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.
