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Defendant’s Misuse of the Litigation Process Cost an Amputee Her Workers’ Comp Benefits

Normally, when a defendant employer or its insurer files a Petition to Suspend Compensation Benefits in a workers’ compensation case, it’s because the claimant received a job offer but did not respond, or they returned to work with a new employer. Rarely will an employer or its insurer file such a petition on the basis that a claimant has refused reasonable medical treatment. The rare petition filed following refusal of medical treatment usually involves a claimant who refuses to undergo surgical intervention or other invasive procedure that may have a high likelihood of resolving the claimant’s injury, or at least improving the claimant’s condition to the point they can return to gainful employment. The theory is that interrupting benefits under those circumstances prevents malingering.

Recently, however, a ruling granting Wegmans’s suspension petition, permitted the company to suspend benefits to claimant Bonnie Cole on the basis that she did not stop smoking while she was injured. The decision relied on testimony from Wegmans’s “independent” medical examiner that Ms. Cole’s failure to stop smoking resulted in her right ankle not healing after it was fractured and treated, an infection developed, and, eventually, her right leg needed below the knee amputation.

The ruling raises troubling issues, including misuse of a suspension petition. It suggests that a claimant’s benefits may be suspended under the rubric of what can be understood as contributory negligence, even in Pennsylvania’s “no fault” workers’ compensation scheme. The decision may embolden defendants to fish for injured workers’ unrelated health activities or choices that could serve as bases for denying their compensation benefits.

Ms. Cole loses her right leg—and then her workers’ compensation benefits

On August 7, 2021, while working for Wegmans at one of its warehouses, Ms. Cole was injured when her right foot became caught under the pallet jack she was using. She was diagnosed with a fracture in her right ankle. Unfortunately for Ms. Cole, the fracture did not heal properly after it was operated on and became infected. Ms. Cole was given two surgical options. The first was additional surgery to the ankle that could have resulted in chronic pain with no guarantee of success. The second was an amputation of her right leg below the knee. Ms. Cole opted for the amputation, which took place in October 2022.

Ms. Cole is addicted to smoking and has smoked off and on for 40 years. During her deposition, she testified that Wegmans did not offer her a smoking cessation program, that she cut back on smoking at times after her injury, and that her physicians did not connect smoking to the necessity for amputation. She also testified that because of the severe pain she felt, she chose amputation over a surgery that would have addressed the infection but would have not fully addressed the pain.

In support of its suspension petition, Wegmans presented the testimony of a defense medical examiner, Dr. Lucian Bednarz, who testified that Ms. Cole had been told many times to stop smoking. He testified to his belief that Ms. Cole’s failure to cease smoking caused her ankle to become infected and therefore, ultimately, the need for an amputation.

Ms. Cole’s treating doctor however testified that her smoking could be excluded as a factor in her fracture’s failure to heal. Against the backdrop of this testimony, the decision relied on Dr. Bednarz’s testimony in finding that by continuing to smoke, Ms. Cole failed to follow doctors’ recommended treatments for her injury. At bottom, the decision found Ms. Cole responsible for her own injuries and, on this basis, suspended benefits.

The decision is both legally flawed and has troubling policy ramifications

This decision for several reasons invites defendants to abuse the suspension petition motion process by drawing a line from injured workers’ irrelevant health decisions and activities to their workplace injuries. The decision has been appealed to the Workers’ Compensation Appeal Board.

First, Wegmans and its outside counsel misused the litigation process by filing a suspension petition targeting Ms. Cole’s smoking. At no point did Ms. Cole refuse any treatment that was directly connected to her injury. She wasn’t a no-show at her examinations, she didn’t refuse to take pain medications, and she certainly didn’t avoid a surgery, her amputation, that might have caused other people to beg for equally effective alternatives.

Importantly, Wegmans did not offer a smoking cessation program or any similar assistance that was declined by Ms. Cole. Wegmans and its counsel focused their attention on Ms. Cole’s alleged “fault” relating to treatment of co-morbidities by citing generic language in her physician’s records regarding standard recommendations to stop smoking. But this is the kind of boilerplate language that any smoking patient’s medical chart would have in it.

Second, even if Ms. Cole’s failure to stop smoking was arguably a contributing factor in her amputation, Wegmans and its counsel failed to meet the standard that must be applied for granting a suspension petition. Wegmans did not present any evidence to prove that even without the amputation, Ms. Cole would have sufficiently recovered from her injury to no longer be disabled from performing her warehouse job at Wegmans. That is to say, even if her smoking might have exacerbated her injuries, it was not the cause of her disability—her workplace injury was. So even as a “causation” opinion went, Dr. Bednarz’s testimony should not have been sufficient to overcome the threshold for suspension of statutory benefits

Third, this decision opens the door for defendants to draw specious connections between injured workers’ health activities or decisions and their workplace injuries. Let’s say that, for example, the evidence in an injured worker’s case shows that two years before they were injured at work, they were told by a doctor that they needed to eat better, go to the gym, and drink more water. They did not follow the doctor’s orders.

If an “independent” medical examiner opines that had the worker been ten pounds lighter, more fit, and better hydrated, the treatment for their injury would have been more effective, will failing to follow the doctor’s orders about their health be deemed to have been a refusal of medical treatment for the workplace injury? Taken to its logical conclusion, this would mean any health recommendation from a doctor is fair game if a defendant can draw a line—no matter how tenuous—between that recommendation and the failure for a workplace injury to heal properly.

They say that “hard cases make bad law,” but this was not a hard case. And, this decision is not technically “bad law” as it is non-binding. But that it exists at all should concern the workers’ compensation claimants’ bar.

We’re hopeful given the strength of the arguments on appeal that this decision will be reversed. Even if it is, the claimants’ bar must now be on the lookout for similar opportunities for defendants to misuse suspension petitions to deprive injured workers of their compensation benefits based on flimsy connections between their workplace injuries and their unrelated decisions regarding their health.

Keld R. Wenge is a partner at Pond Lehocky Giordano LLP, the largest workers’ compensation and Social Security disability law firm in Pennsylvania and one of the largest in the United States. He can be reached at kwenge@pondlehocky.com.

This article was first published in Volume 2023–2024, Issue 2, of the Philadelphia Trial Lawyers Association’s Verdict publication.

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