Doctor Shopping Employer Required to Pay Benefits
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An employer's brazen doctor shopping efforts to terminate workers' compensation benefits backfired in a recent case. A decision of the North Carolina Industrial Commission granted full workers' compensation benefits to an injured employee and found that the employer's efforts to deny benefits constituted stubborn and unfounded litigiousness and that the appeals were brought by the employer without reasonable grounds. The North Carolina Court of Appeals affirmed this decision. As a result, the employer will now be required to pay attorney fees to the injured employee's attorney.
The case, Bird v. Ecofibers, Inc., involved a worker who had broken his ankle and suffered two compound fractures in his leg.
The accident was clearly compensable and the only issue was whether the employee could return to work.
The employer contacted the injured employee and told him to return to work by May 5, 2003. the employee relayed the message that he did not believe he was capable of full duty work and wanted to wait until a functional capacity examination was done to determine his limitations. A week before this functional capacity examination was scheduled, the employer fired the employee and filed an Application to Terminate Benefits based upon the employee's refusal to accept "suitable employment."
After surgery for his broken leg and ankle, the doctors determined that there was a non-union of the fracture (the bones did not grow back together) at the fracture site and that further surgery was recommended.
The employer sought a second opinion from a doctor who concluded that there was a non-union to the fracture and that surgery should be done. Not satisfied with this, the employer sent the injured worker to a third doctor who recommended the use of a bone stimulator to resolve the broken leg but concluded that if the bones did not heal over the next several months, surgery would be needed to correct the non-union.
The injured worker used a bone stimulator, but the fracture still did not heal.
The worker's original doctor left his practice and the employer sent the injured worker to yet another doctor who testified that even though the bones had not healed, the employee was able to return to full duty work. This doctor acknowledged that the bones could only be healed by surgery and a bone graft. However, he stated that such surgery was unnecessary and that, despite the ongoing pain and discomfort, the injured worker had reached maximum medical improvement and could return to work.
Fortunately, the Industrial Commission did not buy this doctor's testimony.
The Industrial Commission found that the employee's refusal to return to work was justified and that the employer's efforts to terminate the worker's benefits was without reasonable grounds.
In upholding the decision of the North Carolina Industrial Commission, the North Carolina Court of Appeals noted that the employee's own testimony as to his pain and his inability to work was competent evidence to support the Industrial Commission's finding that the employee was not able to return to work.
In upholding the Industrial Commission's ruling that the employer's efforts to terminate benefits was stubborn and unfounded, the appellant court noted that the employer sought a third opinion from still another doctor and that all of these doctors confirmed that if a bone stimulator could not help unionize the bone, surgery would be necessary. It also noted that even the doctor who said the employee could return to full work status was aware that the employee's bones had not healed.