I have written many times about the fact that success for employers in workers' compensation most often comes down to past medical history and causation analysis. This is particularly true in a state like New Jersey where there is virtually no formal discovery allowed. Employers need to know in a back claim, for example, whether the injured worker has an extensive prior history of chiropractic treatment or car accidents. But what about the importance of reviewing treating notes of various doctors and therapists after the work accident? This is an underrated concept and deserves some consideration.
This practitioner had a case recently where the employee injured her knee at work and was diagnosed with a partial tear requiring no significant treatment. Conservative care ensued and the recovery seemed excellent. Then six months went by and the injured worker suddenly returned back to the authorized doctor stating that her knee had become much more painful. The treating doctor noted the significant worsening in the knee and mentioned that petitioner had seen her family doctor recently. The IME doctors put fairly high estimates on the knee, leading to a potential award of 20% of the leg with the potential for knee surgery on a reopener.
Our office sent a subpoena for the family doctor's records with particular interest on the visit in the summer noted in the treating doctor's report. That entry in the family doctor records stated, “Patient was doing some challenging rock climbing over the weekend and jumped from a height landing on her knee, causing intense pain and swelling.” That was the only reference to this new incident, and obviously this constituted a significant event. It accounted for the sudden visit to the treating doctor after six months of no treatment. This information changed the course of the case. It allowed respondent to avoid a significant order approving settlement with reopener rights. Instead the case settled for a nominal Section 20. But for the subsequent family doctor records, this employer would have paid ten times as much money, bought a likely reopener, and eventually a likely knee surgery with a higher award.
Defense counsel, adjusters and employers must scrutinize subsequent treatment records, PT notes, and tools like ISO reports. When an employee like the claimant above reinjures her knee, that new incident amounts to the same thing as a work accident – except it is a non-work event that breaks the chain of causation. If someone falls in a grocery store while shopping and reinjured his shoulder before the case is settled, that subsequent accident may be perhaps of equal significance to the original fall at work that injured the shoulder. The same is true of subsequent car accidents that cause significant treatment, new MRIs, and injections in a person who has already had a work-related back injury.
Subsequent non-work accidents are pivotal in many workers' compensation case. These accidents often relieve the employer of paying an expensive order approving settlement with reopener rights. The reason is simple: injured workers receive permanent disability benefits for their “current complaints” at the time of settlement. The current complaints incorporate the complaints from the subsequent non-work accident. Employees are not entitled to receive permanency awards for their condition before the subsequent non-work event. Think about it: if a non-work accident has objectively worsened the medical condition originally injured in the work accident, it is impossible to distinguish the effects of the medical condition before the subsequent non-work injury from the effects after the subsequent injury. The employee might have healed if it were not for the subsequent non-work injury. The testimony at settlement regarding present complaints will by definition be closer in time to the events of the non-work accident. For the petitioner to prove that the present complaints are unaffected by the subsequent accident is impossible if the non-work subsequent accident worsened the medical conditions from the work accident. It would be like putting additional ingredients in a basic smoothie, drinking the smoothie for the first time, and then trying to describe what the drink would have tasted like before the ingredients were added.
Practitioners should read PT notes religiously. They often contain amazingly important nuggets of information about non-work activities. Most physical and occupational therapists are prolific note takers. They know how important it is to get the interim medical history, and they write it down. How many times have counsel read PT notes and discovered that the injured worker is complaining of a new injury playing sports over the weekend? That new injury may explain a sudden change in condition and break the chain of causation. It may lead to a Section 20 that otherwise would not have occurred. Nor should the practitioner assume that the IME doctor is going to read the treating notes thus relieving the obligation of defense counsel and adjusters to read them.
Just as prior family doctor and chiropractic records often hold the key to the defense of a workers' compensation case, so too subsequent treating notes may dramatically lower the defense exposure and lead to enormous savings for employers.
ABOUT THE AUTHOR
John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers' Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates. To visit his New Jersey Workers' Comp Blog, click here.
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