Strategies in Winning Occupational Disease Claims

In part one we examined the law surrounding New Jersey occupational disease claims and trends in our state (see last week’s blog).  In this segment, we will explore strategies and tactics employers can take to win occupational disease claims.

Winning workers’ compensation claims depends more than any other factor on obtaining past medical history.  Experience teaches us that the vast majority of claimants who file back, neck, shoulder, leg, respiratory, and stress claims have had symptoms and treatment in the past, but often this information does not emerge and is not discovered until too late. This is particularly true in New Jersey where depositions are not permitted except in rare cases on motion, and where interrogatories are only allowed in occupational disease claims – and the questions are pre-printed and often irrelevant.  The single greatest reason that workers’ compensation benefits are overpaid is the failure to discover prior medical history.  In occupational disease claims, an employer will overpay virtually every case if the employer does not know what the employee does outside work and has done in the past and does not have an accurate picture of the employee’s health before the claim was filed.

It is imperative for the employer to identify the prior family doctor and get his or her records going back as far as possible.  That is true for all occupational orthopedic claims, respiratory claims, carpal tunnel claims and stress claims. As mentioned last week, the employer defeated the carpal tunnel claim in Huntoon only because respondent’s counsel insisted on obtaining prior family doctor records, which led directly to the statute of limitations defense.

Consider for a moment what the adjuster and defense attorney are looking for:

•  In respiratory claims, the family doctor records may contain the past smoking history, references to chronic cough or history of allergies.
• In carpal tunnel cases, the family doctor records may reveal diagnoses of conditions which are known to cause carpal tunnel syndrome: hypertension or diabetes, for example.
• In occupational orthopedic claims, the family doctor records may contain information about arthritic pain, joint pain related to weight gain, pain from over-exercising at the gym or in jogging, and treatment due to car accidents and slips and falls generally.
• In cancer cases, the family doctor records often refer to family history of cancer.

In addition to obtaining prior family doctor records, the adjuster and defense counsel should be writing to claimant’s counsel or filing supplemental interrogatories asking about the following:

• In respiratory claims: the name and address of allergists the claimant has seen in the past, plus skin testing results;
• In occupational hand claims, the name and address of rheumatologists and surgeons who have seen the claimant in the past;
• In occupational orthopedic claims, the name and address of any chiropractor whom the claimant may have seen in the past as well as location of any MRIs, EMGs or other objective studies.
• In occupational stress cases, the name and address of all prior psychologists, mental health counselors and psychiatrists.

Most defense lawyers around the country believe that there is no level playing field for employers when it comes to workers’ compensation. As far as discovery goes, New Jersey’s system is seriously tilted against employers.  While New Jersey has employer control of medical care, that fact is not of any consolation in an occupational disease claim because almost 100% of occupational disease claims are denied at the outset.  There are seldom any authorized treating records available. So adjusters and defense counsel have to be creative in conducting informal discovery.  Since the standard pre-printed form interrogatories do not focus on what employers need to know, adjusters and defense counsel must explore prior medical history informally, seek information about second jobs, prior and present hobbies, martial arts, sports and recreational activities, and inquire about hobbies like woodworking or crocheting in repetitive stress claims. When the claimant’s counsel will not cooperate, defense counsel should file a motion for supplemental interrogatories.

The tactics that help employers win occupational disease claims vary depending on the nature of the allegations.  Respiratory claims are particularly frustrating for employers because often they are brought like class actions with dozens of claimants filing petitions at once, almost none of whom have ever treated before for breathing-related complaints!  New Jersey has always had its share of plant closing cases, and these cases typically involve respiratory claims.  The good news is that employers can win the vast majority of these cases at trial.  The reason employers have the edge is that respiratory claims are unique in having objective data to support the defense.  Pulmonary function studies provide scientific information on lung function, and the tests are repeated to reveal if the claimant is not making a genuine effort to exhale or inhale. No matter what the claimant says of a subjective nature (short of breath, trouble sleeping, or coughing), pulmonary function studies provide reliable objective evidence which satisfies the standards of N.J.S.A. 34:15-36.

When an employer has to fight respiratory claims, whether in a mass filing following a plant closing or in an individual claim, the employer needs to retain board certified pulmonologists who do more than just spirometry.  The employer needs lung function and diffusion capacity studies in addition to spirometry because all of this information provides scientific proof of lung function.   In 90% of plant closing respiratory claims, the pulmonary function testing turns out to be normal.  Where the tests are abnormal, there is often an allergy history or cigarette smoking history.  A claimant can complain in testimony of shortness of breath but if the FVC and FEV1 parameters are normal, that fact will carry the day with the judge because this is objective evidence. Awards must be based on objective evidence of restriction of function under N.J.S.A. 34:15-36. Many cases have been decided in the past few years in favor of the employer on respiratory claims solely because the employer retained the better medical expert, who did spirometry, lung volume testing, and diffusion capacity testing.

Employers who must defend respiratory claims following plant closings should try to procure photos of the work environment, preferably video of the work environment, so that the defense expert and judge can see first-hand what the conditions really were like.  Claimants in plant closing respiratory claims tend to say the same things: “the atmosphere was dirty and dusty at all times, and I coughed a lot.”  But the photos and videos of the work premises can rebut these allegations.

One little known fact is that mild bronchitis is excluded from compensation in N.J.S.A. 34:15-36.  Many cases come down to complaints of a cough for which the employee has never treated.  Arguably, if this complaint is true, it is a condition of mild bronchitis, which is not compensable by law.

In any type of occupational disease claim, social media plays a major role because many claimants post information on Facebook or other sites that contradict their assertions in the workers’ compensation claim.  Ex:  employee in an occupational knee claim posts photos of recent 5k runs, or employee in occupational back claim posts photo of himself lifting 400 pounds at the gym.  Defense law firms often win many traumatic and occupational disease claims simply by doing social media searches.

Insurance carriers and third party administrators have access to ISO reports, and employers should re-run ISO searches periodically during the life of the case.  An ISO report will often lead to other accidents or claims which may independently explain the reason the claimant has certain symptoms.  In the case of Jackson v. Township of Montclair, No. A-2212-11T2 (App. Div. July 5, 2012), the employee denied any prior knee problems only for the adjuster to discover that one year before the workers’ compensation accident, the employee had injured his knee in a car accident and had the very same diagnosis at that time.  The employer eventually pressed successfully for a dismissal based on workers’ compensation fraud.

Collaboration among the employer team (department supervisor, HR, plant manager, claims professional, defense counsel, and others) will almost always lead to valuable information about the claimant.  For this reason, employers who actively get involved in the defense of claims have uniformly better results than employers who simply refer the entire defense to the carrier/TPA and defense counsel.  This point cannot be emphasized enough: no one knows more about the work conditions and the claimants than the management team.

When all the discovery has been completed, the choice of independent medical examiner is dispositive.  The entire investigation, prior medical information, surveillance or videos of the job must go to the expert along with an explanation of the legal standard under N.J.S.A. 34: 15-31.   Not enough time is spent on choosing the right medical expert.  Factors to consider include whether the medical expert supports his opinion with scientific articles or just generalizes on causation, whether the medical expert testifies well in court, and whether the medical expert is known to ask detailed past medical history and past hobbies/recreational activities. Occupational disease claims depend on science because the standard is whether the occupational disease is produced by causes that are characteristic of or peculiar to the occupation.  Hence, Dr. Kenneth Peacock will provide medical literature to support his opinion that a given activity – typing, for example – has not been shown to be linked to the development of carpal tunnel syndrome.  That sort of testimony is powerful both in the Division of Workers Compensation and in the Appellate Division.  The claimant’s doctor may say simply that typing caused the carpal tunnel syndrome condition, but if he or she cannot back that theory up with research or medical literature, the assertion is nothing more than a net opinion.  So clients and counsel should dialogue the choice of defense expert, and in that connection, the cheapest expert is generally the worst choice.

To sum up, occupational disease cases can be won consistently by the employer, particularly occupational respiratory and stress cases.  The case law is favorable in both areas of the law.  Respiratory cases can often be won just because the employer retained the best pulmonary expert in the region who does the full range of pulmonary function testing.  Stress cases can be won because every employee is under stress generally, and generic stress is not compensable. Further, stress caused by merited criticism is not compensable.   Occupational orthopedic claims involving the joints or upper extremities are more challenging for employers, but they can be won with strong collaboration among the defense team and with exhaustive past medical discovery.