You are injured on the job and your Employer accepts the work injury by issuing a Notice of Compensation Payable (“NCP”). You are going to physical therapy and seeing an orthopedist to treat the work injury. During that time, you are being paid wage loss benefits and your medical bills are being taken care of by the employer’s Workers’ Compensation insurance company. Then one day, the Employer sends you to a random doctor for an Independent Medical Examination (“IME”). That doctor says, “Vwaa-laa”, you are fully recovered and ready to return to your pre-injury job without any restrictions. You receive in the mail a Termination Petition based on that doctor’s one report. The employer is suddenly trying to stop paying you wage loss benefits or cover your medical bills. You, on the other hand, know that you cannot physically return to work because you are still having ongoing symptoms from the work injury. Do not panic! Seek representation so you can effectively rebut the IME doctor’s opinion that you are able to return to work.
You should know that the IME doctor is retained, and paid by, the employer’s Workers’ Compensation insurance company. More likely than not, they will concoct some medical basis for finding you fully recovered from your work injury. We see this on a daily basis. Once a Termination Petition is filed, the employer bears the burden to prove that your disability has ceased, or that any current disability arises from a cause that is unrelated to your work injury. The burden always stays with the Employer; it will never shift to you as the injured worker. Therefore, you do not have to prove your case, the employer must prove theirs. Not only does the burden stay with the employer, but it is a difficult one to overcome. The employer must demonstrate by “substantial medical evidence that all disability has ceased.” This is a considerable burden because, under the Workers’ Compensation Act, disability is presumed to continue until demonstrated otherwise.
The employer may also file a Termination Petition if they learn you suffered an intervening trauma or other medical condition after the employer accepted the work injury, alleging that your ongoing disability is no longer work-related. In that case, the employer must demonstrate that there is an independent cause for the disability that arose after filing the NCP. This is also a high burden for the employer to meet.
One term that you may hear with the filing of a Termination Petitions is “supersedeas.” Supersedeas means your Employer is trying to stop your wage loss benefits immediately while your case is litigated. Like the Termination Petition, the employer has the burden to prove they are entitled to supersedeas.
To give you a peek into what this litigation looks like, the Employer files a Termination Petition and is seeking supersedeas. The case is assigned to a Workers’ Compensation Judge who will hold a hearing within 21 days of the filing of the Petition to hear evidence on the request for supersedeas. Most times, you as the Claimant will be given more time to respond to supersedeas, typically with a signed affidavit explaining why the IME doctor is wrong and your doctor’s medical reports showing your inability to work. Once you submit your evidence, the Judge will rule on the request for supersedeas within the next 14 days. If supersedeas is denied, you will continue to receive your wage loss benefits as usual. If, on the rare occasion, supersedeas is granted, the employer will no longer pay your wage loss benefits throughout the duration of litigation. From this point forward, the timeline of your case is similar to if your claim was originally denied and you filed a “Claim Petition.”
Moving forward, the employer’s attorney will take your deposition. A deposition is a form of testimony that is usually held away from a courthouse in an office of one of the attorneys involved in the case. The Judge is not involved, but there would be a court reporter to take down what is said during the deposition and produce a written transcript of it, which the Judge will review at a later date. The employer’s attorney will ask you a serious of questions regarding your injury, past medical history, current symptoms, recent medical treatment, past employment history, etc. There is a wide latitude of topics that can be covered during a deposition. Then, the IME doctor will be deposed. At that time, your attorney will have the opportunity to cross examine the doctor, questioning his/her basis for finding you fully recovered and able to return to work. Additionally, you will have the opportunity to produce your treating doctor to testify on your behalf. Your treating doctor is a great witness because he/she has the ability to give detailed and sound insight on your physical condition over the course of your treatment, as opposed to the IME doctor, who only saw you once.
Once all the evidence is complete, the Workers’ Compensation Judge assigned to your case will hold a final hearing in order to finalize the evidentiary record and set deadlines for legal briefs. The Judge may also want to hear brief testimony from you in order to get a sense of your credibility. After the final hearing, the employer’s attorney will have 30 to 60 days to draft and submit their legal brief and your attorney will have 30 additional days to draft and submit their legal brief in opposition to the Termination Petition. Once briefs are submitted, the Judge will review the briefs in conjunction with the evidentiary record and issue a decision, usually in the next 30 days.
Keep in mind that a Workers’ Compensation lawyer will not collect a fee unless they have to go to Court to recover benefits or defend you from those benefits being terminated. So, even if you are being paid benefits, you should have an attorney in your corner so when you receive that Termination Petition in the mail, you know what to do.
If you or a loved one has been injured in a work-related accident, call us at (215) 999-1443 or contact us by using the assistant or by filling out our contact form. The initial workers’ compensation consultation is free-of-charge!
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