Sunday, December 31, 2006

Three Supreme Court Cases

The Supreme Court held in Pitt Ohio Express v. WCAB (Wolff) that a job the Claimant rejects in bad faith remains available in perpetuity (unless the facts of the original job offer show otherwise).

The Claimant's benefits were suspended based on his rejection of a modified duty job with the Employer. Benefits were then reinstated after surgery. The Employer filed a subsequent Petition for Suspension alleging the Claimant recovered to the point where he could have performed the modified duty job. The job was not available. The WCJ suspended, the WCAB reversed, and the Commonwealth Court reversed the WCAB.

The Supreme Court stated the Claimant's earning power was adversely affected through fault of his own. Under these circumstances, the Employer does not have the burden to show job availability.

The Supreme Court addressed a fact specific course of employment case in Brookhaven Baptist Church v. WCAB (Halvorson)

The Court also affirmed per curiam the Commonwealth Court decision in Motor Coils MFG/WABTEC, v. WCAB (Bish). The Court did not disturb the Kachinski analysis applied to a post Act 57 modified job offer with the Employer, including the requirement that the job be within reasonable commuting distance of the Claimant.

Friday, December 29, 2006

A Review of 2006 Cases

A review of 2006 cases from the defense perspective by Daniel Diloreto for the Legal Intelligencer.

Wednesday, November 29, 2006

Commonwealth Court Confirms WCJ Should Take Limited Evidence On Petition to Review Utilization Review That Is Granted For Lack of Records

In R. Gazzola v. WCAB (Ikon Office Solutions) the Employer's Utilization Review was granted when the treating physician did not provide records. The WCJ dismissed the Claimant's Petition to Review the Utilization Review Determination under County of Allegheny v. Workers’ Compensation Appeal Board (Geisler), 875 A.2d 1222 (Pa. Cmwlth. 2005).

The WCJ stated, however, that the better procedure would be to take evidence on whether the treating physician had an excuse for not providing records.

I presumed this authority in my post on Geisler on June 6, 2005.

The Court endorsed the procedure as stated by the WCJ. The WCJ may take evidence on whether there was an excuse for the failure to provide records, and if there is a reasonable excuse, the WCJ may Order that the URO be performed on the treatment at issue.

Tuesday, November 21, 2006

Results Similar With or Without Lumbar Disk Surgery

The New York Times covered a recent study from JAMA finding patients with ruptured lumbar disks recovered with or without surgery. The study also found there was no harm in choosing the non surgical route.

Monday, November 13, 2006

Articles On Passage of Act 147

Articles on the passage of Act 147 include a release by the Pennsylvania Chamber of Business and Industry and general information. The Chamber release states the changes will speed up the system and reduce the cost of litigation. The legislation will do this primarily by requiring scheduling orders and mediation, tools we have been using effectively in this area for some time.

The mediation provisions of the Act will speed up litigation in areas where mediation was not available before, but in workers' compensation the parties typically have to litigate to gain discovery of the facts of a case. There is no formal pre-hearing discovery procedure.

The parties can mediate at any time, but it is effective only when the parties understand what the evidence, and thus the value, will be. The Act does not require the mandatory mediation conference to be scheduled until thirty days prior to the date closing submissions are due.

I recently mediated a case not yet in litigation. The Employer had a favorable IME they did not act upon. The Claimant requested the mediation to see if the Employer would give a reasonable settlement offer before the Claimant was due to become Medicare eligible in a few months.

The case did not settle. The Claimant did not really consider the risk of termination from the IME because the Employer hadn't filed after receiving the report. The carrier did not want to pay a premium amount, because it had a favorable report in hand. We did not know what the Claimant's treating physician would say.

I brought them within $15k of each other, and the case may settle, but I would be concerned it would be an unjust settlement. Unjust to the Employer, under the present facts (remember, I read the IME). Then again, I didn't see anything from the treating physician.

The bottom line, however, is that there will be more mediation because it works. The parties should expect it and get prepared to request the mediation conference they are entitled to at the earliest reasonable opportunity.

Wednesday, November 01, 2006

"Spine" Journal Article About Use of Spinal Fusion

According to an article in the new edition of the journal Spine, rates of lumbar spinal fusion surgery for chronic back problems have increased in recent years, with no improvement in overall results and a significant increase in complications. Abstract

Abstract of a study comparing MRI findings in nurses and secretaries with and without low back pain.

Wednesday, October 18, 2006

Commonwealth Court Holds Relevant Prior Medical Records Must Be Provided To IME Physician

In Central Dauphin School District, et al. v. WCAB (Siler), the Claimant was successful in a Claim Petition to establish injuries including various musculoskeletal conditions including fibromyalgia. The description of injury by the WCJ also included "altered states of consciousness."

When the Employer pursued later IMEs with a neurosurgeon and psychiatrist, the psychiatrist requested pre-injury records of psychological treatment. The WCJ concluded these records were not discoverable, and the Board affirmed, reasoning the records should have been sought in the Claim Petition litigation.

The Commonwealth Court reversed. The Court noted Claimant’s Counsel did not argue that the records are not discoverable, just that they are irrelevant to the adjudicated diagnoses. The Court remanded for the WCJ to compel the discovery of records that are relevant.

Monday, October 16, 2006

Commonwealth Court Holds WCJ Has Jurisdiction Over Attorney Fee Disputes Between Counsel When Prior Counsel's Fee Has Been Approved

In K. Hendricks v. WCAB (Phoenix Pipe & Tube), the Commonwealth Court held Pitt v. Workmen’s Compensation Appeal Board (McEachin), 636 A.2d 235 (Pa. Cmwlth. 1993), petition for allowance of appeal denied, 538 Pa. 661, 648 A.2d 792 (1994) does not stand for the proposition that the WCJ does not have the authority to decide a counsel fee dispute when both attorneys’ fee petitions have been properly submitted to a WCJ.

Attorney fee disputes arise when the Claimant changes attorneys for whatever reason. Because the prior attorney is receiving a continuing 20% counsel fee, there is no room for a fee to be paid to the new attorney. The Pitt case is typically cited by WCJs to refer attorney fee disputes to the local County Bar Association Fee Dispute Committee, and ultimately to the local Court of Common Pleas. This is still the procedure if the prior attorney has not received fee approval, or at least properly placed a fee agreement in the record in an open case.

The Hendricks case states where a 20% fee has been approved for a prior attorney, the fee can be changed after an analysis by the WCJ as to what fee is appropriate for prior and present counsel. The WCJ must balance the right of the Claimant to counsel of the Claimant’s choice against the humanitarian purposes of the Workers’ Compensation Act that are perpetuated by prior counsel receiving a reasonable fee. The Court stated a Claimant cannot be permitted to avoid paying legal fees by simply discharging the Claimant’s attorney.

WCJ’s now will look at fee disputes when the Claimant changes attorneys. A WCJ still may seek consultation from the local Bar Association Fee Dispute Committee, but if there is not a resolution, the WCJ will resolve the dispute.

Thursday, October 12, 2006

Claimant Cannot Petition for Modification or Reinstatement More Than Three Years After Last Date of Payment, Even When a Specific Loss is Discovered

In R. Seekford v. WCAB (R.P.M. Erectors), the Court analyzed whether the Claimant could file a claim for specific loss of his arm almost six years after the last payment of compensation via receipt of a commuted sum. The Claimant had sustained nerve damage to his arm after inadequate padding of his upper extremities during low back surgery seven and one-half years earlier. The Employer admitted an injury to the arm, but asserted the Claimant’s petition was time-barred, as it was not filed within three years of the last date of payment.

The Court held the Claimant’s Claim Petition must be treated as a Petition for Review. An injury that arose as the proximate result of surgery for the accepted injury is an injury that arose out of the accepted injury. Accordingly, the statute of limitations of three years from the last date of payment applies.

The Court then rejected the Claimant’s argument that he only discovered the specific loss when his doctor rendered an opinion of specific loss less than two years prior to the date of filing. The Court would not analogize the specific loss in this case to a specific loss of sight or hearing because the Claimant testified he knew there was a severe problem as soon as he woke up from the original surgery. The Court stated a Claimant who commutes his benefits runs the risk of finding himself beyond the statute of limitations when the Claimant’s injury worsens.

Employer Can File Termination Petition After IRE -- No Penalties for Unreasonable Contest

In J. Schachter v. WCAB (SPS Technologies), The Commonwealth Court held an award of attorney’s fees for unreasonable contest was not appropriate when the Employer filed a termination petition after an IRE and Notice of Change of Worker’s Compensation Disability Status. An IRE assessing a per cent total body impairment does not preclude a later finding of full recovery. The Employer expert’s opinion provided a reasonable basis for contest.

Tuesday, October 03, 2006

Commonwealth Court Holds Parties Can't Look Behind The Last Supplemental Agreement

In Sharon Tube Company v. WCAB (Buzard) the Commonwealth Court restated the principle that the parties cannot look behind the last Supplemental Agreement when requesting relief from the WCJ. The Claimant attempted to return to work, but then went off again. The Employer issued a Supplemental Agreement reinstating temporary total disability benefits. The Supplemental Agreement did not provide for a reservation of the employer’s right to file a modification petition based on the Claimant’s return to work.

The Employer later filed the modification petition. The WCJ denied the Claimant’s motion to dismiss based on the admission of total disability in the Supplemental Agreement. The WCJ found the Employer’s testimony credible and granted modification.

The Board reversed, and the Court affirmed the Board. The basis was that only the last agreement of the parties could be reviewed. Because the Employer did not produce evidence of a medical release and available work after the date of the Supplemental Agreement, no modification could be awarded.

Friday, September 15, 2006

Disfigurement Is To Be Viewed Without Prosthesis -- WCJ Abused Discretion in Making No Award

In P. Agnello v. WCAB (Owens-Illinois), the claimant lost three lower teeth as a result of a work injury. The WCJ observed her on two occasions and stated he could not see a difference in her appearance with her prosthesis out. He denied the Claimant’s petition for disfigurement benefits and the Board affirmed.

The Court noted the Board affirmed on the basis that the Claimant has a prosthesis, which is irrelevant to the disfigurement analysis. The disfigurement is to be viewed without the prosthesis. "Although Gardiner did not specifically hold that dentures should not be considered when determining whether there was a disfigurement, we now do so because they do not resolve the disfigurement, only mask it."

The Court held the absence of the teeth had to make some difference, and the WCJ abused his discretion in denying an award. The Court reversed the Board and remanded the case to the WCJ to make an award.

Tuesday, September 12, 2006

The Hartford List of Top Drugs Prescribed in Workers' Compensation Claims

The Hartford Issued its list of the top 25 drugs prescribed in workers' compensation claims. The report also indicates drug costs went down due to generics for oxycontin and neurontin and the withdrawal of vioxx and bextra. Press Release

Sunday, September 10, 2006

Supreme Court Requires Deposition by Interrogatories Before Discovery of IME Doctor's 1099s

The Supreme Court has addressed the cases in which IME physician Dr. Eagle desires to not respond to the Order of the Common Pleas Court that he produce three years of 1099s from insurance companies and defense attorneys. The Judge found the discovery request was appropriate upon which to found a demonstration of bias. The Superior Court affirmed.

In Cooper v. Schoffstall; Appeal of: Eagle, M.D. the Supreme Court held a deposition by interrogatories is required before a Judge can order that 1099s be produced. The Court felt the IME doctor's answers to the interrogatories will be sufficient upon which to demonstrate bias in most cases where it exists.

Madame Justice Newman authored an excellent concurring opinion reminding the bar that requiring an expert witness to produce personal financial information is generally an abuse of the discovery process.

No one can deny, however, that IME physicians can underestimate the IMEs they perform for defendants, overestimate the IMEs they perform for Claimants, or both. The doctor's testimony can't be challenged without hard evidence, such as 1099s. One has to question the doctor's veracity when the doctor says he or she does one IME a week and all the Judges in our part of the state see the doctor's evaluations twenty times a year or more.

The Supreme Court decision still allows discovery that digs deeper than questioning the doctor without his financial records. The first step, however, will be to direct interrogatories to the doctor.

In workers' compensation, there is no provision in the Rules of Practice and Procedure before WCJs to conduct a deposition by interrogatories. Claimant's counsel will have to direct these questions to the IME physician at deposition. If the answers seem incredible to counsel, they will probably seem incredible to the Judge. In a rare case, counsel may seek additional documentation.

Tuesday, September 05, 2006

New Back Treatments

The Axiom DRX 9000 is a machine designed to provide advanced traction to lumbar discs. Article A Pittsburgh company intends to develop a new NSAID. Press Release

Sunday, August 27, 2006

X-Stop Device for Spinal Stenosis

Dr. Jack Wilberger's comments on the x-stop device to relieve spinal stenosis.

Act 109 Requirements

Act 109 of 2006 becomes effective on September 5, 2006. The Act provides that WCJ’s must direct reimbursement of outstanding support liens to PASCDU when a net award of benefits to the Claimant exceeds $5,000.00. The lien value that will be used is the amount posted at Attorneys may register and obtain the information for use in Act 109 compliance. One other important consideration is that the Claimant information upon which verification of the lien is based must be presented to the WCJ in writing, with verification subject to 18 Pa.C.S.A. Section 4904.

Disputes will arise, particularly due to a collection authority placing an entire month’s obligation as a lien on the first of the month. A printout should be requested on the last day of the month to avoid this issue.

In the event of a dispute, the WCJ has the authority to order that the undisputed amount be paid to PASCDU and the disputed amount escrowed by Claimant’s Counsel. Since there is no workers’ compensation issue beyond the validity of the support arrearage data, the WCJ will ordinarily not exercise the WCJ’s authority under Rossa v. WCAB (City of Philadelphia) to resolve the dispute.

Commonwealth Court Defines Role of Claimant's Designated Health Care Provider Who Attends Independent Medical Examination

In M. Knechtel v. WCAB (Marriott Corporation), the Claimant elected to have a health care provider of her choosing attend an independent psychiatric evaluation. The Claimant further requested of the WCJ that her designated health care provider be permitted to video or audio tape record the examination, question the examiner, comment on the examination process and assist the Claimant during the examination by rephrasing questions and asking additional questions during the examination.

The WCJ denied all of these manners of participation, holding the Claimant’s representative may only observe, take notes, and request brief recesses during the evaluation to confer with the Claimant. The Board and the Court affirmed. The Court reasoned it had ruled in Wolfe v. Workmen’s Compensation Appeal Board (Edgewater Steel Company), 636 A.2d 1293 (Pa. Cmwlth.), appeal denied, 537 Pa. 669, 644 A.2d 1205 (1994) that the Claimant is not able to be represented by her attorney at the examination. Participation of the type the Claimant was requesting was tantamount to an adversarial proceeding.

The Court stated the role of the Claimant’s designated health care provider is to obtain a firsthand view of the exam process as a foundation for later rebutting in testimony the validity of the exam results.

Monday, June 26, 2006

Commonwealth Court Holds Expert Can Posit the Existence of Disease Causing Agent in Section 301(c)(1) Case

In Craftex Mills, Inc. of PA v. WCAB (Markowicz), the Employer tried to apply the evidentiary requirements for proof of occupational disease exposure as stated by the Supreme Court in Gibson v. Workers’ Compensation Appeal Board (Armco Stainless), 580 Pa. 470, 861 A.2d 938 (2004).

In the Gibson case, the Supreme Court, while coincidentally appearing skeptical of the Claimant’s expert medical testimony, held the Claimant did not meet his burden to show asbestosis. The Court stated there must be evidence there was asbestos in the plant, and the Claimant’s lay witness was unsure if the grey dusty material on the pipes leading from the boiler was, indeed, asbestos. See post.

In the Craftex Mills case, the Claimant’s physician testified the Claimant suffered from "hypersensitivity pneumonitis and asthmatic bronchitis as a result of his exposure to thermophilic actinomyces in the air conditioning unit." emphasis in original. The WCJ awarded benefits under Section 301(c)(1) of the Act. The Court stated: "The Judge was impressed by Dr. Mengel’s discussion of the diagnosed condition and its epidemiology." The Board and Court appeared to be similarly impressed.

On appeal, the Employer noted Dr. Mengel admitted not all air conditioning units have thermophilic actinomyces. The Employer pointed out there was no lay evidence that thermophilic actinomyces were present. The Court applied the Gibson test and agreed there was no competent lay testimony to establish that thermophilic actinomyces were present.

However, the Court found Dr. Mengel’s testimony competent on its own. Dr. Mengel explained he concluded the Claimant was exposed to thermophilic actinomyces from the air conditioning system because the Claimant had no history of other exposure such as from "mushroom houses, tree de-barking facilities, and areas in which pigeons roost."

This is reasonable, but indistinguishable from Gibson, in which the Claimant’s doctor surely would have reasoned the Claimant was not exposed to asbestos anywhere other than at work.

The Court in Craftex Mills pointed out post hoc testing could show thermophilic actinomyces were not present, even if they were present at the time of the injury. This would not be the case with asbestos, which would be still there or should be the subject of a record of removal and disposal. The Court also pointed out the Claimant in this case proved his case completely under Section 301(c)(1) rather than relying on the presumption of causation in a case of occupational disease. Based on these factors, the Court chose to defer to the expert opinion rather than placing an onerous burden on the Claimant.

Sunday, March 05, 2006

Article on Supreme Court Arguments in Motor Coils MFG/WABTEC, v. WCAB (Bish) has an article from the Legal Intelligencer about argument before the Supreme Court in Motor Coils MFG/WABTEC, v. WCAB (Bish). The Employer is clearly arguing it can make light duty available to a Claimant who has moved out of state and suspend benefits when she refuses the job. If a labor market survey proves there is light duty work available under these circumstances, benefits can be suspended.

The difference in the Bish case is that the job was created by the Employer. There is no evidence the Claimant could have found the job in the general labor market. If this tactic does not deny equal protection as discussed in Shapiro v Thompson, 394 U.S. 618 (1969), the Supreme Court may validate it.

Monday, February 06, 2006

Commonwealth Court W.C. Filings Down; Court Credits Workers' Compensation Mediation

In an article in the Legal Intelligencer, President Judge James Gardner Colins and G. Ronald Darlington, the Executive Administrator of the Commonwealth Court, identified compromise and release and its progenitor, workers' compensation mediation, as factors in the fourteen per cent (14%) decline of workers' compensation filings in the Commonwealth Court.

In mediations I conducted last week I settled two out of two, and achieved very fair results for parties that were situated to enter into a compromise and release. The expertise of the Workers' Compensation Judges who mediate as well as the Mediating Commissioners of the WCAB and the Mediating Judges of the Commonwealth Court is directly responsible for the reduced filing numbers and the resulting improvement in disposition time.

Judge Colins also acknowledged the requirement of Harkness v. UCBR that Employers be represented by attorneys in unemployment compensation cases was a factor in an 18% drop in appeals from the Unemployment Compensation Board of Review to the Commonwealth Court.

Friday, January 20, 2006

Commonwealth Court Excuses Employer From Performing Labor Market Survey To Get Suspension Upon Claimant's Move Out Of United States

The Commonwealth Court issued its decision in M. Blong v. WCAB (Fluid Containment, et al.), a case I posted on in connection with the Supreme Court's grant of appeal in Motor Coils MFG/WABTEC, v. WCAB (Bish). These are cases where the claimant was released to return to work with restrictions, but the Claimant has moved out of state.

The twist in these cases is the amendment to Section 306(b)(2) that provides when the Claimant does not reside in the Commonwealth, earning power can be shown using a labor market survey in the usual employment area where the injury occurred. In both of these cases the Employer could have filed for modification or suspension based on a labor market survey of jobs in Pennsylvania.

In Bish, the Employer made a job available at the Employer's facility. The Commonwealth Court denied modification or suspension because the job was not local to the Claimant as required by Kachinski. The Supreme Court granted the Employer's petition for appeal.

In Blong, no work was made available and there was no labor market survey. The Claimant had moved to New Zealand. In prior litigation I denied a petition for termination, but found the Claimant was capable of working with restrictions.

I suspended benefits based on Smith v. WCAB (Dunhill Temporary Systems), 725 A.2d 1285 (Pa. Cmwlth. 1999). In Smith the Claimant's benefits were suspended when he joined the Peace Corps and relocated to Africa. I was convinced a labor market survey in the Mt. Union, Pennsylvania area would be "irrelevant and fruitless" in the words of the Commonwealth Court in Smith. The Board and the Court affirmed.

The Commonwealth Court said the critical factor is removal. The Court held the Claimant was as removed from the workforce as he would be if he was incarcerated or retired. In effect, the Claimant "quit" the Mt. Union, Pennsylvania job market, so that the Employer doesn't have to show job availability.

Under Kachinski and Bish the Court could have analyzed whether the move was in good faith. There was no evidence it was not -- Mr. Blong's wife is a native of New Zealand.

In Bish, the Supreme Court may address how the amendment to Section 306(b)(2) and its interaction with Smith affects the Kachinski requirement that available work must be local to a claimant who has moved out of state in good faith. Employers may not be excused from conducting the labor market survey in all of these cases. The Constitutional right to travel as stated in Shapiro v Thompson, 394 U.S. 618 (1969) may even be implicated.

Wednesday, January 11, 2006

Claimant Fails to Show Cause Why His Benefits Should Not Be Suspended

In my post on County of Allegheny (Department of Public Works) v. WCAB (Weis) I indicated the Commonwealth Court's holding allows an employer to file against a claimant a rule to show cause why the claimant's benefits should not be suspended. The employer filed one of these in E. Hepler v. WCAB (Penn Champ/Bissel, Inc.).

The scenario arises when a claimant takes a disability retirement. If a physician has released the claimant to any level of work, the employer can file a rule on the claimant to show cause why the claimant's benefits should not be suspended. This is done by filing a modification/suspension petition alleging the claimant has voluntarily removed himself or herself from the workforce.

This petition was filed in the Hepler case. The WCJ found the claimant was forced into retirement by the work injury and denied suspension, but the Board reversed based on the Weis case. The Commonwealth Court affirmed, finding the Weis case controls. The Commonwealth Court stated it is the claimant's burden in this case to show the claimant has not voluntarily withdrawn from the entire labor market and is open to employment within the claimant's physical capabilities.

Tuesday, January 10, 2006

Monday, January 09, 2006

Commonwealth Court Holds Employer is Responsible for Repair and Replacement of Orthopedic Appliances Before They Fail

In D. Zuback v. WCAB (Paradise Valley Enterprise Lumber Co.) , the Claimant had stair glides installed after his injury, which invloved the loss of an arm and a leg. When the stair glides became worn out, the Employer and Insurnce Carrier denied repair or replacement of the equipment under Bombay v. Workmen’s Compensation Appeal Board (South Erie Heating Co.), 572 A.2d 248 (Pa. Cmwlth. 1990). In that case, reasonable home modifications were made and additional home modifications were denied.

The stair guides were working, although wear and tear was evident in all parts of the mechanical operation. It was perhaps on this basis that the WCJ and Board denied the Claimant's request for repair or replacement. The Court, however, reversed and held the Employer and Insurer are responsible to (in this case) replace the stair glides before they fail as a reasonable home modification.

Friday, January 06, 2006

WCJ May Accept Self-Employment Earnings On Tax Return Over Vocational Expert Testimony

In Acme Markets, Inc. v. WCAB (Brown), the Commonwealth Court reviewed a WCJ's decision wherein the WCJ accepted the Claimant's statement of his self-employment income as reflected on his tax return, after deductions. The Employer argued the Claimant's gross income was a more accurate measure of his earning power. The Claimant had taken deductions for business expenses and a salary for his wife for secretarial and bookkeeping services.

The WCJ rejected the testimony of the Employer's vocational consultant as to average earnings of appraisers (the Claimant's self-employed occupation) secretaries and bookkeepers. The Court highlighted the reasons given by the WCJ for rejecting this testimony and found the WCJ's decision was reasoned. The Court affirmed.

PCRB Requests 8.5% Rate Reduction

The Pennsylvania Compensation Rating Bureau requested an average 8.5% reduction in loss cost level. The reduction is attributed to a decreasing number of claims and a moderation of the rate of increasing severity of the claims that are filed. The Pittsburgh Business Times published an in depth article, which also mentions there are more insurers writing policies in Pennsylvania and more competition over rates.

Sunday, January 01, 2006

Supreme Court Affirms Denial of Supersedeas Reimbursement in Case of Refusal of Reasonable Medical Treatment

In Department of Labor & Industry v. WCAB (Excel Logistics), the employer won a petition for suspension alleging the claimant's refusal to undergo reasonable medical treatment. However, the employer's petition for supersedeas reimbursement was denied because the case did not involve a request for modification, suspension or termination under Section 413 or 430 of the Act.

The Commonwealth Court and Supreme Court held a forfeiture of benefits under Section 306(f.1)(8) is not a change in disability status as provided for in Sections 413 and 430. Accordingly, Section 443 does not allow supersedeas fund reimbursement.

The Supreme Court did not comment on what remedy the employer has against the claimant who was found to have forfeited his benefits. In light of this decision, the logical remedy would be a credit against the reinstated benefits when the claimant elects the treatment at issue.