In an unreported opinion, the Pennsylvania Commonwealth Court has ruled that an employer’s medical expert presented on a pending termination petition does not have to testify that the claimant is fully recovered from a previously accepted injury if the full recovery opinion of an employer’s medical expert “encompasses” or “subsumes” the accepted injury. In Borrell v. Faith Christian School Association of Monroe County, Inc., No. 751 C.D. 2021, a claimant sustained a twisting injury to her left knee while at work. The employer issued a medical-only notice of temporary compensation payable that converted, acknowledging that the claimant sustained a “left knee strain.”  The employer obtained a full recovery opinion from an independent medical examination (IME), who testified that the claimant sustained a work-related injury in the nature of a “left meniscal tear” and that the arthroscopic surgery claimant had undergone was related to that work injury. The employer’s medical expert testified that the claimant was fully recovered from a “left meniscal tear” and that the claimant’s ongoing complaints of pain were related to the underlying arthritic condition confirmed by a left knee MRI. The employer’s medical expert did not provide testimony that the claimant was fully recovered from the accepted “left knee strain.”  The workers’ compensation judge circulated a decision granting the employer’s termination petition based on the employer’s medical expert’s testimony, which the WCJ determined was credible. The WCJ also determined that the claimant did not aggravate her underlying arthritis based on the employer’s medical expert’s testimony.

The claimant appealed to the Workers’ Compensation Appeal Board, which affirmed the WCJ’s decision.  On appeal to the Commonwealth Court, the claimant argued, in part, that the WCJ erred in granting the termination petition because the employer’s medical expert failed to address the accepted “left knee strain” in rendering a full recovery opinion during testimony. The Commonwealth Court affirmed the WCJ’s decision, finding the claimant’s argument meritless and that the WCJ’s decision should be overturned because of the employer’s medical expert’s failure to address the accepted “left knee strain” during his full recovery testimony. The Commonwealth Court cited Mino v. WCAB (Crime Prevention Association), 990 A.2d 832 (Pa. Cmwlth. 2010), for the holding that a WCJ does not exceed authority in amending the description of injury contained in a bureau document, e.g., notice of compensation payable, in the context of a termination petition. The Commonwealth Court pointed out that both medical experts in Borrell agreed that the accurate description of the work injury was a “left knee meniscal tear.”  The Commonwealth Court specifically ruled as follows: “[the employer’s medical expert’s] opinion that Claimant had fully recovered from a left knee medial meniscal tear sufficiently encompassed the accepted injury – i.e., a ‘left knee strain’ – because it is much more severe, medically speaking, than the accepted injury.” (emphasis added). Specifically, the Commonwealth Court in Borrell went on to state this applies where the accepted injury is “general,” e.g., a left knee strain and the full recovery opinion pertains to a specific injury to the same part of the body that “subsumes” the accepted, generally described injury. In contrast, citing Elberson v. Workers' Compensation Appeal Board (Elwyn, Inc.), 936 A.2d 1195 (Pa. Cmwlth. 2007), the Commonwealth Court pointed out that a termination petition is rightfully denied where the accepted injury was specific, e.g., “herniated nucleus pulposus at L4-5,” and the full recovery opinion was too vague to include the accepted injury.

While this case is unreported, the rationale of the Commonwealth Court is supported by law, including reported case law, which is contained in the opinion. Moreover, although the Commonwealth Court’s ruling establishes that in certain circumstances, the accepted injury need not always be addressed when rendering a full recovery opinion, where the rubber meets the road is determining whether a more specific injury conclusively subsumes the generally accepted one. It is important to note that in Borrell, both doctors agreed that the correct nature of the injury was a meniscal tear and not a strain, which effectively amended the description of the injury. Moreover, it is important to note that the only additional injury alleged by the claimant was an aggravation of a degenerative condition in the claimant’s knee, which was addressed and denied by the employer’s medical expert. Given the complications that can arise with determining whether a more specific injury “subsumes” a more general injury, it’s still the best course of action to ensure that an employer’s medical expert address not only the accepted injury but also a more specific injury to the same body part.