If you injure yourself at work, the workers’ compensation insurance company for your employer is required to pay for medical treatment that is reasonable, necessary, and related to your injury. But can the insurance company stop your benefits if you are not willing to undergo a certain type of treatment? It depends on several factors.
We’ll use a hypothetical to explain the law to you. Let’s say that you are a laborer and injure your neck while moving boxes off a pallet in the warehouse where you work. Your injury prevents you from working, and you start to receive workers’ compensation benefits each week. You undergo an MRI to your neck that shows a herniated disc. Over the next several months, you take pain medication, complete a course of physical therapy, and try a round of injections, but after all that treatment, you still experience constant pain and have difficulty moving your neck from side to side. Your doctor has kept you out of work, and you continue to get paid your workers’ comp. benefits.
A year after your injury, the insurance company sends you for an independent medical examination with an orthopedic surgeon. The surgeon thinks the only treatment that will fix the herniated disc so that you can return to your job is surgery. You think it over and say no – you would rather exhaust all types of conservative treatment before proceeding with surgery. What happens now?
If you refuse to undergo the surgery, the insurance company will likely file what’s called a Forfeiture Petition, asking a Workers’ Compensation Judge to suspend your weekly benefits. Under Pennsylvania workers’ compensation law, in order for the insurance company to win before the Judge, it will have to show it is highly probable that the surgery would correct your injury and enhance your prospects of returning to gainful employment — your laborer position or some other type of work. The lawyer for the insurance company will take the deposition of the surgeon who will render opinions on the chances that the surgery will be successful. Pennsylvania courts have found that an 85-90% chance of success is sufficient for the Judge to suspend your benefits. In addition to testifying about the proposed surgery’s high probability of success, the surgeon must also testify that the surgery poses a minimal risk to you.
So how do you defend against the Forfeiture Petition? How do you beat the petition so that your benefits are not cut off? You will definitely need a top-notch, experienced PA workers’ compensation lawyer on your side – a lawyer at Pearson Koutcher Law – to fight this petition hard.
There are various ways that you and your PA workers’ compensation lawyer can oppose this petition. Your lawyer may present the testimony of a surgeon on your behalf who holds the opinion that the proposed surgery does not have a high probability of success and/or the surgery subjects you to more than a minimal risk. If the Judge finds the testimony of your surgeon more credible than the testimony of the insurance company’s surgeon, the Judge will rule that the employer has not met its burden of proof and deny its Forfeiture Petition. Your benefits would continue.
Another tack your lawyer may take is to argue that even though the surgery in question may have a high likelihood of success and presents a minimal risk, you have a valid reason for refusing the surgery. Our courts have found that an injured worker’s reasons for declining a type of treatment should be considered by the Judge in determining whether the treatment is reasonable. Suppose you testify before the Judge that you are deadest against the idea of surgery because you are fearful of going under the knife and don’t want to endure the long recovery period which would follow. While these reasons are completely sensible – the thought of undergoing a surgery scares a lot of people – that probably will not be enough to defeat the insurance company’s petition unless there are some unusual circumstances.
An example is a case decided by the Commonwealth Court of Pennsylvania, which reviews appeals of decisions rendered by Workers’ Compensation Judges. A woman sustained an injury and later had a baby. She was breast-feeding her child, and her doctor testified that while injections or surgery normally would be good treatment options for her, because she is breast-feeding, these treatment modalities would not be advisable as they would be too risky. The Commonwealth Court ruled the breast-feeding of her child was a legitimate reason for the woman refusing injections and surgery, and as a result, her benefits continued. If you object to surgery based on your religious beliefs, that could constitute a valid reason for declining the surgery. But just stating that you don’t want to get the surgery because of the magnitude of the procedure and post-surgery treatment probably will not be enough to preserve your benefits.
If your doctor has recommended an alternative treatment – let’s say radiofrequency ablation, which involves a burning of the nerve – and testifies that this treatment is as likely as surgery to restore your ability to work, and has minimal risks, it is possible that the Judge will find you have a reasonable basis to decline undergoing the proposed neck surgery.
Defeating a Forfeiture Petition – or any petition filed by your employer’s workers’ compensation insurance company – requires you to have a highly skilled PA workers’ compensation lawyer representing you. At Pearson Koutcher Law, workers’ comp. is all we do. We will carefully evaluate your case and determine the best strategy to oppose the insurance company’s petition. If a petition has been filed against you, or if you recently injured yourself at work and have questions about your claim and the process, we urge you to contact Pearson Koutcher Law for a free, comprehensive evaluation.