SEARCH KEEP INFORMED

By Date

From   To


MAILING LIST

Receive news, articles and pertinent information from one, or all, of Pietragallo’s practice areas.

Join Our Mailing List

Keep Informed


The Commonwealth Court Holds That Despite a Claimant Undergoing Spinal Fusion Surgery, Involving Bone Grafting and Metallic Fixation, a Termination, Based on a Credible and Persuasive Physician's Opinion Establishing the Claimant's Full Recovery from All Aspects of the Work Injury, Can be Properly Granted


September 16, 2011

Background Facts of Case

Claimant, a stagehand, sustained a back injury on September 11, 2007 while working at Mellon Arena in Pittsburgh, due to a fall.  His injury had been legally described as involving a lumbar level L3-4 disk herniation and a lumbar strain.  As a result of the injury, Claimant was paid partial disability workers' compensation benefits from January 12, 2007 through January 18, 2008, and total disability benefits from January 19, 2008 through July 2, 2008.  On July 3, 2008, he returned to work at his regular job with no wage loss.  The remaining issue to be litigated was whether a full Termination of benefits was deserved, based upon the medical opinion evidence.  The Workers' Compensation Judge (WCJ) and the Workers' Compensation Appeal Board (WCAB) both answered this question in the affirmative. 

In February 2008, Claimant had undergone low back surgery, including an L3-4 decompressive laminectomy, a right-sided microdiscectomy, and a fusion using autologous bone augmented by bone from a bone bank, with screw fixation bilaterally.  During Claimant's testimony, he admitted the surgery had resolved his leg limp.  However, he reported experiencing continued daily back pain symptoms aggravated by weather changes, and also occasional right leg pain.  He addressed the pain by taking ibuprofen.  After returning to his job post-surgery, Claimant did not miss any further work due to back problems, and did not undergo any additional formal medical treatment.  He did have a pre-existing non-work related pars defect, degenerative spinal disease, and spondylolisthesis. 

Dr. Richard Kasdan conducted an independent medical examination on June 30, 2008.  His conclusions were opposed by treating physician opinions that Claimant had not recovered.  The WCJ credited Dr. Kasdan's opinions, that Claimant recovered from his work injury, as persuasive, and he terminated all workers' compensation benefits entitlement effective June 30, 2008.  The overriding issue on appeal was whether Dr. Kasdan's testimony met the burden of proof for the Termination, i.e., did his statements truly establish that Claimant was fully recovered from his work injury? 

Commonwealth Court's Holding

It was noted that Dr. Kasdan's physical exam observed normal range of motion ability of Claimant's back and legs.  There were no neurologic abnormalities detected.  Dr. Kasdan stated that the compensable conditions were resolved by the surgery, and that Claimant, by the time of his evaluation, had fully recovered.  Dr. Kasdan noted that Claimant had a pre-existing condition, a pars defect, which was a congenital crack at the L-3 level that caused the L-4 vertebra to slip.  He stated that a herniated disk does not usually require a fusion, but it was necessary in this case because of the congenital crack.  Dr. Kasdan stated that any aggravation of the pre-existing condition, caused by the work injury, had also been resolved with the surgery.  Dr. Kasdan said that Claimant's reported pain complaints would not cause him to change his medical opinion.  He would suggest back stretching, which he considered prudent advice for anyone that had undergone this type of surgery.  Dr. Kasdan indicated that Claimant's subjective back pain complaints, experienced especially with weather changes, did not mean that Claimant had failed to recover.  He acknowledged that Claimant may even feel the need to take ibuprofen or a hot shower for his subjective back symptoms.  Dr. Kasdan reiterated that Claimant had recovered, in his opinion, from a functional standpoint. 

The WCJ concluded, that Dr. Kasdan's comments about Claimant's potential use of ibuprofen was irrelevant to an inquiry concerning a full recovery; Dr. Kasdan had not recommended the ibuprofen.  Dr. Kasdan had also stated that there was no objective evidence to support Claimant's report of subjective symptoms. 

The Commonwealth Court cited previous case law to the effect that a Termination is appropriate even where a medical expert, credited by the WCJ, testifies that a claimant may experience future symptoms.  Therefore, Dr. Kasdan's testimony was held to be sufficient to warrant a Termination.  The Commonwealth Court continued, stating that if a claimant's testimony, that he subjectively experiences pain complaints, would be sufficient to thwart the pursuit of a Termination remedy, a claimant could forever preclude a Termination by merely complaining of continuing pain.  However, according to the Court, when a credited medical witness' testimony, viewed in its entirety, establishes that a claimant has fully recovered, can return to work without restrictions, and presents no objective medical findings which either substantiate the claim of pain or connect pain complaints to a work injury, a Termination is appropriate, as it was in this case.  Dr. Kasdan had stated that in this case, Claimant recovered, that he could return to work without restrictions, and that his work-related disability had ceased.  He did not testify that Claimant needed more formal medical treatment.  There were no functionally impairing residuals of the work injury remaining.  Accordingly, Dr. Kasdan's testimony was held to be sufficient overall to support the finding that there was no objective evidence to substantiate Claimant's subjective pain complaints, and the Termination was upheld.   

Lesson

First of all, although Claimant, in this case, underwent back surgery, including a fusion involving bone grafting and metallic hardware fixation, his workers' compensation benefits entitlement was nevertheless terminated. All too often, insurers, third party administrators, and self-administered self-insureds, receive an Affidavit of Recovery after an employee has undergone a surgical procedure, and seek only a Suspension, notwithstanding the Affidavit authored by the examining physician.  The rationale behind this action is that many believe a Termination may not be granted where surgery has been performed.  This case evidences otherwise.  While a Suspension should be sought as an alternative remedy by an employer, in certain cases, depending on the facts and the WCJ deciding the case, a Termination should be attempted and, if successful, will be upheld by the Courts, even where an employee has undergone a surgical procedure (even as extensive as a spinal fusion).

Secondly, despite some admissions and flexibility in his opinions, it was nevertheless Dr. Kasdan's overall opinion that Claimant had fully recovered from all aspects of his work injury.  Therefore, as long as a WCJ credits this type of opinion as credible, persuasive, and documented, it is sufficient upon which to base a Termination. 

 If you would like a copy of Schmidt v. WCAB (IATSE Local 3), issued by the Pennsylvania Commonwealth Court on December 15, 2010, and directed to be reported by Commonwealth Court Order of April 26, 2011, or if you are interested in discussing this case and its implications, please do not hesitate to contact any of the members of this firm's Workers' Compensation Group. 

Related Information: