One of the most common mistakes that an injured makes is the failure to relate fully and accurately how the injury occurred (the work injury history) AND to ensure that the medical provider records the history of injury correctly.
Thus, if an injured worker fails to give a complete and accurate work injury history or the medical provider makes a mistake or omission and reports the work injury history incorrectly, the incomplete and inaccurate medical record is nevertheless created. Unfortunately, it is nearly impossible to get a medical provider to correct a mistake or omission in a medical chart. This problem tends to arise most often in cases of severe injury. In such cases the injured worker’s trauma and pain are acute to the extent that he/she is unable to relate an accurate and complete history.
Defense attorneys, actuaries hired by employers, “independent” medical examiners hired by employers, BWC reviewing physicians, MCO physicians, and BWC claims service specialists are continually searching for inconsistencies and deficiencies in the injured workers’ medical records. They do not search for reasons to allow and approve claims and medical treatment; rather, they first search for reasons to defend and deny claims. They are relentless in their quest throughout the processing of the claim.
The following considerations regarding an injured worker’s contact with his or her medical providers are central to avoiding issues that might put at risk an otherwise valid Ohio workers’ compensation claim:
Initial Work Injury History is the Most Important
The work injury history provided to the very first medical provider is normally the most important. Therefore, if the injured worker later changes or “corrects” the history he/she opens the door to multiple credibility issues. As a result, the validity of the medical evidence become suspect.
Confirm Your Work Injury History is Recorded
The initial history of injury is typically given to an emergency room physician, urgent care physician, or occupational health facility physician. These medical providers are often rushed, do not take notes carefully, and/or fail to record correctly the history provided by the patient. Therefore, the injured worker must take care to confirm that his/her work injury history is heard and recorded.
Activity Prior to the Onset of Pain is Often the Cause
Keep in mind that physical activity prior to the actual onset of pain, rather than activity at the time of the onset of pain, is often the cause (and therefore the description) of the injury. For example, heavy and repetitive lifting on the job today might not result in symptoms until tomorrow. Similarly, squatting and twisting of a knee might not cause the knee to pop or give out until several minutes later. In such cases, the injured worker must describe his/her activities prior to the onset of pain, particularly when the onset of pain occurs during normal physical activity.
Take Extreme Care When Completing the Patient Information Form
The injured worker often is provided an intake form or patient information form to complete. This form provides another opportunity to provide a full and accurate work injury history. Extreme care is required when completing these forms. Likewise, this is true of completing an incident report provided by the employer.
Fully Describe the Injuries to Every Body Part
The injured worker must describe each and every body part that was injured. In many cases an injured worker will describe only the most symptomatic or painful problem. He/she however neglects lesser problems. Unfortunately, the lesser problems following a work injury might later become much more significant problems. This frequently occurs in back and neck injuries when the injured worker will fail to report all areas of the spine that were injured. The consequence is the creation of a major issue of fact when the injured worker later tries to add the unreported body part to his/her claim.
Check Forms for Accuracy Prior to Signing Them
If the injured worker is asked by the medical provider, employer, or managed care organization (MCO) to sign an initial workers’ compensation claim application (in Ohio, Form FROI-1), he/she must again take great care. The application must be completed accurately, contain a correct and full description of injury, and lists all body parts affected by the injury. It is unfortunate but true that some employers, MCOs, and medical providers will deliberately limit the information or include inaccurate information on the FROI-1. Their purpose is to reduce the scope and the cost of the claim.
Don’t be Intimidated into Signing
The injured worker should not be intimidated by the employer or medical provider and induced to sign an inaccurate application. The refusal to sign the application does not necessarily delay the filing of the claim. In Ohio claims, the employer or medical provider can file the initial application (form FROI-1) without the injured workers’ signature. In such cases the injured worker will have the opportunity later to correct or clarify the FROI-1. Moreover, and more importantly, the injured worker will avoid signing an incorrect application.
Be Careful of Preexisting Conditions
Sometimes the work injury is to a body part that was formerly injured or was previously (meaning prior to the date of injury) symptomatic and treated by a physician. In such cases, most employers will defend the claim by contending that the work incident did not cause a new injury. Rather, the employer’s argument is that the new “injury” is a continuation or perpetuation of the prior condition.
Therefore, in preexisting condition cases it is crucial that the injured worker explain to his/her medical providers from day one and in full detail the new and changed symptoms. He/she must relate the acute nature of the injury, and also the type and severity of trauma that was experienced at the time of injury.
Evidence of Substantial Aggravation
In Ohio, if a work injury aggravates a preexisting condition, the injured worker must present medical evidence that the aggravation was a “substantial aggravation of the preexisting condition.” The issue of “substantial aggravation” is a legal determination by the BWC and Industrial Commission Hearing Officers. Even so, this issue is largely a medical assessment that must be based not only upon the history of injury, but upon objective clinical findings and test results.
Accordingly, an accurate and descriptive initial work injury history will lessen the likelihood of problems caused by the existence of preexisting conditions. See my prior article on preexisting conditions.
Be Careful of Intervening/Superseding Injuries
After a claim is approved and compensation and/or medical benefits are being paid, the claim can nevertheless be defeated and benefits terminated if there is an intervening and superseding injury to the same body parts covered by the workers’ compensation claim.
Work vs. Non-Work Superseding Injuries
If the superseding injury occurs at work, then it might generate a new workers’ compensation claim that supersedes and eliminates the prior claim. Also, if the superseding injury occurs elsewhere, such as in a motor vehicle accident or slip and fall at home, etc., then all medical treatment for the new injury and periods of disability from the new injury will not be covered by the prior workers’ compensation claim.
Standard of Proof for Superseding Injuries – Avoiding Over-payments
If payments for the new injury are made under the workers’ compensation claim coverage, over-payments might be generated. For a new injury to a previously allowed body part to be a superseding injury that eliminates the prior workers’ compensation coverage, one would believe that the new injury must be an entirely new injury or a substantial aggravation of the allowed conditions, as discussed above. As an attorney representing injured workers, I make the “substantial aggravation” argument often when defending against the superseding injury allegation.
Unfortunately, it has been my experience that the BWC and Industrial Commission Hearing Officers use a double standard to the detriment of the injured worker. Hearing officers typically do not require a “substantial aggravation” for an intervening injury to be considered a superseding injury that eliminates the workers’ compensation coverage. Consequently, I have found much inconsistency in the determination of whether an intervening and superseding injury has occurred.
Be Aware of the Risk of Seeking Treatment
Keeping the foregoing in mind, if an injured worker sustains a new injury to a body part covered by an allowed workers’ compensation claim, he/she must be aware of the risk of seeking treatment. If treatment is sought, he/she also must be aware of the risk of over-stating the severity of the injury.
If the new injury is significant and does seriously affect the workers’ compensation allowed conditions, then the new injury should be fully reported (not concealed). The medical bills or compensation requests should not be submitted to the workers’ compensation claim or covered by the workers’ compensation claim. Moreover, the deliberate and active concealment of a significant new injury might generate an allegation of fraud and will most likely create an over-payment of workers’ compensation benefits.
Again, the very first history of injury provided to a medical provider is often central to the issue of intervening and superseding injury. For example, if an allowed knee injury causes the knee to give out and causes the injured worker to fall and sustain a fractured arm, this would be a flow-through injury caused by the allowed conditions. This injury is not a superseding injury. However, if the injured worker is lifting something heavy or trips on something causing the knee to give out resulting in new injuries, then this is probably a superseding injury. Therefore, an accurate work injury history contained in the injured workers’ medical chart in such a situation is central to making a correct determination.
Never Exaggerate or Fake Symptoms
One Final Warning – Exaggerating or Faking Symptoms. The injured worker must never exaggerate or fake symptoms during a physical examination or when relating his/her work injury history. This is dishonest and wrong. In addition, a skilled examining physician conducts range of motion tests and other physical examination tests, some of which are designed specifically to determine the validity of the examination (meaning whether symptoms are being faked or exaggerated). This physician can easily identify exaggeration of symptoms. A notation in an injured worker’s chart that he/she is exaggerating symptoms will create credibility issues and might irreparably damage the injured worker’s case. This is particularly true if such notation is made by the injured worker’s physician rather than by an employer’s physician.