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Sunday, October 12, 2008
Extent Of Injury Disputes
I received the following question via email from a visitor to this site: What are some options when it
appears the workers comp doctor has
purposely not recorded injuries, beginning with the first appt. He recorded some and left others out. How can
one get a proper ruling without the facts?
This person has seen the one of the bad sides of the Texas workers compensation
system. Most of the time, when an employee gets hurt at work, the employer will send them to the "company"
doctor. The company doctor was carefully selected, not for the benefit of the employees, but for the benefit of the
employer. Very often, these doctors fail to record all of the patient's complaints. They underdiagnose the
condition.
Two scenarios usually play out from the deception of the company doctor, both leading to a dispute
by the employer's work comp insurance carrier. The first is that by failing to document a patient's complaints
to the neck, for instance, the work comp insurance carrier will later claim that because there were no initial complaints
to the neck, the neck was not injured in the event at work. The second is that because the company doctor only diagnosed
a muscle sprain or strain, when in fact the injury was much worse, like a herniated disc in the lumbar spine, the carrier
claims that they are only responsible for the pulled muscle, not for the bigger problem.
These types of disputes
are called extent of injury disputes in the Texas work comp system. They are very common disputes. Usually, the
injured worker will have to initiate dispute resolution (request a benefit review conference) in order to resolve the dispute.
That brings us to the question above: How can the claimant win in this situation?
First, make sure the doctors
record all of your complaints. It may be too late to fix what has already happened, but from here on, make sure your
complaints are noted. Beyond that, the evidence is what it is. It is what you do with that evidence that matters.
Think and recall everything about your first several visits to the doctor. Did you fill out any paperwork when
you first went in? Did it ask you to describe what happened and what your physical complaints are? Did you write
down that your neck hurt as well as your back? Obtaining this "intake" paperwork could be useful to show that
you did complain, but the doctor didn't write it down in his report.
There is one company doctor chain that
I have seen take this to the worst extreme. The patient's records did not mention any neck complaints at all, anywhere.
The carrier had disputed liability for the neck injury. Luckily, the patient remembered that the doctor had taken x-rays
of his neck on the very first visit. Although the medical report indicated low back x-rays, it never mentioned the neck
x-rays. Once we subpoenaed the x-rays, we were able to show the judge in that case exactly what had happened and how
the doctor had failed to honestly report the worker's injuries.
So, remembering what happened at the initial
doctor visits is important. But that will not always solve the dispute. It may be that there is no "smoking
gun" evidence like the x-rays mentioned above. But there are other things to look for. In a dispute over
whether the low back injury is just a sprain or involves a pinched nerve or something else more severe, you will often be
able to show that the exam findings at the first doctor visit are consistent with the more serious diagnosis. The MRI
findings were not available at the first visit, so the doctor obviously would not have known of the herniated disc.
Usually, the progression of symptoms will play out to show that the injury was obviously not as insignificant as the company
doctor made it out to be.
Try to recall if there was any report of the disputed injury other than to the company
doctor. For instance, did you fill out an accident report at work when the event occurred? Did you note
the neck complaints that are now being disputed? What about the initial report of injury paperwork that was filed
with the Division of Workers' Compensation? The employer files a first report of injury too, what does it say
the reported injuries were?
Even in the worst of circumstances, the injured worker's testimony can be enough to
support a judge's decision as to whether or not an injury was sustained.
There are lots of ways to handle
these disputes. It usually takes creativity. Unfortunately, creativity is often limited by personal
experience. If a person has no experience with a particular situation, the lack of knowledge will limit creativity because
that person does not understand all of the options. Extent of injury disputes are very important. If you
end up going to a benefit review conference to resolve such a dispute, make sure you hire an attorney to go with you. The
stakes are too high to rely on an ombudsman.
10:49 am cdt
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