Tuesday, May 27, 2008

New case law on what medical tests can be forced on the employee by the insurance company

Peters Township School District vs. W.C.A.B. (Anthony), is a new Pennsylvania Commonwealth Court case (decided on April 2, 2008) that addresses the issue of what diagnostic tests can the workers' compensation insurance company force an injured employee to undergo.

In this case, the Claimant suffered a 2000 right shoulder injury. In 2006, the employer/insurance company requested that the Claimant submit to a diagnostic test consisting of an EEG which was prescribed by the defense medical examiner (DME) petition. The Claimant refused to attend, so the insurance company filed a Petition for Physical Examination.

The original injury occurred when the Claimant was thrown off a truck and struck his right shoulder and head on the asphalt. As a result of the injury, the Claimant was diagnoses with a clinical seizure disorder after he showed evidence of post traumatic headaches, concussion with loss of consciousness, short term memory loss, post concussive syndrome and an abnormal EEG. This EEG was done on December 4, 2000. The claimant developed his first episode of clinical seizure activity around January of 2002. Of note, the Court indicated that the parties did not dispute the Claimant’s seizure disorder was related to the original work injury.

The whole issue came about when the DME, Doctor Bernstein, requested that the Claimant submit to a diagnostic test to discern whether he was having legitimate seizures verses pseudo seizures because of a high prevalence of pseudo seizures in patients with legitimate seizure disorder. The doctor commented that he could not determine whether Claimant’s seizure disorder was truly under control or whether Claimant was capable of returning to work and/or operating a motor vehicle without a new EEG. The doctor also stated that the test involved essentially no risk and was not unreasonably intrusive to the Claimant.

The claimant presented his own medical reports from the treating physician who opined that the EEG was not necessary and would not be of any diagnostic help. The test would not add anything to the Claimant’s treatment either. Further, the Claimant’s treating physician indicated that it was his opinion that the Claimant did not suffer from pseudo seizures.

The Workers’ Compensation Judge denied the employers Petition to Compel the diagnostic test. The employer appealed to the Workers’ Compensation Appeal Board which affirmed the Judge’s decision. On appeal to the Commonwealth Court, the employer contended that the Judge applied the improper standard.

The Commonwealth Court indicated that Section 314 of the Workers' Compensation Act (77 PS Section 651(a)) provides that “at any time after an injury, the employee, if so requested by his employer, must submit himself at some reasonable time and place for physical examination.” Also, the Court pointed out that “physical examination” includes all reasonable medical procedures and tests necessary to permit a provider to determine the extent of the employee’s disability.

The Commonwealth Court denied employers arguments. It stated that to the extent the diagnostic test was an “attempt to rule out pseudo seizures” and there was no persuasive evidence that suggested Claimant experienced such pseudo seizures, the Judge found the test was not necessary. The issue came down to whether the diagnostic test would yield useful information regarding Claimants seizure disorder, specifically pseudo seizures, against the Claimant’s right to avoid the intrusion of a seventy-two hour hospital confinement necessary to perform the test. The Court believed this was extreme given the risk of obtaining no useful information regarding the claimant's disability status.

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