An Employee’s Unreasonable Refusal to Follow Medical Treatment Could Lead to Termination of Benefits

Under the right set of circumstances, workers’ compensation benefits can be either limited or terminated due to the claimant’s noncompliance with medical treatment. Nebraska has two statutes that deal with reducing benefits to a claimant for their failure to cooperate with medical treatment. Section 48-120(2)(c) provides that an employer is not responsible for an aggravation of a work related injury if the injured employee unreasonably refuses or neglects to avail himself or herself of medical or surgical treatment. Section 48-162.01(7) states that benefits can be suspended, reduced or limited if an employee refuses to undertake or fails to cooperate with a physical, medical or vocational rehabilitation program without reasonable cause. The Courts have indicated that §48-162.01(7) most likely deals with the failure to comply with an order that has already been entered by the Court.

A recent trial court decision entered by Judge Coe relied on § 48-120(2)(c) as a basis to find that the employer was not responsible for ongoing medical treatment, including the amputation of the right toe, after the claimant failed to follow recommendations of the treating physician. In the trial court case of Boger v. Magnus Company Doc. 212 No. 1253 (2013), Judge Coe found that the claimant suffered an injury to his right great toe as a result of an ill-fitting sock and shoes that were provided to him by the employer. The initial injury was limited to a blister on the right big toe. The claimant sought medical treatment for the blister and was prescribed an antibiotic medication to take for the next ten days. The evidence reflected that the claimant only took the antibiotic for three days.

The blister did not heal and the claimant next sought medical treatment six months later. The prescribing doctor reprimanded the claimant for failure to take the antibiotic for the prescribed ten days and for not following up sooner for the non-healing blister. The claimant was referred to an orthopedic surgeon who specialized in wound care. The orthopedist prescribed additional medication, took the claimant off work and prescribed crutches to keep the claimant non-weight bearing.

Over the course of the next year, the medical records included eight different references to the fact that the claimant was not using his crutches as prescribed. The claimant continuously arrived for medical appointments without his crutches. The claimant was counseled by the doctor on the importance of using the crutches and remaining non-weight bearing. The medical records also stated that being 100 percent non-weight bearing was necessary to stimulate healing in the right great toe.

The medical evidence also included documentation that the claimant had diabetes that was not under control. In the several years prior to the work accident, the medical records documented that the claimant was not properly taking the medication prescribed for diabetes. Often the claimant would be counseled on the importance of continued diabetes control.

Judge Coe found that the only benefits for which the employer was responsible was the initial office visit for the blister to the right great toe. Judge Coe found that whether benefits could be terminated was a factual issue and there was support from the claimant’s treating physician as well as a defense expert witness that the claimant’s non-compliance with the initial prescription for an antibiotic, the claimant’s failure to keep his diabetes under better control and the failure to use crutches as prescribed hindered healing of the right great toe and resulted in a worsening of the condition for which the employer was not liable. Judge Coe also found that the actions of the claimant amounted to an independent intervening event so as to terminate the employer’s responsibility for any workers’ compensation benefits after the initial medical appointment for the blister.

Whether benefits can be limited or terminated must be analyzed on a case by case basis depending upon the facts involved. The facts must be such to show that the claimant was unreasonable in his or her actions in regard to availing himself or herself of medical treatment. Expert medical testimony is also necessary to show that the actions of the claimant were both contrary to the medical recommendations, and that there was a causal relationship between the claimant’s actions or inactions and a worsening of the condition.

For more information regarding how a claimant’s failure to cooperate with medical treatment may impact the payment of workers’ compensation benefits, please contact Brenda Spilker at bspilker@baylorevnen.com or (402) 475-1075.