Unlike many other states, the Pennsylvania Workers’ Compensation Act does not allow for a unilateral suspension or termination of benefits based upon a claimant’s failure to obtain recommended medical treatment. Instead, if an employer has very specific language regarding proposed medical treatment, the employer can pursue a Suspension/Forfeiture Petition.
Specifically, Section 306(f.1)(8) provides that, if a claimant refuses reasonable medical services (including, but not limited to, surgical procedures, medications, or medical supplies), the claimant "forfeits" all rights to compensation. This allows an employer to file a Suspension/Forfeiture Petition based upon the claimant’s refusal of reasonable medical treatment.
In the context of a Suspension/Forfeiture Petition, the burden is on the employer to establish that the proposed medical treatment that the claimant is refusing to undergo is reasonable. Evidence must be presented that details the degree of success of the proposed treatment, along with the potential risks. Additionally, in reviewing the proposed medical treatment to assess the reasonableness of same, the court will consider:
(1) whether it is highly probable that the medical treatment will cure the problem,
(2) whether it is highly probable that the medical treatment will enhance the claimant’s prospects for gainful and fulfilling employment.
While Suspension/Forfeiture Petitions have largely been difficult to prove pre-COVID, can a Suspension/Forfeiture Petition be used to suspend benefits if the delay in medical treatment is based upon COVID-19 restrictions and closures? Unfortunately, no. If the claimant’s failure to obtain the proposed/recommended medical treatment is for reasons that are beyond the claimant’s control, a Suspension/Forfeiture Petition cannot be granted. Therefore, if COVID-19 is the reason for the delay in medical treatment, a Suspension/Forfeiture Petition should not be pursued.
So, what can an employer do to help control the value of the case while waiting for a claimant to undergo medical treatment aimed at shortening disability?
First, it is important to distinguish between the types of medical treatment that are reasonably delayed due to COVID-19 versus the medical treatment that is readily available even with COVID-19 restrictions in place. For example, even with COVID-19 restrictions in place, claimants can obtain prescription medications, durable medical equipment, and even engage in physical therapy whereas more invasive procedures, such as surgical procedures, are being postponed. Therefore, if a claimant is refusing medical treatment that is readily available, even with COVID-19 restrictions in place, the employer may want to consider discussing the matter with an attorney to determine if there is sufficient evidence to pursue a Suspension/Forfeiture Petition.
Additionally, an independent medical evaluation (IME) should be considered to confirm that the proposed medical treatment is, in fact, reasonable and necessary given the claimant’s condition. If the IME finds that the proposed medical treatment is neither reasonable nor necessary, a prospective Utilization Review should be filed.
Employers should also consider discussing resolution with the claimant, rather than assuming that a claimant does not want to settle until they receive the proposed medical treatment. Many claimants are more than happy to settle a case even with ongoing medical treatment being proposed.
While COVID-19 may have an impact on the value of some workers’ compensation cases, the increase in value should be limited to more severe cases where surgery is absolutely necessary. In routine cases where prescription medications and physical therapy are sufficient in rehabilitating a claimant to their pre-injury condition, COVID-19 delays should not result in an increased value of the case.