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What Past Medical History Is Most Important In Orthopedic Claims in Workers’ Comp?

By on October 4, 2019 in Workers' Comp Basics with 0 Comments

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.

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John H. Geaney

About the Author

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.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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