‘Out of Proportion’ Pain Reports Curb Request for Therapy, Insoles

Frank Ferreri

Charleston, WV (WorkersCompensation.com) – Physical therapy and custom insoles weren’t in store for a retail sales representative who claimed to have pain in his foot following a work injury.

Instead, according to the West Virginia Supreme Court of Appeals, the only documentation addressing the claim was an independent medical evaluation showing that no further treatment was needed and that the representative’s reports of pain were “far out of proportion” to his injury. Thus, the Mountain State’s top court rejected the representative’s claims in Stout v. Advantage Solutions, No. 19-0314 (W. Va. 07/09/20).

Injured or Not?

The representative was injured at work when a box fell on his foot. He experienced pain, swelling, bruising, and a limp and was diagnosed with a toe fracture. He was approved for temporary total disability benefits. Following the diagnosis, the timeline on the representative’s claims and process for returning to work ran as follows:

  • Aug. 9, 2017. A doctor indicated that the representative could return to work with restrictions from Aug. 10, 2017, through Aug. 31, 2017. These restrictions included mostly seated duty with occasional walking or standing and resting his foot “as much as possible.”
  • Aug. 11, 2017. The company approved the representative for a leave of absence from Aug. 9, 2017, through Aug. 31, 2017.
  • Sept. 7, 2017. At a follow-up exam, the representative reported that he was still having pain and feeling “unsteady” when going up or down stairs. The doctor opined that it was “not definite” that the representative ever had a fracture. The doctor released the representative to return to work as of Sept. 11, 2017, with restrictions that he shouldn’t run, jump, squat, or climb.
  • Sept. 14, 2017. The representative returned to work, and the claims administrator suspended his TTD benefits.
  • Sept. 28, 2017. The representative saw the doctor again, complaining of pain and reporting that his ankle felt “unsteady.” The doctor indicated that the representative could work with restrictions and referred him to a specialist.
  • Sept. 29, 2017. The representative was terminated for violating the company’s attendance policy.
  • Oct. 2, 2017. The claims administrator continued the representative’s TTD benefits.
  • Nov. 15, 2017. The specialist examined the representative and requested physical therapy for three to four times per week for 12 weeks. The claims administrator denied the request.
  • April 18, 2018. The representative underwent an IME. According to the IME doctor, “The pain and impairment complaints [the representative] voices are far out of proportion to the time which has passed to any identifiable injury, far out of proportion to the time which has passed since his recognized injury, and far out of proportion to any finding.” The IME doctor concluded that the representative could return to work with no restrictions and recommended a 0 percent permanent partial disability resulting from the compensable injury.
  • July 17, 2018. The claims administrator denied the representative’s doctor’s request for physical therapy and custom insoles, leading the representative to protest the denial.

Not Medically Related, Not Reasonably Required

The Office of Judges, which decides workers’ compensation claims in West Virginia, concluded that the representative didn’t establish that he had a need for physical therapy or insoles. Although the representative’s doctor opined that the representative was unable to return to work and that therapy was necessary, the Office of Judges found that this opinion didn’t outweigh the IME doctor’s conclusion.

On appeal, the Board of Review agreed, prompting another appeal to the West Virginia Supreme Court of Appeals. The court agreed with the previous rulings.

“The preponderance of the medical evidence does not establish that the requested physical therapy and custom insoles are necessary,” the court wrote. “[The representative] has failed to carry the burden of proving that his request for physical therapy and custom insoles is medically related and reasonably required to treat his compensable conditions.”

As a result, the court affirmed the board’s finding against the representative’s claims.

News brought to you by WorkersCompensation.com