Frederick v. Divine Home Care, Inc. and United Wis. Ins. Co./United Heartland, No. WC13-5654 (July 1, 2014)
The employee allegedly sustained a bilateral wrist injury while working as a home health care attendant. She received temporary total disability benefits for several months following the alleged injury.
Despite substantial medical treatment, her subjective complaints did not correlate with objective findings and there were multiple medical records indicating the employee gave “inconsistent efforts” on grip strength testing. Surveillance also showed the employee performing activities she claimed she could not do based on her condition, such as driving and picking up her dog.
An independent medical examination revealed that at most the employee sustained a bilateral wrist sprain, which would have resolved within four weeks. The employer and insurer filed a notice of intention to discontinue benefits as well as terminate the employee’s rehabilitation plan. They also asserted the employee had made false representations to her treating doctors about her condition and abilities, and had accepted workers’ compensation benefits through fraud.
A few days before the hearing, the employee began treating with Dr. Elghor at the Center for Pain Management. He diagnosed moderate complex regional pain syndrome in both extremities. Despite this diagnosis, the compensation judge allowed discontinuance of her wage loss benefits and termination of the rehabilitation plan, but held the fraud claim had not been established. Additionally, the judge found the employee did not sustain any injuries arising out of and in the course and scope of her employment on the date of injury.
On appeal, the employee argued the judge had improperly expanded the issues at the hearing by finding no work injury occurred. The employer and insurer had not denied primary liability, so the issue of whether or not a work injury had occurred was not an issue. If the employer and insurer had challenged primary liability, the burden of proof would have been on the employee. Instead, the matter came on for hearing as an objection to discontinuance and a rehabilitation request, and the burden of proof was on the employer and insurer to establish grounds to discontinue temporary and rehabilitation benefits.
The WCCA affirmed the compensation judge’s findings and order relative to the discontinuance of wage loss benefits and termination of the rehabilitation plan, but vacated the findings and order to the extent that they went beyond the scope of the issues presented at the hearing. Additionally, the WCCA determined the fraud claim was not established because the employer and insurer did not satisfy the elements of the claim and also did not comply with the procedural requirements of bringing a fraud claim.