was all better, the workers’ comp insurance carrier filed a Petition to Terminate. The WCJ found the orthopedic surgeon credible and granted the Petition to Terminate. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).
The Commonwealth Court of Pennsylvania, however, reversed that decision. The Court found the opinions of the orthopedic surgeon to be less than unequivocal, and unable to support a finding that the work injury was fully resolved. The orthopedic surgeon stated that the pain was “largely resolved,” that it was “hard to say” if there was any permanent damage to the spinal cord, that the surgery was a success because the injured worker did not “decline in function,” and that the most recent MRI did not show any “significant pressure” on the spinal cord. The Court found this testimony equivocal as to whether the injured worker fully recovered from his work injury.
While the position taken by the Commonwealth Court of Pennsylvania is both refreshing and encouraging to injured workers, and their attorneys, across PA, one should not lose sight of the fact that in this case the primary witness for the workers’ comp insurance carrier was the injured worker’s own orthopedic surgeon. It would appear the Hippocratic Oath, in which doctors swear to do no harm or injustice to their patients, has limited application to the legal side of a patient’s situation.