Kristopher Ouellette v. Wal-Mart Stores, Inc., No. WC14-5714 (October 21, 2014)
The employee sustained an injury to his left foot during his employment with Wal-Mart. Continued treatment lead to a diagnosis of complex regional pain syndrome. The employee had a spinal cord stimulator implanted after which the employee reported an inability to walk. Upon removal of the spinal cord stimulator, an independent medical examination was performed where the doctor opined that the employee suffered from regional pain syndrome and a spinal cord injury following the implant of the stimulator making the employee effectively a paraplegic. The IME doctor rated the employee as having a 75% permanent partial disability.
The employer and insurer commenced weekly payments of permanent partial disability benefits. The employee’s attorney demanded permanent partial disability payment in a lump sum. The employer and insurer instituted surveillance of the employee in May 2013 which showed the employee driving an automobile.
A second IME was performed and that doctor opined that there was no permanent partial disability related to the work injury. The employer and insurer filed a Petition to Discontinue the benefits. At the hearing, the employee admitted that he drove a car that did not have hand controls or was adapted for paraplegic use. The compensation judge determined that the preponderance of the evidence did not support the employee’s claim.
On appeal, the employee did not challenge the denial of the claim but contends that his PPD benefits may not be discontinued. The Workers’ Compensation Court of Appeals unanimously found that PPD benefits can be discontinued. The Court states that the commencement of payment of benefits is not a waiver of an employer’s right to dispute entitlement to benefits at a later time. In this case, the employer and insurer elected to file a Petition to Discontinue Benefits rather than a Notice of Intent to Discontinue. However, the employer and insurer must continue to pay benefits until the filing of the decision of the compensation judge.