A few years ago, I represented a man in need of a hip replacement. He was in his early sixties and, quite frankly, was reluctant to have the procedure performed because of a fear that things could go wrong. He could barely ambulate; he was clearly in pain; but he most definitely did not want to have the replacement performed.
The Defendant in this case had sent the man to an Independent Medical Exam, and that doctor concurred with the client’s treating physician: a hip replacement was necessary. At the time, the man did not have an attorney, and he just refused to go to doctor appointment, and certainly refused to make arrangements to have the hip replacement procedure. The Defendant filed a Suspension Petition alleging that the Claimant was refusing medical treatment. The filing of that petition is what led the man to retaining me as his attorney.
The Pennsylvania Workers Compensation Act provides that if an employee “refuses reasonable medical services, the employee forfeits all rights to compensation for any injury or any increase in the employee’s incapacity shown to have resulted from that refusal.”
The employer has the burden of proof to establish that the proposed treatment is reasonable. The court will consider the following factors: 1) whether it is highly probable that the medical treatment will cure the problem, and 2) whether it is highly probable that the medical treatment will enhance the employee’s prospects for gainful and fulfilling employment.
Given the advancements in the medical field, (many procedures such as joint replacement have such a high rate of success), injured workers must be cautioned that refusing to consider treatment options can result in a suspension of benefits. Procedures that were at one time “cutting edge” or not “FDA approved” are now performed with great regularity and with high success rates. Workers Compensation Attorneys should be cautious in ever recommending that an injured worker refuse medical treatment.
Some examples of benefits being forfeited include a refusal to have surgery for a herniated disc; a refusal to have reconstructive surgery after an injured worker suffered ligament damage to his ankle; a refusal to have a wrist fusion; and a refusal to undergo a lumbar laminectomy.
In the case with my client, at our first hearing the judge very frankly advised my client that the success rate of hip replacement was quite high; that he had a friend who had recently undergone a successful one; and essentially that he should consider the procedure or face forfeiting his benefits. Following several long discussions with me, and his surgeon, the client made the informed decision that the procedure was in his best medical and legal interests. Ultimately, he had a successful replacement performed, his benefits were never suspended, and in the end we were able to resolve his claim by Compromise and Release Agreement.