Typical Strategies for Stopping Workers’ Compensation Claims
What’s Next? Typical Strategies for Stopping Workers’ Compensation Payments
Some injured workers claims are readily accepted, and some must be litigated, but there will come a time in almost every claim when workers’ compensation benefits will stop. When injured workers in Pennsylvania are receiving workers’ compensation wage loss benefits, there are only a limited number of ways in which an employer, or its insurance carrier can seek to reduce, or modify those benefits. “What happens after an IME?”, “What is the IME capability of a claimant?”, “What is the impact of an IME on a claimant?”, or “Will an IME interrupt the flow of a workers comp claim after a medical examination, or evaluation?”, this article will review these aspects of the workers comp process after an IME, and discuss some of those strategies.
Firstly, it is important to realize that claimants’ wage loss (also called “indemnity”) benefits are calculated as a function of their pre-injury average weekly wage. In general, the idea behind the Pennsylvania Workers’ Compensation Act is that if the claimant cannot earn his, or her pre-injury wages as a result of the work injury, the claimant is entitled to either total disability benefits, or partial disability benefits. Employers, and their insurers have an interest in cutting off, or reducing those benefits. That process typically starts with a medical exam so that the employer can assess the claimant’s medical restrictions. This exam is commonly referred to as an Independent Medical Exam, or IME, or a Defense Medical Exam, or DME. It has generally been accepted that an employer is entitled to a physical examination every six months, although there are circumstances in which the injured worker can challenge the reasonableness, or the frequency of an examination.
Typically the IME doctor will release the claimant to return to some kind of work. If the doctor gives the opinion that the claimant’s injury has ceased entirely, and the claimant can return to full duty, the employer will likely file a Termination Petition seeking an Order from a Workers’ Compensation Judge. If the employer is successful in terminating a claimant’s benefits, then both wage loss benefits, and medical benefits will be stopped.
If the IME doctor says that the employee’s injury has not completely healed, but that the employee can return to modified duty work, then the employer will seek to file a Modification, or Suspension Petition. Both of these petitions seek to change wage loss benefits only, as all treatment which is reasonable, necessary, and related to the continuing injury will still be paid for by the workers’ compensation insurance carrier. A suspension is appropriate when the injured workers’ earnings are no longer affected by the work injury. For instance, if after receiving the IME report the employer offers the injured worker a light duty job which falls within the restrictions of the IME doctor, the burden then shifts to the claimant to either try the job, or explain why he cannot do the job in good faith. This scenario is frequently played out in workers’ comp courtrooms, where the IME doctor has an opinion as to what the injured worker can do, but the worker’s own treating doctor has a very different opinion, and the judge must decide which doctor is to be believed. Even if the injured worker would make less than her pre-injury wages by working light duty, the employer can still be entitled to a modification of the worker’s wage loss benefits – this is referred to as “partial disability,” meaning that wage loss benefits will continue, but at a reduced rate, and only for a maximum of 500 weeks.
Often the time-of-injury employer cannot accommodate the light duty restrictions of the IME doctor, and therefore cannot offer the injured worker a job. There are two other common strategies used by these employers to seek to reduce the workers’ wage loss benefits. One is to find the worker a job which accommodates the restrictions with a different company altogether. Another is to have the claimant undergo a vocational interview, to assess the claimant’s residual earning capacity, taking into account the claimant’s age, work history, medical restrictions, and skills. This is called an Earning Power Assessment. The vocational expert can then perform a labor market survey to determine whether there are any jobs in the local economy which are appropriate for, and actually available to the injured worker. If so, the employer can file a petition with the Workers’ Compensation Bureau to seek to modify, or suspend the injured worker’s benefits based on the earnings the worker might be able to earn at the jobs identified by the vocational expert.
It is important to know that in most instances a claimant who is receiving benefits cannot simply be “cut off” by any of these strategies. The flow of a workers’ compensation claim after a medical exam can take many different paths, but the majority of those paths require litigation, and the order of a Workers’ Compensation Judge before the employer, or its insurance carrier can simply stop, or modify the claimant’s benefits. This article is by no means an exhaustive list of the ways in which an employer can reduce an employee’s benefits, nor does it seek to discuss the many, and varied defenses which a claimant might have in order to preserve his, or her benefits. Any injured worker, or employer with questions about these issues is well-advised to consult with experienced workers’ compensation counsel.
The attorneys of Wolf, Baldwin & Associates, P.C. are no strangers to Pennsylvania workers’ compensation courtrooms. We have been practicing in this specific area of the law for over thirty years. Insurance companies will always be represented by workers’ compensation attorneys who are experienced in PA workers comp law. You require, and deserve, expert advice as well. If the insurance company unfairly denies you your rights, we will fight the workers’ comp insurance carrier for your right to receive Workers’ Compensation in Pennsylvania. Please click on the links below to learn more, or click here to contact us now to learn more about your right to PA workers compensation.