The Virginia Workers Compensation Act allows employers to stop your workers compensation benefits under certain circumstances. One such circumstance is when a treating medical provider releases you to full duty work. The Virginia Workers Compensation Commission may find that the medical provider’s opinion establishes probable cause to suspend your benefits and refer the Employer’s Application for Hearing to the docket.


You don’t have to accept a finding that probable cause exists to refer the Employer’s Application for Hearing to the docket. Instead, you can fight the referral if you have a sufficient basis to do so. Virginia work injury lawyer Corey Pollard did just that on behalf of an injured employee in Harvey v. Queeney Enterprises, Inc., JCN VA00001224965 (August 22, 2017).


In Harvey the claimant injured both wrists in an accident arising out of and in the course of his employment. The employer and its insurance carrier accepted the workers compensation claim. And the Virginia Workers Compensation Commission entered an order providing an open award of temporary total disability benefits.


On April 19, 2017 the defendants filed an Employer’s Application for Hearing. The defendants alleged that the claimant was released to return to pre-injury work based on Dr. Patel’s report of the same date. Specifically, Dr. Patel had stated, “I do not see any objective findings to explain his subjective symptoms no evidence of CRPS was seen objectively. From a pain [management] standpoint, the etiology of his pain is unclear. He should be able to return to work without restrictions from a pain management perspective. No limitations.”


The claimant objected to the Employer’s Application for Hearing. He asserted that (1) his orthopedic surgeon, Dr. Antony Denard, had restricted him to light duty work and deferred to the neurologist’s opinion on work status after November 14, 2016 and (2) his neurologist, Dr. Bruce Hoffen, continued to restrict him to light duty. The claimant further asserted that Dr. Patel’s opinion was limited to a pain management perspective.


In May 2017 the Senior Claims Examiner found the defendants’ “evidence [was] acceptable preliminarily and the Employer’s Application will be referred to the hearing docket.”


The claimant requested review of the Seniors Claims Examiner’s decision by the full Commission.


On appeal the full Commission stated that “[a]n application for hearing must demonstrate the requisite probable cause to justify suspending benefits and docketing the application for a hearing on its merits.” There is probable cause “if the facts and circumstances are sufficient to justify a prudent and reasonable person in the belief that the allegations, if true, would prevail.”


The full Commission reviewed the evidence and found that “probable cause does not exist to believe the defendants will prevail or that entitlement to compensation is at least doubtful. Dr. Patel’s opinion was restricted to his treatment from a pain management standpoint. The claimant’s orthopedist opined the claimant’s right wrist pain was consistent with CRPS and he restricted the claimant to light duty work and instructed him to follow-up with the neurologist.”


On that basis the full Commission denied the defendants’ application and reversed the referral of the Employer’s Application for Hearing to the docket. The claimant’s benefits were reinstated without the need for a workers compensation hearing.


Bottom Line: Those of you who suffer severe injuries at work may require medical treatment from multiple specialists. These specialists may have different opinions on your ability to work. If one treating physician releases you to full duty work, but another treating physician does not, then you have a strong argument as to why an Employer’s Application for Hearing should be denied. In our experience the Commission will give greater weight to the opinions of a neurologist or orthopedic doctor regarding your work status than the opinions of a pain management doctor. This is especially true if the pain management doctor states that his or her opinion is limited to a pain management perspective.


Need help with your claim? Trying to negotiate a workers compensation settlement? Contact Corey Pollard today for a free consultation.





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