Shubert v. Macy’s West, Inc. – Failure to Adhere to Care Plan

In a workers’ compensation case, it is important that the worker abide by the recommendations of his or her treating physician. To do otherwise may jeopardize the employee’s ongoing benefits. walking4.jpg

This was seen recently in the case of Shubert v. Macy’s West, Inc., reviewed by the Idaho Supreme Court.

This case was riddled with a number of issues, including the fact that she failed to present an expert witness at a hearing, argued too late on the issue of admitting evidence of an award of Social Security Disability Insurance (though the standard of determining disability is different than for workers’ compensation) and had not followed through on numerous occasions with physicians’ advice for treatment.

According to court records, plaintiff suffered a trip-and-fall at work as a sales associate in a department store. She immediate suffered pain in her hands, elbows, feet, back, knees and hip. She reported the fall to the supervisor and filled out an incident report. When the pain did not improve a month later, supervisor told her to seek treatment at a local care center, which she did. Although x-rays revealed no acute abnormalities, she was diagnosed with lower back strain and left hip pain. She was placed on restriction from pushing, pulling or lifting more than 20 pounds. Doctor prescribed an anti-inflammatory medication, but patient declined to take it, saying she feared bladder infections.

The following month, she saw another doctor, who diagnosed her with left leg sciatica and lower back strain. He referred her to physical therapy and prescribed medication for pain. She had not reached maximum medical improvement. A month later at follow up, patient stopped taking the pain medication. She did attend physical therapy, but it seemed to make her pain worse, so she stopped going.

She was referred to a different doctor, who referred her to another physical therapist and who prescribed a different medication. Doctor stressed the importance of physical therapy. Patient started physical therapy, and doctor recommended at follow-up an epidural. Patient declined.

Two months later, patient complained of worsening pain symptoms, and an MRI indicated there were degenerative changes in her spinal discs.

She was referred to yet another doctor, who recommended physical therapy, prescription pain medicine and steroid injections. He causally connected worker’s condition to her fall.

Two months later, she returned to one of the old doctors and received a steroid injection and a new medication. However, she stopped taking that medication because she said it gave her lip blisters. She also did not follow through with physical therapy exercises at home because of the pain. Doctor again suggested an epidural injection, but patient again refused.

She was placed on permanent restrictions, with orders not to lift more than 35 pounds.

Throughout this time, employer/insurer paid for her medical care, but stopped in November 2007, at which time it was argued plaintiff was medically stable. She sought benefits for treatments from 2007 through 2011.

Commission determined she was stable as of Nov. 2007, and thus not entitled to temporary disability benefits or medical medical benefits beyond that date. However, it did find she was entitled to a 5 percent whole person permanent partial rating and a 10 percent permanent partial disability rating. The decision was later affirmed by the full commission and court.

Worker appealed.

Court ruled against her when it found the commission didn’t err in excluding her SSDI reports. The fact is, SSDI is determined differently than workers’ compensation disability, and those reports contained expert opinions that were considered hearsay without the actual experts testifying. Aside from that, she didn’t dispute the exclusion of the reports until after the appeal.

She further alleged as erroneous the court’s finding she had refused medicine, didn’t participate fully in physical therapy and didn’t seek help for certain conditions after the maximum medical improvement date. The court ruled that while the employer/insurer did emphasize these facts, they weren’t at the heart of the commission’s finding that she was medically stable. Beside that, the court found there was substantial evidence to support employer/insurer’s position on these points.

If you have been injured at work, contact the Lee Law Offices at 800-887-1965.

Additional Resources:
Shubert v. Macy’s West, Inc., Feb. 27, 2015, Idaho Suprem Court

More Blog Entries
Sullwold v. Salvation Army – Work-at-Home Heart Attack Compensable, Feb. 14, 2015, Asheville Workers’ Compensation Lawyer Blog

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