Board Panel Persuaded by Lois Attorney’s Argument That, Even in the Absence of a Prior Finding on Attachment, Claimant Is Not Necessarily Entitled to Indemnity Benefits Following an Approved Surgery
Lois Law Firm secured a favorable Board Panel Decision which modified a Workers’ Compensation Law Judge’s decision to effectively rescind nearly eight months of awards previously directed at the temporary total disability rate pending further development of the record. The claimant in this case suffered an exacerbation of a back injury during the course of employment just weeks after being involved in a motor vehicle accident which cause injury to the back. Following the exacerbation, the claimant returned to work without compensable lost time before being terminated for reasons unrelated to her injuries. The claimant underwent a microdiscectomy and laminectomy surgery at L-4 of the lumbar spine on December 22, 2021. Thereafter, the Law Judge cited the occurrence of the December 22, 2021 surgery as the basis to direct awards from that date and continuing at the total rate. This finding was made despite the fact that the claimant previously testified that she had no compensable lost time and made no claim for indemnity payments prior to the procedure.
On appeal, attorney Anthony Iler successfully argued that the mere occurrence of surgery does not entitle the claimant to indemnity benefits as she made no claim for lost time and previously conceded that no compensable lost time exists. It was further argued that the Claimant must demonstrate attachment to the labor market as a prerequisite to the receipt of any future indemnity benefits.
In issuing their Decision, the Board Panel was persuaded and directed the matter return to the calendar for development of the record with instruction that no awards should issue until the claimant has demonstrated reattachment to the labor market if it is confirmed that her termination was unrelated to the accident of record.
