Insurance Companies Want Addictions to Cost Injured Workers More Than Their Good Health

Can Workers’ Compensation Benefits Be Lost for Smoking?

By Attorney Michael A. O'Donnell

Insurance companies want addictions to cost injured workers more than their good health.

The Pennsylvania Supreme Court Takes Up a Major Workers’ Compensation Issue

The Pennsylvania Supreme Court is considering argument from an employer and its workers’ compensation defense team that an injured worker forfeits her workers’ compensation wage loss benefits when she fails to quit smoking.

The Wegman’s Case and the Worker’s Injury

Wegman’s Food Markets, Inc. attacks the work injury benefits of a woman who suffered significant on-the-job fracture injuries to her right leg, ultimately resulting in below the knee amputation. Prior to the amputation the worker was advised by her doctor to stop smoking and offered a prescription medication that could help with quitting smoking. She attempted the medication, was unsuccessful, and decided to stop the medication. She continued smoking and her condition worsened. Eventually amputation was required. Wegman’s sent the worker to a doctor who offered testimony that her amputation became necessary, in part, due to her failure to quit smoking. Wegman’s sought forfeiture of the woman’s workers’ compensation benefits.

How the Pennsylvania Courts Responded

The argument was successful a the trial court level before the Workers’ Compensation Judge. The worker appealed and the decision was reversed. The Appeal Board reasoned Wegman’s did not present evidence that there was a high probability of success with the prescribed smoking cessation treatment. On further appeal by the employer the Commonwealth Court affirmed the Board holding that it is the employer’s burden to first present medical evidence that the medical treatment or services at issue are reasonable, meaning, they involve minimal risk to the patient AND have a high probability of improving a worker’s work-related condition. While the trial court focused on the injured worker’s conduct, the Board and Commonwealth Court determined that the issue of a worker’s refusal of treatment really doesn’t matter and is irrelevant until the employer first meets its burden on reasonableness and high probability of success.

Why Benefit Forfeiture Is Viewed So Harshly

Importantly, forfeiture of benefits remains viewed by Pennsylvania’s Courts as one of the harshest consequences to an worker under the Pennsylvania Workers’ Compensation Act. The Commonwealth Court notes that “medical advice” without providing a means to accomplish the medical objective is not enough. Cases have passed through our judicial system on similar arguments involving detoxification from heavy medication doses, losing weight in order to increase success with a surgical procedure, and attending physical therapy. All would agree that this advice is sound. But, human beings must be viewed in the context of their injuries, pre-injury lifestyles, and where substances are at issue, addictions. Simply saying “you need to quit smoking”, which nearly everyone now agrees is a good idea, is not enough to forfeit one’s disability benefits in the face of an otherwise disabling work injury.

What Injured Workers Should Know Moving Forward

What the Supreme Court will do with Wegman’s arguments remains to be seen. But a word to the wise: if a doctor offers medical advice, provides a reasonable means to accomplish the objectives of the recommendation, and the injured worker unreasonably refuses without a good faith attempt or justification, their workers’ compensation benefits ARE at risk. This is true even in the face of addiction to substances like nicotine, alcohol, and prescription medication.