Amputee's Workers Comp Benefits Pulled for Failure to Quit Smoking

An appeal underway in a case involving a woman who had her workers’ compensation benefits pulled for failing to stop smoking while undergoing medical treatments is likely to address novel questions about the application of longstanding principles to new facts, attorneys say.

And, according to the woman’s lawyer, the case could establish precent allowing employers to use a broad range of claimants’ underlying health conditions to suspend benefits.

“This could theoretically open the door for any number of other health conditions,” Pond Lehocky Giordano’s Keld Wenge said, giving a claimant’s diabetes management as a potential avenue companies could use to question a claimant’s benefits if the ruling stands. “It’s really kind of tenuous and removed from the accepted work injury to begin with, so then, where does it stop?”

On April 11, Harrisburg-based Workers’ Compensation Judge Robert Goduto ruled that grocery chain Wegmans could suspend its compensation benefits to Bonnie Cole, a worker who had sustained a severe ankle fracture that failed to fully heal and eventually led to an amputation.

According to Goduto, while Cole was undergoing initial treatments following the fracture, a doctor advised her she should stop smoking while the fracture healed. Cole testified she cut down on her smoking, which had been between one and a half to two packs a day, and then was able to quit for three months, but she eventually resumed smoking again. She also testified she wasn’t offered smoking cessation treatments.

During this time, her broken ankle failed to heal, and later developed an infection, Goduto said.

Cole testified she was suffering from severe pain, and was given the option of either another surgery—which could address the infection, but would likely not fully address the pain—or undergoing an amputation. Cole chose amputation, Goduto said.

As part of the workers’ compensation claim, Wegmans’ independent medical examiner Dr. Lucian Bednarz reviewed Cole and her case. Although he agreed with her injuries and that her treatment was reasonable, he noted that Cole had been advised multiple times to stop smoking, and opined that her failure to do so resulted in the bone not fusing, the infection developing and the need for an amputation.

According to Goduto, Bednarz, who specializes in rehabilitation and ran an amputation clinic,  cited the scientific literature and said that, in dealing with fractures, smokers are twice as likely to develop infections and 3.7 times as likely to develop a bone fractures as nonsmokers.

“[T]aking in comorbid factors with the tobacco abuse being number one without that smoking cessation as part of [claimant’s] treatment program she put herself at risk for poor healing, infection, and other complications that we would otherwise not see in individuals that don’t have those risk factors,” Bednarz testified, according to Goduto.

Cole’s physician offered opposing testimony, saying he did not think Cole’s smoking was a causative factor for the fracture’s failure to heal.

In his ruling, Goduto noted that Cole’s doctor did not have sufficient expertise to wade into why the bone failed to heal, and he further didn’t find Cole’s testimony that she quit and that she wasn’t given smoking secession treatments credible, citing testimony from her primary care doctor showing she had been prescribed medication to quit smoking.

Ultimately, Goduto granted Wegmans’ request to suspend Cole’s benefits given her failure to follow recommended treatments.

The ruling is now on appeal to the Workers’ Compensation Appeal Board.

Wegmans’ counsel, R. Burke McLemore of Thomas, Thomas & Hafer, said there is longstanding precedent allowing employers to stop benefits for claimants who fail to perform necessary treatments, and Goduto’s ruling, he said, applied those principles to a unique set of facts.

“The point of law is not unique,” McLemore said, noting that benefits have been suspended for people who refuse to undergo surgeries, or to take medications. “It’s very specific and fact-driven if you have other cases where a person refused reasonable medical care.”

McLemore said he did not expect plaintiffs to argue the reasonableness of the medical recommendations on appeal. Instead, what made the case unique, he said, was the amount of evidence there was showing that a compromised circulatory system resulted in an amputation.

“There are all sorts of applications, you just have to be able to prove it medically,” he said.

Wenge said the appeal argues that the recommendation to stop smoking was an ancillary treatment, and Cole’s failure to do so does not qualify as a refusal. Further, he said there’s no testimony to show that Cole would have been able to return to work even if she did not need a full amputation.

But more broadly, Wenge said he will continue to argue that the ruling has problematic policy implications.

“It opens the door to really include anything from someone’s unrelated medical history,” Wenge said.