Workers’ Comp Basics

Many workers’ compensation cases involve unwitnessed orthopedic injuries.  Consider a case where an employee alleges that he or she felt sharp back pain around 11 a.m. in aisle 4 of the store while stocking shelves.  Suppose there is no security video.  Suppose further the employer provides treatment under Section 15 without admitting liability but still questions the claim.  How do adjusters and defense counsel investigate such a claim?  The answer lies in a thorough review of all relevant treating medical records as well as any employee accident form.

That brings us to the next question:  what exactly does one look for in a medical file or an employee accident form? There are a number of basic rules that apply to all cases involving unwitnessed accidents when it comes to assessing compensability and credibility.

First, look for inconsistencies on when the accident occurred and when the employee first felt pain.  In New Jersey the first treatment is usually rendered by an occupational facility, often followed with physical therapy and often a referral to an orthopedic specialist.  The starting point is always the very first medical record closest in time to the alleged incident.  Follow the trail.  Is the date of injury consistent in each record?  Are there long gaps in time between the date of the alleged incident and the first treatment?  Does the location of the pain remain consistent or do new injured bodily areas appear 45 days post injury?  These are all important indicators in evaluating compensability and credibility.

The next step is to focus on the mechanism of injury itself.  Again, start with the first date of treatment.  Don’t focus on the ultimate diagnosis three months later.  When a case is credible, the mechanism of injury is consistent.  The most important document to read in regard to evaluating the mechanism of injury is the employee accident form.  If the employer uses employee accident forms completed by the injured worker in his or her own handwriting, this is the most helpful document.  All employers have First Report of Injury Forms, but these forms are far less helpful than employee accident forms.  Why?  Because first report forms are usually completed by someone like a supervisor who only knows what he or she has been told.  The employee accident form has no potential for a “hearsay” objection. It is filled out by the injured worker close in time to the incident, so it stands to reason that the information will be the most accurate. By contrast, the first report form may not be filled out until weeks later.

The adjuster or defense lawyer should compare the description of the mechanism of injury on all forms and on all medical records.  Does the version of the injury vary markedly over time or does it remain the same?  If it remains the same, that helps make the claim credible.  If the employee states initially that she slipped but did not fall and felt back and knee pain, but a month later states that she slipped and fell hard on her left side and back, that is a significant discrepancy.  That fact alone may not win the case for the defense, but in conjunction with other facts, it may be pivotal.  For a physician, slipping but not falling may make a huge difference in causation analysis.

Practitioners must remember that from a legal viewpoint there are claims which may not be compensable because they may not arise from work.  That is why focusing on the precise mechanism of injury is critical.  So if the first medical records says, “employee was just walking on a flat surface and felt knee pain,” that claim may be dismissed as not arising from work or as an idiopathic event.  In New Jersey an accident requires an “unexpected event.”  Walking on a flat surface is something we all do all day long at work and at home.

There are often questions in medical records put to the injured worker by the medical professional about the cause of the injury.   A claim petition may be filed shortly after the alleged accident and may refer to a specific date of injury in the parking lot or in the store.   But suppose the first medical record reads something like this:  “Employee has had pain for a week. No trauma.”  That would be inconsistent with the allegations on the claim petition and may well justify a denial.

Defense practitioners must identify the specific location where the incident took place or when the first pain was experienced. If the employee accident form reads, “Employee lifted a machine in the store and felt immediate back pain,” but the first medical record reads, “Employee awoke at home with sudden back pain this morning,” there is a difference here.  The petitioner’s counsel may be able to reconcile the two statements or the two statements could point to a larger credibility issue.  These are the kinds of details that the defense must consider.   

Prior relevant medical records are hard to obtain in many states, but they often make a critical difference.  Some states like New Jersey have no specific discovery rules for getting prior records, but most doctors and physical therapists do ask about prior relevant medical conditions.  Example: “Have you ever had treatment to your left knee before this incident?”  If the employee answers in the affirmative, those records need to be obtained.  Judges will back that kind of discovery.  If the MRI reads, “Compare to prior MRI in 2019,” then the prior MRI must be obtained in order for the physician to opine that the present knee pathology arises from work. 

Sometimes the prior injury may have taken place 15 years ago and will have little relevance on the issue of compensability, but the records could still be relevant later for potential credits at the time of the award.  In contrast, there are cases where the employer may discover that the injured worker has been treating for a non-work injury in the weeks just before the work injury. This is a big red flag.  In that case, the reason for the employee’s pain may not be work activities at all but a continuation of a prior non-work injury.

It is worth highlighting one more point.  This practitioner has found it invaluable to read the notes of the physical therapists. Too often practitioners focus heavily only on the notes and diagnoses of the orthopedic specialist.  Those notes may be very good. However, bear in mind that the specialist generally sees the employee fewer times than the physical therapist.   Another point to consider is that more and more doctors use electronic medical reports that carry forward the same initial history throughout the chart.  Physical therapists spend a good deal of time with patients.  In one of my cases the physical therapist noted, “Employee’s knee is much worse today.  He was mountain climbing over the weekend and fell hard on his knee.”   That was found to be a new accident that broke the chain of causation.

Remember this point:  judges try to evaluate all the evidence and assess credibility of the injured employee, other lay witnesses, and medical witnesses.  They too are looking for consistency from both the employee in his or her case and the employer in their case.  Details matter to judges. There is no shaped mold that fits every workers’ compensation case.  Defending cases is not like baking.  But there is a logical process to use in studying every case. Unwitnessed accident cases can be very hard to defend, but a rigorous effort to obtain all relevant medical records and employee accident forms can make the difference between getting a win or a small Section 20 versus a substantial award.

The post The Crucial Importance of Examining Treating Medical Records and Employee Accident Forms appeared first on NJ Workers' Comp Blog.

Understanding the difference between “impairment” and “disability” is important in properly reserving files and in defending workers’ compensation cases.  Many people use the terms synonymously, but there is an important legal distinction.  An impairment refers to a problem with the structure or organ of the body.  Disability focuses on the functional limitations that are caused by the impairment with regard to performing activities at work or outside work.

This may sound like a subtle distinction but it makes a difference in the value of workers’ compensation cases and the validity of certain IMEs.  Two employees who are the same age can have the same injury, perhaps a medial meniscus tear requiring surgery, and both may file a workers’ compensation claim seeking an award of partial permanent disability for the leg.  Employee A has unsuccessful knee surgery and has had to give up her favorite passion of running.  Employee B has successful knee surgery and is able to pursue her favorite passion of running.  She has run several 5k races as fast as ever and even a few half marathons.  They each had the same impairment of the knee but would they receive the same award in court?  If you said no you are correct because they don’t have the same level of disability.

The New Jersey Supreme Court explained in Perez v. Pantasote that the employee must not only show an injury which restricts the function of the body or an organ (an impairment) but must also show either a lessening to a material degree of working ability or “a substantial interference with the other, non work-related aspects of petitioner’s life” (the disability).

What are the implications of this distinction for medical experts, adjusters, lawyers and judges? Let’s start first with medical experts.  If a medical expert is going to provide an opinion in an IME that an injured worker has a disability of a certain percentage, the expert has to consider how the injury affects the worker’s work life or non-work life.  Last week I read an IME from an often-used petitioner’s orthopedic expert who concluded that an employee had multiple disabilities from a significant accident.  When you added up the various disability estimates, they totaled over 100%.  There were several significant impairments – fractures and tears.  But on closer inspection of the report, it was noteworthy that the medical expert never asked whether the employee had ever returned to work (he had), whether the injury caused a reduction in hours (it had not), whether the individual had reduced non-work activities, whether the individual had given up hobbies or exercise, and indeed whether this accident had affected the worker’s function in any way whatsoever.  The expert’s disability estimates were in essence meaningless because he knew nothing about the man’s life before the accident and after he reached maximal medical improvement.

The problem with this particular IME was that the doctor focused only on impairment but not on disability.  He did observe that the accident caused daily pain and that cold and damp weather aggravated discomfort. But that is not enough.  Very often IME physicians evaluate medical records instead of the individual.  Examiners on both sides make this mistake from time to time. The IME physician may do a great physical examination, a splendid summary of the treating records but still neglect to ask questions about the effect of the work injury on the examinee’s work life or non-work activities compared to the level of function before the injury occurred.

What are the implications for adjusters and defense lawyers?  When new files come in, it is critical to reserve the case for likely exposure.  The medical records are reviewed, particularly objective studies like MRIs and operative reports, and a reserve is established based on medical impairment. That is all we have at the initial stage.   It is too early to know the effect that this accident will have on work or non-work life because no one really knows at the outset whether the worker will return to work, or even return to work and get a second job, or return to doing all his or her former non-work activities. So the initial focus is limited to impairment.  As the case progresses, the focus needs to shift to the level of function of the injured worker in all aspects of life, namely the overall disability.  That is why it is helpful to obtain prior medical records and to investigate through the employer what the employee’s activity level was before the accident. 

The New Jersey workers’ compensation system has a major flaw in allowing virtually no discovery, so often the only way to find out about level of function outside work is through social medial searches or field surveillance.  An IME performed after MMI has been reached is also helpful when the IME doctor asks the right questions.  Did the worker golf before the accident but now cannot golf any longer due to severe back pain?  Did the worker recover so well that she or he added a part-time construction job on top of the original job?  Is the worker now unable to do overtime work?  Once the lawyer or adjuster has this information, very accurate reserves for disability awards can be established.

For judges this distinction between impairment and disability is always important.  Every good Judge of Compensation understands that the award is not based on a diagnosis.  Judges don’t award disability based on operative reports or MRI results.  They try to get a sense of the effect of the injury on the injured worker’s work life and non-work life, and they factor that information into the value of the case.  A judge will have extensive knowledge and experience with workers who undergo surgery for complete rotator cuff tears, for example, but the judge wants to know what the impact of this injury and surgery was in this particular worker’s case.   Disability awards are case by case.

Take the hypothetical of an athlete like Cody Bellinger, for example, the Los Angeles Dodgers 2019 National League MVP. In the recent 2020 World Series, Bellinger hit a home run and after he touched home plate, he high fived a teammate, causing his shoulder to suddenly dislocate.  This had happened to him before, so he popped his shoulder back into place and stayed in the game.  Following the World Series, he had surgery to repair the shoulder.  If he were to file a workers’ compensation claim petition under New Jersey law, what would the Judge ask?  What would be relevant for an athlete?  The Judge of Compensation would consider whether he was able to recover the ability to throw a ball from center field to second base on the fly, hit home runs like he used to, and raise his arm overhead to catch a fly ball.  The judge would not base the award solely on the fact that he had a shoulder dislocation but on the impact of his impairment on his career and non-work activities.  If the injury turned out to have no impact on any of his life functions, the award could be as low as zero. 

This explains why it is ultimately insufficient for lawyers to say to clients that an operated rotator cuff tear is worth 25% permanent partial disability in New Jersey.  That statement tends to equate impairment with disability. The award in each case depends on the extent of recovery, the ability to restore pre-injury functions, and the ability to function at work and at home.  Some people with rotator cuff tears have minimal issues post-surgery, and their award may be far less than 25%.  For others the injury could end a career and be worth far more than 25%.   The lesson is that workers’ compensation practitioners need to focus heavily on the level of function both before the accident and after treatment has ended.  For practitioners and IME doctors, a thorough investigation of pre injury and post injury functions is essential in every case in order to accurately assess disability.

The post The Crucial Difference Between Impairment And Disability In Workers’ Compensation appeared first on NJ Workers' Comp Blog.

Workers’ compensation claims professionals know how important it is to ask about prior injuries in workers’ compensation.  That information can bear directly on causation and will often lead to credits at the time of settlement. But an underrated area of investigation remains subsequent injuries that take place after the date of the workers’ compensation injury but before the workers’ compensation case actually settles.

Consider a case involving a work-related back injury.  The parties have each obtained their IMEs but before settlement occurs, the adjuster runs an ISO report. That report reflects a recent motor vehicle accident involving the low back.  This non-work injury is significant enough to lead to orthopedic treatment and a law suit for personal injuries against the other driver.  How does this information impact settlement negotiations?

Petitioner’s counsel might argue that it doesn’t really matter because counsel already has an IME estimating 45% permanent partial disability for an unoperated herniated disc and respondent’s counsel has an estimate of 5% permanent partial disability.  Respondent’s counsel will maintain that this information is of great importance to consider.  To get maximum impact from the new accident defense counsel must obtain all treating records from the subsequent car accident.  Let us assume in this hypothetical situation that these new records show treatment at the same level of the spine with a recommendation for future surgery.  This could be a game changer and may lead to several results:

1. A section 20 settlement for considerably less money than had been anticipated on an Order Approving Settlement;
2. An order approving settlement for a lower percentage with a statement that the overall disability is now greater, providing insulation from any reopener; or,
3. Perhaps even a trial if the client insists on a dismissal of the case.

The argument that defense counsel has in its favor is that an award of permanent partial disability is based on present complaints, not on complaints given in the past to IME doctors.   That is the rule from Allen v. Ebon, which established that awards of permanent partial disability should be based on recent medical evaluations, not stale ones.  New exams may have to be ordered.  When it comes time to negotiate settlement, defense counsel can argue that the petitioner’s current complaints must inevitably relate to the subsequent injury.  The Judge of Compensation will ultimately have to decide whether the current complaints and permanent impairment reflect in part the prior work injury or mainly the new car accident.  In this hypothetical one thing is for sure: the new accident completely alters the negotiations and must lower the value of the case where the new injury is to the same body part as the original work injury.

This scenario often occurs in reopener cases.  Defense counsel will request answers to reopener interrogatories, and sometimes the answers to interrogatories contain information about a new, non-work injury to the same part of the body that was injured in the work accident. If the original injury was to the neck, and now petitioner admits to a new injury to the neck with a new MRI, what does respondent do?  The best argument, of course, should be for dismissal of the reopener.

As mentioned above, step one is to obtain all the new treating records, including any new MRIs, CT scans and x-rays.  Step two to send the records to the IME physicians for an opinion on whether the current diagnosis and complaints are causally related to the subsequent accident.  If there is evidence that the medical condition at issue has been worsened by the subsequent accident, defense counsel should have a very strong argument for a dismissal of the reopener petition.  Counsel for petitioner will try to argue that the condition was getting worse before the new accident occurred.  But that seldom makes logical sense.  Consider a motorist who got a crack in her car windshield from a fender bender caused by another driver.  Then one month later the motorist gets into another car accident caused by the negligence of some other driver, this time knocking out the entire windshield.  Would anyone seriously expect the insurance company from the first fender bender to pay for part of the windshield repair?  Of course not. The insurance company for the second accident would have to pay for the entire repair. 

The lesson is that workers’ compensation professionals need to put systems in place to make sure that a new ISO is run every six months or so during the progression of the case to see if there are new non-work injuries.  An ISO doesn’t cost much and it can lead to enormous savings.  The ISO may not be the only way to discover this information.  Sometimes the treating records, particularly PT notes, may make mention of a new injury; and sometimes the employer is aware of the new injury and communicates this information to the carrier or third party administrator. On occasion a petitioner’s own Facebook page may reveal a new injury.   No matter what, when testimony is taken at the time of settlement in support of any award, defense counsel must always ask the injured worker whether he or she has had any new accidents with additional treatment since the time of the accident or initial award.

The post The Crucial Importance of Investigating Subsequent Accidents appeared first on NJ Workers' Comp Blog.

There is a fairly widespread belief that any injury that occurs at work must be covered under workers’ compensation.  But that is not true.  There are several categories of injuries that happen at work which simply are not compensable.  Injuries which do not arise out of employment are not covered in workers’ compensation.  Not only must an injury occur during work, but it must arise out of work. In every state there are a number of useful doctrines that help explain and expand on the definition of “not arising out of employment” for traumatic injuries.

• Idiopathic Claims and Personal Risk Claims

These two doctrines are very similar.  The concept of idiopathic applies when the employee has a preexisting medical condition which is the true cause of the injury.  For example, an employee with severe osteoarthritis is walking down the corridor at work when his knee locks, without striking anything or falling.  The doctor examines and advises that further knee damage was caused by the act of walking on account of severe osteoarthritis. This is a classic idiopathic claim because the injury was entirely personal to the employee, not caused by work. 

Consider also an employee with prior shoulder dislocation issues who puts on her coat to go home after work and experiences a new dislocation of her shoulder. Although this happened at work, it was not caused by work.  All the petitioner was doing is something that we do when we leave work on a cold day:  namely we put on our coats.  The dislocation of the shoulder would be considered idiopathic and unconnected to the activities of work.  

The personal risk doctrine is very similar to the idiopathic claim doctrine but it better fits a situation where there is no prior medical condition.  One of the best cases for this doctrine is Coleman v. Cycle Transformer Corp., 105 N.J. 285 (1986).  The petitioner got a permanent wave solution in her hair, and the next day at work, she lit a cigarette prompting her hair to burst into flames and resulting in burns. The Supreme Court found this injury not compensable because the risk was personal to the employee due to her permanent wave solution, and the connection to work was negligible.

• Deviation from Employment

This doctrine has two major applications.  The first applies to an activity that is either unconnected to work or so far afield that a reasonable person would never do it.  For example, a lawyer is outside his office and calls a colleague on his cell phone who is working at his desk, asking the colleague to come outside and help carry work files into the office. The colleague decides not to walk down the steps or take the elevator but instead opens his window and jumps 20 feet to the ground breaking his leg. This activity of jumping from one’s window is so hazardous that no reasonable person would do it.  The injury clearly happened during work but it would be a deviation from employment.  An employer should not have to insure against inherently dangerous activities that no reasonable person would undertake.

Similarly, in Money v. Coin Depot Corp., 299 N.J. Super. 434 (App. Div.), certif. denied, 151 N.J. 171 (1997), the petitioner was an armored truck security guard who began playing Russian Roulette with his gun while he and his colleagues were transporting money.  The gun discharged and killed the petitioner. The court found that this activity was a major deviation from employment because it was so inherently dangerous.

The second type of deviation from employment is found in connection with travel that is unconnected to work.  The leading case is Jumpp v. City of Ventnor, 351 N.J. Super. 44 (App. Div. 2002), aff’d, 177 N.J. 470 (2003).  In that case the petitioner worked as a pumping station operator, driving throughout the city.  He got permission from his supervisor to stop and get his mail in the morning as he was driving along the main road in town to the next pumping station.  He fell and fractured his pelvis returning to his municipal vehicle parked in the post office lot after getting his mail.  The court considered petitioner’s injury to be a major deviation because the activity of getting his own mail, even it if it was permitted, had no connection to his work.

• Intentional Self Injury

Employees who deliberately injure themselves will almost always be denied compensation.  If an angry employee punches a wall in an argument at work and breaks her hand, that injury would not be compensable because the action of punching a wall is highly likely to cause self injury.  In the same way, if Employee A assaults employee B and Employee A is injured in that process, courts will almost always find this to be self-inflicted and not compensable.  The injury to Employee B, of course, would be covered as the victim of an assault.

• Recreational Activities

Suppose an employee decides during a break in the morning to pull out some rope, moves away from his desk, and begins to jump rope for a few minutes, only to get her foot tangled up in the rope leading to an injury.  Would this be covered in workers’ compensation?  It did happen at work, right?  Under New Jersey law this would not be compensable because recreational activities that just promote the health of the employee are not covered.  For a recreational activity to be covered it must create a benefit to the employer greater than health and morale and must be a regular incident of employment.  Few recreational activities can meet this test of promoting a benefit to the employer greater than health and morale.  The same is true of social activities.

However, if two employees are fooling around at work and kidding each other, and then one throws a pencil at the other as a joke, but the pencil strikes the other employee in the eye, the judge will probably view this activity as horseplay  – – not a recreational activity.  Unlike the law in many states, horseplay is NOT a defense in New Jersey.  Horseplay is always compensable as to the victim and sometimes compensable as to the instigator. There is a line between horseplay and assaults/altercations, and outcomes may differ depending on whether that line is crossed.

There are certainly other doctrines that overlap some of the above examples. There are a few cases which discuss the doctrine of “abandonment of employment.” In my view that doctrine is really synonymous with deviation from employment.  The differences are subtle.  One can say safely say that when a  traumatic claim is denied for an activity which occurred at work, one of the above doctrines will constitute the legal basis for the denial under the broad heading of not arising from the employment.

The post When Are Injuries That Occur At Work Not Covered By Workers’ Compensation? appeared first on NJ Workers' Comp Blog.

Let me begin with a correction to a prior blog.  A few weeks ago I wrote in a blog about a hypothetical
scenario where an employer requires an employee to be quarantined because the
employee was exposed to a fellow employee who tested positive for
COVID-19.  Several readers wrote to disagree
that the period of lost time should be paid in workers’ compensation, even if
the quarantined employee ultimately tested negative and no other workers’ compensation
benefits were due.  These comments led me
to rethink the issue.  Having reviewed
case law in different states on preventive actions and workers’ compensation, I
believe the readers are right that temporary disability benefits should not be
paid in this situation.

The argument that the employee would make to the judge
is that he or she was required to go out of work for a health condition
occurring at work.  The employer would counter
that if the quarantined employee tested negative, then there is no workers’
compensation issue. This is the better argument: the employer’s action was
simply preventive and therefore no temporary disability benefits should be
paid.  Any decision on payment of workers’
compensation temporary disability benefits and other workers’ compensation
benefits should await the outcome of testing, appropriate investigation and the
individual proofs in each case.

Many employers are paying full salary to quarantined employees, eliminating the issue completely.  As of April 1, 2020 there is also a new law that addresses this situation. It is known as the Paid Emergency Sick Leave Act. This law helps employees get paid in precisely the situation addressed in the hypothetical scenario. The law only applies to companies with 500 or less employees.   Attorneys Ralph Smith and Lara Ruggerio of Capehart Scatchard’s Labor Department have written on this subject.  The following is an excerpt from their recent HR Blog.  The purpose of the Act is to provide sick time to employees who are unable to work due to the following situations:

• Quarantine or isolation relating to
  COVID-19  
• Self-quarantine ordered by a health care
  provider
• Employee experiencing symptoms of COVID-19
  and seeking medical diagnosis
• Employee who is caring for an individual
  who is quarantined or is self-quarantined
• Employee is caring for a son or daughter
  due to school of child care closure due to COVID-19 precautions
• Employee is experiencing any other
  substantially similar condition specified by the Secretary of Health and Human
  Services in consultation with the Secretary of Treasury and the Secretary of
  Labor

The Act applies to all public and private sector
employees with less than 500 employees. 
Full-time employees are entitled to 80 hours of paid sick time.  A part-time employee is to receive required
compensation for two-thirds of the amount of their usual pay.  However, in no case shall the paid sick time
exceed the amounts below:

1. $511.00 per day (and $5,110.00 in the aggregate) if the employee is out due to:
   1. Quarantine or isolation relating to COVID-19
   2. Self-quarantine ordered by a health care provider
   3. Employee is experiencing symptoms of COVID-19 and seeking medical diagnosis
2. $200.00 per day (and $2,000.00 in the aggregate) if the employee is out due to:
   1. Employee is caring for individual who is quarantined or is in self-quarantine
   2. Employee is caring for a son or daughter due to school or child care closure due to COVID-19 precautions
   3. Employee is experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor

Employers are to receive a tax credit for payments made to employees under this law. Moreover, employees may opt to use other forms of paid leave instead of this leave but the employer cannot require that use.  A business with 50 or fewer employees may ask the DOL to exempt it from following this law if compliance will jeopardize the viability of the business as an on-going concern.  The United States Department of Labor recently issued a guidance on what an employer must show to meet these requirements to obtain a potential exemption. The Department of Labor also has the discretion to exclude health care providers and emergency responders from eligibility.

The post Preventive Actions Do Not Trigger Temporary Disability Benefits In Comp and New Paid Emergency Sick Leave Act For Coronavirus For Employers With Less Than 500 Employees Effective April 1, 2020 appeared first on NJ Workers' Comp Blog.

The concept of legal causation is fundamental to master in
handling claims. If there is no legal causation, the claim should be
dismissed.  The claimant must prove an
accident which arises from the employment. 
There must be a work connection.  When
a case poses a serious issue of legal causation, the most common mistake is to
send the injured worker immediately to the doctor for an opinion on
causation. 

Let me explain this further.  Let’s say your case involves an employee whose
allegation is that she got up from a chair and felt sudden low back pain, or
was walking down the corridor to speak with her supervisor when she felt knee
pain, or she put on her coat to leave for home and felt sharp pain in her
shoulder.  These are examples of normal
and routine activities that happen at work (and
everywhere else in life) that manage to find their way into workers’
compensation files.  What is it that all
these scenarios have in common?  The
answer is the absence of legal causation.

The natural impulse of an adjuster or defense lawyer is to
get a medical opinion when a claim is filed. 
That is how we are trained.  That
impulse must be resisted when there is no legal causation.  Why? 
Because the doctor is going to advise you in the first instance that
rising from the chair caused low back pain, in the second instance that walking
down the corridor led to pain from some defect in the knee, and in the third
instance that putting on the coat may have caused a tear in a weak
shoulder.  That is medical causation, not
legal causation.  Opposing counsel will
argue:  “Why hasn’t this case been accepted? 
The doctor says the condition is causally related, right?”  A deep hole has been dug, and the defense
dug it.

After a certain amount of backtracking on why the doctor’s
opinion really doesn’t matter, the defense must eventually argue that there is
no legal causation.  Secondarily, the
defense must concede that the medical opinion was unnecessary as it clearly placed
the defense in an awkward position in court. 
In essence, the defense must contend that there was no accident that arose
from the employment.  Not everything that
happens at work arises from work.

Sometimes it helps to look at issues like this from a different vantage point.  Imagine sitting comfortably in your chair on a Sunday afternoon watching a football game.  At a commercial break, you get up to get a snack and suddenly feel sharp pain in your back as you come to a standing position.  You begin a course of treatment for a severe sprain.  Would you argue that home caused your back injury?  Of course not.  People would laugh at such a suggestion because this could have happened anywhere, arising from a chair in church, at a movie or on a bus.  It just so happened that it occurred at home during the Sunday ritual of watching a football game, but home was not the proximate cause of any injury.  In workers’ compensation there must be a true work connection between the activity performed and the injury experienced.  Mere coincidence does not substitute for causation. In contrast, a chair that breaks while one sits in it certainly would meet the test of an accident.

Claims that lack legal causation happen every day in every state and often become the subject of extensive medical, temporary disability and permanency payments.  Some routine activity that we all engage in, like bending to tie one’s shoes, causes pain and leads to treatment, but often the activity is not work connected to begin with.  A doctor is consulted and gives an opinion on medical causation, and everyone forgets about the legal causation requirement.  The claim gains momentum and the costs mount. 

Common sense tells us that if an employee turns to look out the window at work or turns to speak with a colleague and feels a spasm in her neck,  this is not a workers’ compensation accident.  The neck may need treatment nonetheless.  Medically speaking, the action of turning one’s neck can occasionally lead to pain but legally speaking, there is no accident arising from work by just turning to look at a person or a thing.  So when you encounter a case like this, the best advice is to stop, analyze the facts, and try not to snatch defeat from the jaws of victory, as the old saying goes.

The post Why It Is Important To Understand Legal Causation In Workers’ Compensation appeared first on NJ Workers' Comp Blog.

The New Jersey workers’
compensation system has one glaring drawback for employers, namely the absence
of any formal discovery in traumatic injury cases.  There are no standard interrogatories in
traumatic claims and no depositions.   The
consequence of this is that claims sometimes get passed through workers’ compensation
that really involve long-standing and preexisting conditions which no one asked
the worker about.   There are many cases
where preexisting conditions that may have been highly relevant are discovered
only in the final IME for permanency long after surgery has taken place.  The defense IME physician will often question
causation at this point, but it is too late to recover payments made by that
time.

What should adjusters and treating physicians ask about when new claims arise?  There are numerous areas of inquiry that are important, but this blog will focus on only five main areas.  Before delving into past medical and life history, remember that knowing the mechanism of injury is the starting point in every case.  Best practice is to have the injured worker write down in his or her own words how the injury occurred and where the pain is located.  Once that is done, we move on to the past medical history.  Certainly in all states, particularly densely populated states like New Jersey, an important question is about past motor vehicle accidents.  If the answer is that the worker has been involved in prior motor vehicle accidents, this should be narrowed down to accidents which led to treatment along with the names of the treating physicians so that the adjuster or defense counsel can take steps to obtain prior records.  Yes, ISO reports are helpful but there are many cases where the ISO report does not reference a prior motor vehicle accident that the employee talks about.  Remember that the focus should not be just on prior car accidents but on prior accidents in general, such as slip and fall injuries, sports injuries and the like. 

Another critical area to inquire
about for spine and shoulder cases concerns prior chiropractic history.  Why is this important?  Because prior chiropractic treatment records
will often bear directly on any claim involving the shoulders or spine.  The records themselves often reference
preexisting injuries, prior x-rays and prior MRI scans.  This information may be from many years ago
or may be fairly recent.  If it is from
many years ago, the information may still help the employer obtain credits for
preexisting disability under N.J.S.A 34:15-12(d).  That may mean a cost savings for
employers.  If the prior chiropractic treatment
was close in time to the accident, the records may raise causation issues that
may result a denial of the case or a Section 20 settlement.

That leads to our third important
area of inquiry:  prior x-rays, prior
MRIs, prior CT scans, and prior EMGs. 
These are the studies that Judges of Compensation must focus on because
the emphasis in New Jersey, when it comes to permanency, is on “objective
medical evidence.”  All of these studies
are considered to be objective evidence. 
Employers are often surprised that their treating doctors do not ask
specifically about these prior studies, but experienced workers’ compensation
physicians will routinely ask about prior studies.   Defense counsel can write to opposing
counsel and ask about prior studies and scans, yet there is no formal rule in
New Jersey for exchange of such information. 
That means that adjusters who do initial interviews are often in the
best position to ask these questions, and initial treating physicians should
also be asking questions along these lines. 

Prior and current hobbies and
recreational activities are paramount. 
Consider, for example, a worker who reports that many years of standing
and lifting at work caused severe knee degeneration leading to a need for
bilateral knee replacements.  As we know,
total knee replacement surgery is performed because of a painful bone-on-bone
condition that takes years to develop. 
Yet seldom does one see specific questions about long-distance running,
jogging or martial arts in the medical records.  These are activities that can cause or
contribute to knee problems. 

Last but not least in the top five
areas of inquiry (there are many more areas of importance, of course) are
second jobs and other employment involving physical activities.  Many New Jersey residents have second
jobs.  The state is an expensive place to
live in, and a surprisingly large percentage of workers has secondary
employment.  Many police officers and
firefighters have second jobs because they have shift work with several days
off in a row.   If a worker files a claim for carpal tunnel
syndrome from occasional typing and answering phones at work, the adjuster and
treating doctor should be asking about typing activities in any other job, Facebook
and social media keyboard activities, and certainly part-time jobs such as
working as a deli clerk or playing music professionally.    

Many years ago this practitioner had a bewildering case in which a worker with a sedentary job filed for a hernia claim from some minor physical effort at work.  The employer did not want to accept the traumatic claim and subsequent surgery because the accident seemed so minor.  The case went to trial.  In the course of testimony, the worker admitted to having a second job which he conceded was very physical: namely, tree climbing for 20 hours per week.  He admitted to having abdominal pain while performing this activity.  No one knows anything about this second job!  Why? Because the New Jersey compensation system does not have formal discovery.  This puts employers at a huge disadvantage.   The lesson is that sometimes the second job is much more physical than the full-time job for which the claim has been filed, but you won’t know about the second job if no one asks.

A recorded statement taken by an adjuster at the start of the case is invaluable to defense counsel, as are employee accident forms filled out by injured workers and detailed medical histories obtained by occupational and treating physicians.  We generally know what happened after the work accident, so there must be some time spent on taking a history of the injured worker’s prior injuries, jobs and recreational activities.  Without this information employers are often at a loss to make an intelligent decision on whether to accept or deny a case.  Causation is the threshold issue in workers’ compensation:  if it is not a work-related condition, the case should not be going through workers’ compensation.

The post What Past Medical History Is Most Important In Orthopedic Claims in Workers’ Comp? appeared first on NJ Workers' Comp Blog.

Employers are responsible for “accidents arising out of
employment” under most state workers’ compensation laws.  What does this language really mean?  The easiest way to interpret this language is
to consider whether the accident has a genuine connection to work or just
happens to occur at work.

Take for example someone who is sitting at work talking to a
colleague about a work matter when suddenly her jaw locks, causing severe pain
and leading to treatment.  Would this be
a work accident covered under workers’ compensation? It happened at work, yes, but
what is the connection to work? The answer is that there is no bona fide connection
to work activities.  Talking is something
we do all day and does not amount to an accident.  If you consider the same scenario to have
happened at home, where a husband is speaking to his wife when his jaw locks,
one would certainly not call this a “home accident.”  Just as the home did not cause this to occur,
neither would work be the cause of such an incident.  Some events just happen to occur at home or at
work because we spend most of our time in these two locations.  These kinds of events could just as easily
happen at the local supermarket or at a museum.

In much the same way, if one is walking from his den to his
kitchen at home when his knee locks, leading to a visit to a knee surgeon for
treatment, few would call this a “home accident” unless there was a fall on the
floor or a collision with an object.  The
same would be true at work: feeling leg pain while just walking is not an
accident absent a fall or some other force acting on one’s body.  Yet we all know that claims like this get
accepted all the time by employers because of a mistaken belief that something
is compensable in workers’ compensation just because it happened at work.   The part of the equation that is often missed
is that there must be some genuine connection to work, such as a slip and fall
on a hard surface, a trip and stumble on a torn carpet, or a collision with an
object at work.

The definition of an accident is “an unexpected event.”  So if a teacher is walking and a student
comes barreling down the hallway, not paying attention, and slams into the
teacher causing a hard fall and damage to the knee, that is an unexpected event
clearly connected to work.  It both
happens at work and arises out of work and is therefore compensable.

It remains this practitioner’s opinion that many cases get accepted in workers’ compensation that really have no connection to work other than that the event just happens to occur at work.  If you are at home, and you put on your overcoat on a cold day to go outside, when you feel a tear in your shoulder, you would not think that the home caused the tear in the shoulder.  The same is true if this happened to occur at work.  The reason such events often get accepted is that the employer sends the employee to a doctor, thinking the compensability decision depends on a doctor’s opinion.  It doesn’t.  The doctor then prepares a report and states the obvious: that putting on the coat caused a tear in the shoulder.  But the issue is a legal one not a medical one:  does it arise out of work, or is there a true work connection?  We all put our coats on during cold weather several times a day.  As a matter of law, not medicine, this tearing one’s shoulder while putting on one’s coat to go home is not an accident covered by workers’ compensation.  There is no work connection at all, and it just so happens that at this point in one’s life a tear occurred while from a personal action.

We all know this concept is true because we all have heard of cases where someone is driving a car and suddenly has a stroke.  Or someone is sitting at a chair at home or work when the stroke occurs.  Where the stroke happens to occur is simply pure coincidence because there is just no way for medicine to predict when a person who has risk factors will have such a cerebrovascular event.  But we do know that having a stroke sitting at one’s desk is not work related.  Those claims get denied and are won by the employer.  So think of “arising out of work” as meaning that there is a genuine “work connection.”

The post The Concept of “Work Connected” in New Jersey Workers’ Compensation appeared first on NJ Workers' Comp Blog.

An independent medical examination can be requested at any
reasonable time and place in the state for a variety of reasons: there may be an
issue of causation, ability to work, second opinion on surgery, need for
further treatment, or assessment of permanent partial disability.  No matter what the purpose of the examination
is, a well-reasoned IME is critical to the successful defense of workers’
compensation claims.

This blog focuses on the steps employers, carriers, third
party administrators and lawyers should take as well as the mistakes to avoid
in setting up IMEs.

Explain the nature of
the claim to the IME physician.

Example:  Employee
files an occupational claim petition alleging physical labor from 2000 to
January 30, 2019 caused knee pathology. The employer denies the claim petition.
An IME is arranged.  There is no
explanation of the allegations of the claim to the IME physician. No letter is
ever sent other than perhaps a check-off letter asking for guidance on “permanency”
and “causation.” The injured worker tells the physician during the IME that on
January 30, 2019 he felt pain in his left knee while walking at work. The
employee has an MRI showing a tear. The doctor writes a report stating, “I find that the petitioner’s accident of
January 30, 2019 caused his knee pathology and I recommend arthroscopic surgery.”

What went wrong? The claim was not for a specific accident!  January 30, 2019 was just the last day of
exposure when the pain was noticed or became intolerable.  Occupational claim petitions are required to
list a beginning and end date.  This
claim asserted that 19 years of physical labor caused the knee pathology, not
walking at work one day (which is not a true accident).  The doctor in this case did not know that the
claim was denied, nor that this was truly an occupational claim and that the
worker was never injured on any particular day. 

Send the IME
physician key information in the case:

As a general rule, the IME physician wants to read the claim
petition to understand the formal allegations, as well as the answer of the
respondent. The doctor wants to see all treating records including prior
records that may be relevant.  If there
are answers to interrogatories, the doctor will want to see them as well
because they often contain important information.  If there is a recent and subsequent injury,
whether work or non-work related, the IME doctor will want that information.

If you have a
specific doctor or type of specialty you need for an IME, don’t call an IME
group and ask for the next available IME date without mentioning the particular
physician or specialty.

IME companies have dozens of physicians that they schedule for IMEs. Some are surgeons; some are not.  If you want the earliest possible date, the company will find the physician whose calendar is open and assign you that doctor.  That may or may not be the doctor or specialty you wanted. Some physicians are very busy and booked out for three months; others have fewer assignments.  If you just want any orthopedic surgeon as soon as possible, but you do not want an occupational physician or physiatrist, then make that clear.

Make sure you have
all the relevant records –including records of prior and subsequent accidents –
before setting up the IME.

We all want cases to move quickly.  The average New Jersey claim petition lasts
28 months, so understandably clients are concerned about moving files.  However, rushing an IME is generally a
mistake.  The absence of critical records
often costs the employer a great deal of money.   The IME doctor can only give an opinion on
the records he or she has.  There may be
prior records that will show that the condition at issue was already in
existence a few months before the accident, or that there has been a subsequent
non-work car accident which has significantly aggravated the work-related
condition.  The process of getting
medical records takes time.  It takes
time to prepare and send HIPAAs to opposing counsel, who then send them to
their clients to be returned to respondent counsel.  Hospitals often delay sending records.  The hospital may reject the medical
authorization and demand a subpoena.  But
getting the prior or subsequent medical records may help clarify whether the
claim is even work related, thereby avoiding costs of surgery and a large
permanency award, with a potential reopener down the line.  This practitioner has seen cases where the
doctor is missing almost all the treating records and writes a report basically
drawing no conclusions pending receipt of medical records.  That creates a need for a second IME with
double the cost.

When a case has high
exposure or is likely to be tried, retain the most qualified expert.

Yes, it costs more to retain a board certified expert with a sub-specialty. But there are many high exposure cases in workers’ compensation, and the cost of not retaining a specialized expert is far greater than the extra $1,000 you may pay for a medical report from a highly qualified expert.  When you have a case involving lung cancer, you should retain a board certified oncologist or pulmonologist.  There are many internists who do such examinations but they may not have sat for or passed the board certification in pulmonology.  The outcome of a case often depends on the credibility of competing experts.  Judges always assess credibility of medical experts; they review their training and qualifications, and they consider the expertise of the IME physician when the experts flatly disagree on an issue in the case. This advice is also true in orthopedic cases.  If the case involves an issue of whether a fusion surgery should be performed, respondent is far better off retaining an expert who performs fusions, rather than an expert who does not perform such surgery.  

Find out early on if
a translator is needed.

There are few things in workers’ compensation more
frustrating than cancellation of an IME because the employee could not converse
with the IME physician.  Contact must be
made early on with petitioner’s attorney to inquire whether the injured worker
will need a translator and if so, what specific language will be needed.

Try to make a reminder call or send an email to petitioner’s attorney a few days before the IME.

This is not always possible to do, since everyone is so busy, but it pays off.  Many times a letter is sent to a petitioner’s attorney two or three months before the exam date.  When an exam is set up months in advance, there is a higher likelihood of a missed appointment.  Communications fall apart or injured workers forget about the exam date.  If possible, a follow-up call or email to counsel a few days before the exam may eliminate a potential missed appointment.

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