Desinee Dwyer, a partner in the firm’s Philadelphia office, secured a full termination of benefits in a highly contested workers’ compensation matter. The claim involved an injured worker with accepted injuries to her neck and shoulder. The Employer, carrier and Attorney Dwyer all agreed to obtain two IMEs to address the injuries rather than a general orthopedist given the extensive injuries at issue. Specifically, the Claimant underwent a cervical fusion prior to the first IME and then underwent shoulder surgery after the second IME. A total of four medical experts were deposed during the litigation.
The Employer also obtained limited surveillance that showed the Claimant engaging in activities of daily living without difficulty. All of the experts were able to view the surveillance and the Judge found that based on the totality of the experts’ testimony, the surveillance was not consistent with the Claimant’s testimony or her alleged ongoing disability. The Judge ultimately found that the Claimant fully recovered from all of her work-related injuries and questioned whether the shoulder surgery, which took place after the date of full recovery and provided no benefit based on the Claimant’s testimony, should have taken place.
Practice note- It has generally been the consensus in Pennsylvania that post-surgical claimants are “termination proof.” Although cases to the contrary exist, they were few and far between. However, there appears to be a slow moving change taking place. Most recently, in July 2020 the Pennsylvania Commonwealth Court upheld a termination after a knee replacement. Brown v. WCAB (School Dist. Of Phila.), No. 601 C.D. 2019, 2020 WL, filed July 14, 2020 (Unreported, Pa. Commw. 2020). We are hopeful that the progress in this area continues where supported by the facts.