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By: Jeffrey D. Snyder, Esquire
A. THE CASE:
The Supreme Court of Pennsylvania, in the case of Giant Eagle, Inc. V. WCAB (Givner), No. 14 WAP 2010, decided on March 12, 2012, affirmed a Commonwealth Court holding that a claimant who fails to attend a Court ordered Independent Medical Examination (IME) without reasonable excuse can be subject to the suspension of medical benefits, in addition to wage loss benefits, as a ”measured and gradual” sanction to attempt to secure compliance with the Order.
B. THE NARROW ISSUE PRESENTED TO THE SUPREME COURT OF PENNSYLVANIA:
The narrow issue accepted by the Supreme Court for its review was:
“Whether ‘compensation’ must include medical benefits as well as wage loss benefits under Section 314(a) of the Workers’ Compensation Act.” (emphasis supplied)
In addressing this narrow issue, the Court determined that “compensation” as used in Section 314(a) of the Pennsylvania Workers’ Compensation Act (Act) [that section of the Act that permits ordering attendance at an IME] can encompass, but need not encompass, medical expenses notwithstanding the availability of Utilization Review.
In other words, an employer may obtain a suspension of reasonable and necessary medical benefits to secure compliance, but does not have the ‘right’ to such relief, as the granting of a suspension of medical benefits remains within the discretion of the Judge.
C. WHAT DOES “COMPENSATION” MEAN?:
Arriving at the conclusion that the term “compensation” as used in Section 314 includes medical benefits, the Court examined various uses of the term “compensation” in various other sections of the Act to discern Legislative intent, as it considered itself required to do so under Berwick Industries v. WCAB (Spaid), 643 A.2d 1066 (Pa., 1994).
The Court concluded that “compensation” as used within the Act sometimes refers only to wage loss benefits and other times may be implied or does more explicitly encompass medical benefits – depending on purpose and context. The Court pointed out, for example, that the statute of limitations is a bar to compensability for both wage loss and medical benefits, while other sections of the Act, such as Section 308, refer to periodic payment of compensation, as opposed to medical benefits to be provided: “as and when needed”.
D. WHAT ARE THE PROCEDURAL STANDARDS? WHAT ARE THE LIMITS OF DISCRETION?:
Suspending medical benefits on a failure to attend an ordered IME, the Court deferred the precise procedure for later definition. In Giant Eagle, the Supreme Court instructed: “This mechanism is gradual and measured.”, referring further to the mechanism as: “… the measured temporary punishment imposable should he or she refuse.”.
Are we looking at a two step process?
Must the employer first request the suspension of wage loss benefits, and only then have standing to request the suspension of medical benefits on further non-compliance, or is it appropriate to request the relief of the suspension of both wage and medical benefits when initially requesting relief for a failure to attend without reasonable excuse under Order?
Given the Court’s instruction of “gradual and measured” sanctions to encourage compliance, it would seem that indeed there is to be a two step process.
What factors are to be considered and what are the limits of discretion in such circumstance?
If wage loss benefits are suspended and non-compliance continues, does a Judge have unfettered discretion to refuse to suspend medical benefits, or does the burden of proof, or at least the burden of persuasion, shift to the Claimant to show why such relief should not be granted to the employer?
An ancillary question presented is what additional burdens, if any, are going to be placed on the Supersedeas Fund, and ultimately on those entities that fund it, given this new potential for overpayment of [admittedly reasonable, necessary and related] medical expense if an abuse of discretion in the denial of suspension of medical benefits is ultimately established?
E. Does the holding in this Opinion extend to the refusal of reasonable medical services? Does “all” mean all?:
Does this Supreme Court Opinion provide the employer with other potential relief in the context of the refusal of reasonable medical services?
Consider this fact pattern: a claimant sustained a soft tissue orthopedic work injury some years ago and entered into a commutation of wage loss benefits; that claimant continues to treat with pain management, also consuming a large quantity of addictive prescription medication; that claimant is a Medicare beneficiary and that Medicare requires several hundred thousand dollars to approve a set- aside trust; Utilization Review favors the claimant; an IME finds full recovery and recommends detoxification that will present no undue risk, has a high probability of success and has the goal of reducing disability; and that claimant refuses detoxification.
Forfeiture during the period of non-compliance (i.e., a suspension of wage loss benefits) is essentially a moot point, as wage loss benefits have been commuted.
What “gradual and measured” sanctions will encourage the claimant to enter the detoxification program? The only sanction available is the suspension of medical benefits, exactly as provided for by this Supreme Court Opinion in the context of the refusal without reasonable excuse to attend an ordered IME.
This Supreme Court Opinion has left issue of applicability to the refusal of reasonable medical services as open question in its review of the meaning of “compensation” as used in Section 306 (f.1) (8), a section of the Act which provides:
“If the employe shall refuse reasonable services of health care providers, surgical, medical and hospital services, treatment, medicines and supplies, he shall forfeit all rights to compensation for any injury or increase in his incapacity shown to have resulted from such refusal.” (emphasis in original).
In Giant Eagle, the Court stated: “These sub-clauses [including Section 306 (f.1) (8)] do not indicate, on their face, whether the term “compensation” is meant to include payments for medical benefits.” (emphasis in original)
Does “compensation” include both wage loss benefits and medical benefits unless clearly limited solely to wage loss benefits in a particular section of the Act? Does it matter that Section 306 (f.1) (8) refers to “all” rights to compensation?
Does “all” mean all?
Does the rationale implicit in Giant Eagle, Inc. V. WCAB (Givner), No. 14 WAP 2010 in measured dosages, encourage compliance by claimants with his or her obligations, affor,omg as well, the availability of the relief of suspension of medical benefits on a Petition to Suspend/Forfeit based on the refusal of reasonable medical services.