No Real “Change” Needed to Show Termination; Penalty of Zero Correct for Unlawful Refusal to Pay for Surgery

When the Supreme Court of Pennsylvania decided Lewis v. Workers’ Compensation Appeal Board  back in 2007, we attorneys who represent the injured worker thought things had really changed.  No longer could the workers’ comp insurance carrier file Termination Petition after Termination Petition in an endless series to evade the payment of benefits.  Indeed, there were cases from Commonwealth Court of PA shortly after Lewis which gave us real hope.  Unfortunately, that same Commonwealth Court has now pulled that hope away.

In Baumann v. Workers’ Compensation Appeal Board (Kellogg Company), the injured worker suffered a right shoulder and upper back strain, and a right C6 radiculopathy was later added, as a result of a car accident while he was performing his job duties in 2007.  In November, 2009, a Workers’ Compensation Judge (WCJ) issued a decision denying a Petition for Termination.

Following another Defense Medical Examination (DME, laughingly referred to officially as an “Independent” Medical Examination, where nothing is independent) with the same expert as in the prior litigation, the workers’ compensation insurance carrier filed another Petition for Termination in 2010.

This time the workers’ comp insurance carrier got a different WCJ, and the Petition for Termination was granted.  An appeal was filed by the injured worker, with the Workers’ Compensation Appeal Board (WCAB), since there was no change shown from the prior litigation.  The WCAB affirmed the decision anyway.

The injured worker then appealed to the Commonwealth Court of Pennsylvania, but they, too, affirmed the decision by the WCJ.  After explaining the Lewis decision, the Court then threw all of that reasoning in the trash:

“This Court has declared that a change sufficient to satisfy the Lewis requirement exists if there is a lack of objective findings to substantiate a claimant’s continuing complaints.”

Or, in other words, there is no change required to be shown, even though a change is required to be shown.  The record does not reflect whether the attorney for the injured worker asked the insurance carrier’s medical expert whether there was any change between his two examinations.  This would seem to be a significant question and answer, if, indeed, it was asked.

Additionally, the injured worker had filed a Petition for Penalties, because the workers’ compensation insurance carrier allegedly “notified Claimant’s surgeon that Employer would not pay for Claimant’s March 18, 2010 right shoulder surgery, which resulted in the surgery’s cancellation.”  The WCJ deemed this allegation correct, but assessed a penalty of . . . zero.  The WCJ explained this was largely because she felt the surgery was not necessary or indicated (since there had been a large gap in treatment and she did not find the complaints of the injured worker credible or consistent with his activities).  This was affirmed by both the WCAB and Commonwealth Court, each saying the imposition of penalties is discretionary with the WCJ.

This latter issue may be even more troubling than the former.  When the workers’ comp insurance carrier violated the law by telling the surgeon they would not pay for the surgery (and there appears to be no denial this did take place), they did not have the blessing of a WCJ.  This was an unlawful, unilateral action taken by the insurance company which is not permitted under the Act.  Guess what the next insurance carrier will do when faced with this situation?  Think they might do the same thing?  The purpose of penalties is to discourage bad behavior – this decision does the very opposite.  Indeed, it does not appear to even be raised that the insurance carrier had relief available under the Act, the filing of a Utilization Review, but instead elected to blatantly violate the Act.  We just have concerns about the message being sent.