It may have just become a little bit harder to stay home from work.
A deeply divided en banc Pennsylvania Commonwealth Court panel ruled 4-3 that the testimony of two doctors was enough to prove that a workers' compensation claimant was feigning symptoms that were not outwardly visible.
In Folmer v. Workers' Compensation Appeal Board, the majority, led by Judge Mary Hannah Leavitt, upheld the workers' compensation judge's decision to terminate the benefits of a claimant who it determined, based on medical testimony, was exaggerating symptoms such as headache and dizziness.
But the dissenting opinion, penned by Judge Bernard L. McGinley, said the ruling would open the floodgates for "unending litigation" in which "all that will be required is a physician to opine that claimant was 'faking.'"
Judges Doris A. Smith-Ribner and Dan Pellegrini joined in the dissent.
Judges Renee Cohn Jubelirer, Robert Simpson and Bonnie Brigance Leadbetter joined Leavitt in the majority.
In Folmer, according to the majority opinion, plaintiff Neil Folmer was injured at work when he was hit in the face by a box of crowbars while unloading a truck in 1995. He subsequently filed a claim petition for full disability benefits, which the WCJ granted in 1998, saying he was totally disabled by positional vertigo, cervical disc syndrome or cervical myalgia, and tension headaches, Leavitt said.
According to Leavitt, the WCJ based his determination on the opinion of Folmer's treating chiropractor that a 1996 MRI showed a small central disc protrusion or herniation of the spine and that Folmer's vertigo was caused by vascular compression of the eighth cranial nerve.
In 2001, Leavitt said, Folmer's employer, Swift Transportation Inc., filed a termination petition based on its medical experts' opinions that Folmer was fully recovered. Folmer's medical experts disagreed.
According to Leavitt, Folmer's three physicians opined that he continued to suffer from back injuries and vertigo.
The WCJ denied Swift's 2001 termination petition but expressed concern that Folmer had not undergone any recent diagnostic testing, Leavitt said.
Swift filed a second termination petition in 2003, once again alleging Folmer had fully recovered from his 1995 injury, said Leavitt.
According to Leavitt, the employer presented the testimony of Dr. Howard J. Senter, a neurological surgeon who said a series of tests found no symptoms of positional vertigo or cranial nerve damage. The surgeon also said an examination of Folmer's neck revealed no neurological impairment of the nerves or muscles and no herniated disc, but rather degenerative disc disease, which is normal given Folmer's age.
According to Leavitt, Senter also testified that Folmer faked a long list of symptoms throughout the examination, including dizziness and muscle weakness, and that the only headaches he complained of were migraine headaches, which could not be related to the work injury.
Swift also presented the testimony of Dr. John B. Talbott, a neurologist, who ruled out "brain problems, pinched nerves, herniated discs, spinal cord involvement or dizziness," Leavitt said.
Folmer testified that his condition has not improved since the last time Swift filed a petition for termination, but this time the WCJ granted the petition, saying he had witnessed inconsistencies in Folmer's behavior -- including acting as if he were having balance problems only when he was aware the WCJ was watching him -- during the hearing, said Leavitt.
According to Leavitt, the WCJ dismissed Folmer's and his physicians' testimony as not credible and deemed Folmer capable to return to work without restrictions. Folmer appealed and the WCAB affirmed, saying the testimony of Senter and Talbott was sufficient to terminate benefits.
On appeal to the Commonwealth Court, Folmer argued that Swift did not meet the Supreme Court's requirement established in GA & FC Wagman Inc. v. Workers' Compensation Appeal Board
But Leavitt said Folmer's symptoms have no objective support and that an employer would be powerless to meet its burden of proof if the only way to show physical recovery from injuries that can't be seen was for the claimant to acknowledge the improvement.
Leavitt said the case boiled down to the WCJ's determination of which side's experts were most credible.
"Employer established to the satisfaction of the WCJ that Claimant was fully recovered," Leavitt wrote. "In the first termination proceeding Claimant was found to be suffering pain, and in the second proceeding he was found to be free of pain. This constitutes a change in physical condition, as required by Lewis."
According to Leavitt, Folmer also argued that the opinions of Swift's medical experts were incompetent because they did not address all of the injuries he claimed to have sustained in the work accident.
Leavitt said Folmer pointed to , a Commonwealth Court case in which the employer's expert failed to testify that the claimant had fully recovered from the accepted work injury.
But Leavitt said Folmer's case was not like Wagman and that Senter and Talbott "acknowledge each and every one of" Folmer's adjudicated work-related injuries.
McGinley, in a lengthy dissent, said he disagreed with the majority's assertion that the testimony of two physicians is sufficient proof that an employee is not really injured.
"An employer may now meet its burden on a termination petition by simply presenting an expert's opinion that the employee was faking," he said. "I submit this is no different than unsubstantiated expert testimony that a claimant's work injury has resolved and it is insufficient, in and of itself, to establish a change in physical condition."
McGinley said the state Supreme Court in Lewis said expert medical testimony that a work-related injury has healed is insufficient if an employer is unable to show that a claimant's physical condition has improved.
"By the same token, a doctor's testimony that a claimant is faking, without medical proof that his physical condition has changed, is not sufficient to support a termination of benefits," he said. "Here, the WCJ's decision to terminate benefits was based on his acceptance of Dr. Senter's and Dr. Talbot's belief that Claimant was faking his symptoms. However, Employer failed to establish that Claimant's actual physical condition changed."
McGinley also said he felt Folmer's case "fit squarely under Wagman."
Folmer's attorney, Nariman P. Dastur of DeAngelis Dastur & Associates in Pittsburgh, said he took issue with the majority's assertion that his client's symptoms were subjective despite diagnostic test results.
He said the majority's interpretation of Folmer's theory that proof of recovery from an injury that can't be seen is contingent on the claimant's own acknowledgement of recovery "completely mischaracterizes" his client's argument.
Dastur said he felt this ruling could lead to a number of cases in which employers are allowed to cut off benefits to claimants by either having a doctor testify that a claimant is faking or by saying that one doctor interpreted test results differently from another.
Dastur said he will "absolutely" appeal to the state Supreme Court.
Swift's attorney, Dale A. Cable of Fried Kane Walters Zuschlag & Grochmal in Pittsburgh, said he was "pleased that Leavitt went into such meticulous detail to explain through the medical evidence that we were able to demonstrate a changing condition consistent with the Lewis case.
"But, with the vote being 4-3, I'm sure that we are probably not done," he said.
