When an employer seeks to modify benefits based on a Labor Market Survey (LMS) it is necessary to establish a change in the work-related medical condition that allows some degree of employment.
This issue was before the Court in Simmons v. WCAB (Powertrack International), No. 2168 C.D. 2013, decided July 24, 2014. The employer had filed and lost two prior termination petitions. The decisions listed the medical conditions and documented some of the employees complaints during each of the proceedings. The established work injury consisted of a closed head injury and post-concussive syndrome with diminished social interaction secondary to depression. The employers new modification petition was based on an independent medical exam (IME) by a neuropsychologist with different findings based on psychological testing administered concluding there was evidence of malingering. These results were far different than the testing performed five years previously which concluded the employees problems were valid. Furthermore the evidence submitted included surveillance of the employee at an auto race in Virginia, a four hour drive away. The Workers Compensation Judge (WCJ) granted the petition and credited the employers IME doctor; finding the employee largely incredible based on the surveillance and the Judges observations of the employee during hearings.
On appeal, the Court notes that the employer does not have to prove a change in employees work-related diagnoses, but only an improvement in symptoms that allow gainful employment. The Court agreed that the employer in this case had established an improvement in the employees medical condition that allowed a return to work. Supporting this conclusion were the findings by the WCJ which credited the evidence submitted by employers IME doctor that the employee was able to work; the depiction of employees activities on surveillance as well as the WCJs observations of the employee during lengthy hearings. The grant of the employers modification petition based on the results of the LMS was affirmed.
Comment: This case demonstrates the attention to detail that is required when an IME is being scheduled in a case with prior litigation and resulting decisions. It is absolutely necessary that the new IME doctor be advised of the prior litigation and be told what the prior litigation determined was the injury and symptoms. The description of injury at the end of prior litigation can differ substantially from the one contained in the initial NCP or decision granting a claim petition and it is important that the IME doctor address the expanded description or different description of injury. Otherwise, the doctors findings and conclusions could be worthless in subsequent litigation. For example, if the NCP states the injury is a low back sprain/strain, but litigation established that the employee actually had a disc at L3-L4 with bilateral radiation of pain into the legs, it would be crucial that the IME doctor deal with the disc and radiating pain during the exam and that the report address these conditions rather than limit the findings and opinions to the injury described on the NCP. IMEs are expensive and you must be alert to this type of situation so you get a valid IME report and avoid the need to have the IME repeated.
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Sara L. De Long