TERMINATION OF BENEFITS
A. The Opinion of an Independent Medical Evaluator that You Are Fully Recovered from Your Injury
As noted in Section V, the employer can have you examined by a medical provider approximately every six months after your injury. (For a general discussion of the independent medical evaluation (“IME”), see Section V B 1).
If you attend the IME appointment and do not receive anything from the employer/insurance company within the next few weeks, you can assume that the IME doctor agreed with your treating provider. In this case no petitions will be filed and you should not be scheduled for another appointment for another six months. However, if the IME doctor examined you (however briefly), and decided that you are fully recovered, you will probably receive a petition to terminate your benefits. Attached to the petition will be the physician’s “Affidavit of Recovery”, stating that you are recovered from your injury.
B. What to Do if You Receive a Termination Petition
As with the other petitions, it is almost impossible to defend against a termination petition without having legal representation. Indeed, in the case of a termination petition, it is most critical to have counsel because the employer is trying to completely end your rights to medical and wage loss benefits. If you lose the case before the workers’ compensation judge and only then consult a lawyer for the appeal, it is very difficult to obtain a reversal of this decision. You should therefore at least discuss the matter with any attorney immediately after receiving a termination petition.
For a general discussion of the petition procedures before workers’ compensation judges, see Section IV B (relating to claim petitions) and Section VI A 2 (relating to suspension/modification petitions). The actual procedures involving termination petitions are most similar to suspension/modification petitions, in that they both involve the employer’s allegation that you are less disabled than your doctor says you are.
As with the suspension/modification petitions, the termination petition will be assigned to a judge, who will schedule a hearing date. You will attend the hearing with your attorney, who will ask you questions and give the judge copies of your medical records. The judge will make a supersedeas ruling shortly after the first hearing, which will state whether you will continue to receive your benefits while the litigation continues. Within the next few months, your attorney will take the deposition of your treating physician and the employer’s attorney will take the deposition of the IME physician. At a future hearing, these deposition transcripts will be submitted to the judge along with any other medical evidence needed for the case. The judge will have the attorneys write briefs, which the judge will review before making a final decision
1. Receiving a favorable decision – If you receive a decision that the termination petition is denied, your medical and wage loss benefits will continue. Your costs of litigation will be reimbursed by the insurance company. The judge may also approve an ongoing counsel fee as a percentage of your benefits. For a discussion of the employer’s appeal rights, please see Section IV B 5 (relating to favorable decisions).
2. Receiving an unfavorable decision – If the judge grants the termination petition, your benefits related to your work injury will stop as of the date of the decision. As the losing party, you are responsible for payment of your litigation costs. Your attorney will also not receive a fee. If you receive a bad decision, you should immediately discuss it with your attorney; in many cases the judge’s decision can be appealed. For a discussion of your appeal rights, please see Section IV B 5 (relating to unfavorable decisions).
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