Hernandez v. WCAB (F&P Holding) 

In this case law update, it was found that even if claimant’s testimony of ongoing pain is found credible, termination is still valid if the Independent Medical Examination (IME) doctor’s view of full recovery from work-related injury (any ongoing pain due to unrelated degenerative conditions) is accepted by the Workers’ Compensation Judge (WCJ). This is a common occurrence, but Common Court had not previously stated it as such in a published decision. 

In August of 2011, Claimant sustained an upper back injury while working for Employer as a maintenance worker. At the time of injury, Claimant had been performing modified duty resulting from an earlier 2006 work-related lumbar spine injury.  

In 2013, Claimant presented Employer with work restrictions pursuant to a Functional Capacity Evaluation (FCE), and Employer laid off Claimant and admitted Claimant was laid off due to Employer’s inability to accommodate his work restrictions but denied that the restrictions were related to the work injury.  

In March 2014, Employer sent Claimant to an IME doctor and filed its Termination Petition the following month, seeking to terminate WC benefits based on Claimant’s alleged full recovery from the thoracic sprain and his ability to return to unrestricted work. Claimant testified that he continues to have pain in his upper back and that treatment with his chiropractor is beneficial.  

The WCJ accepted the Claimant’s testimony as credible but discredited his testimony that the Claimant had not recovered because the physician had testified that the surgery he performed was successful. WCJ accepted the employer’s expert’s testimony to the extent it concurred with the Claimant’s physician’s testimony. Based thereon, the WCJ granted the termination petition. The Claimant appealed to the Board.  

Although Claimant credibly testified that he continued to experience pain, the WCJ found the IME doctor’s testimony evidenced that Claimant had fully recovered from the work-related injury, and any pain Claimant was experiencing resulted from degenerative changes unrelated to the work injury.  


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