George v. Cub Foods

George v. Cub Foods, WCCA No. WC17-6039 (September 7, 2017).

The employee worked as a cashier for Cub Foods on April 3, 2015 when she fell on some stairs at work and injured her right upper extremity. The employee returned to work with the date of injury employer but continued having pain in her right upper extremity and was eventually taken off of work. She underwent treatment including surgery, injections, and hand therapy.

The employee’s surgeon, Dr. Ward, recommended that the employee undergo a work hardening program and a functional capacity evaluation. The employer and insurer scheduled an independent medical examination with Dr. William Call. During that examination, the employee refused to allow Dr. Call to touch her right hand, wrist or arm, and declined to submit to an orthopedic examination. Thus, Dr. Call was not able to opine on MMI, work restrictions, future medical treatment, need for pain medication, or need for physical therapy. The employer and insurer filed NOID to discontinue benefits based on the employee’s refusal to submit to an examination with Dr. Call. The compensation judge granted the discontinuance at an administrative conference and the employee subsequently objected to the discontinuance and requested a formal hearing to address the need for a rehabilitation consultation.

The employer and insurer then obtained a second independent medical examination with Dr. Husband and reinstated temporary total disability benefits since the employee cooperated with that examination. Dr. Husband placed the employee at MMI as of May 3, 2016 and saw no need for work restrictions.

At hearing, the compensation judge upheld the discontinuance of TTD based on the employee unreasonably refusing to submit to a physical examination with Dr. Call.  He found that the employee did reach MMI on May 3, 2016 as opined by Dr. Husband, allowed the FCE and work-hardening program, and also awarded a rehabilitation consultation.

The employee appealed the finding of MMI and that she failed to comply with a reasonable request for an IME. The employer and insurer cross-appealed the order for the FCE, work hardening, and rehabilitation consult on the grounds that the employee had fully recovered from the injury.

On appeal, the WCCA noted that the employee had argued that she was not comfortable with Dr. Call because he stated that “he would report that she was not cooperating with him when she did not know the answers to all of his questions during the history-taking portion of the examination” and thus the IME request was not reasonable. The WCCA upheld the compensation judge’s finding that the employee’s reasoning did not excuse her duty to submit to an examination and that the employer and insurer were able to suspend benefits as long as the employee was refusing to submit to a reasonable examination.

The WCCA also upheld the finding of MMI and the orders for the FCE, work hardening, and a rehabilitation consultation. They explicitly stated that an order for an FCE and work hardening are not inconsistent with a finding of MMI. The WCCA noted that reasonable medical treatment may be required after a finding of MMI. Finally, the compensation judge found that an FCE and work hardening could facilitate the employee’s efforts to find work and the WCCA upheld that finding as well.