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Many workers’ compensation cases involve unwitnessed orthopedic injuries. Consider a case where an employee alleges that he or she felt sharp back pain around 11 a.m. in aisle 4 of the store while stocking shelves. Suppose there is no security video. Suppose further the employer provides treatment under Section 15 without admitting liability but still questions the claim. How do adjusters and defense counsel investigate such a claim? The answer lies in a thorough review of all relevant treating medical records as well as any employee accident form.
That brings us to the next question: what exactly does one look for in a medical file or an employee accident form? There are a number of basic rules that apply to all cases involving unwitnessed accidents when it comes to assessing compensability and credibility.
First, look for inconsistencies on when the accident occurred and when the employee first felt pain. In New Jersey the first treatment is usually rendered by an occupational facility, often followed with physical therapy and often a referral to an orthopedic specialist. The starting point is always the very first medical record closest in time to the alleged incident. Follow the trail. Is the date of injury consistent in each record? Are there long gaps in time between the date of the alleged incident and the first treatment? Does the location of the pain remain consistent or do new injured bodily areas appear 45 days post injury? These are all important indicators in evaluating compensability and credibility.
The next step is to focus on the mechanism of injury itself. Again, start with the first date of treatment. Don’t focus on the ultimate diagnosis three months later. When a case is credible, the mechanism of injury is consistent. The most important document to read in regard to evaluating the mechanism of injury is the employee accident form. If the employer uses employee accident forms completed by the injured worker in his or her own handwriting, this is the most helpful document. All employers have First Report of Injury Forms, but these forms are far less helpful than employee accident forms. Why? Because first report forms are usually completed by someone like a supervisor who only knows what he or she has been told. The employee accident form has no potential for a “hearsay” objection. It is filled out by the injured worker close in time to the incident, so it stands to reason that the information will be the most accurate. By contrast, the first report form may not be filled out until weeks later.
The adjuster or defense lawyer should compare the description of the mechanism of injury on all forms and on all medical records. Does the version of the injury vary markedly over time or does it remain the same? If it remains the same, that helps make the claim credible. If the employee states initially that she slipped but did not fall and felt back and knee pain, but a month later states that she slipped and fell hard on her left side and back, that is a significant discrepancy. That fact alone may not win the case for the defense, but in conjunction with other facts, it may be pivotal. For a physician, slipping but not falling may make a huge difference in causation analysis.
Practitioners must remember that from a legal viewpoint there are claims which may not be compensable because they may not arise from work. That is why focusing on the precise mechanism of injury is critical. So if the first medical records says, “employee was just walking on a flat surface and felt knee pain,” that claim may be dismissed as not arising from work or as an idiopathic event. In New Jersey an accident requires an “unexpected event.” Walking on a flat surface is something we all do all day long at work and at home.
There are often questions in medical records put to the injured worker by the medical professional about the cause of the injury. A claim petition may be filed shortly after the alleged accident and may refer to a specific date of injury in the parking lot or in the store. But suppose the first medical record reads something like this: “Employee has had pain for a week. No trauma.” That would be inconsistent with the allegations on the claim petition and may well justify a denial.
Defense practitioners must identify the specific location where the incident took place or when the first pain was experienced. If the employee accident form reads, “Employee lifted a machine in the store and felt immediate back pain,” but the first medical record reads, “Employee awoke at home with sudden back pain this morning,” there is a difference here. The petitioner’s counsel may be able to reconcile the two statements or the two statements could point to a larger credibility issue. These are the kinds of details that the defense must consider.
Prior relevant medical records are hard to obtain in many states, but they often make a critical difference. Some states like New Jersey have no specific discovery rules for getting prior records, but most doctors and physical therapists do ask about prior relevant medical conditions. Example: “Have you ever had treatment to your left knee before this incident?” If the employee answers in the affirmative, those records need to be obtained. Judges will back that kind of discovery. If the MRI reads, “Compare to prior MRI in 2019,” then the prior MRI must be obtained in order for the physician to opine that the present knee pathology arises from work.
Sometimes the prior injury may have taken place 15 years ago and will have little relevance on the issue of compensability, but the records could still be relevant later for potential credits at the time of the award. In contrast, there are cases where the employer may discover that the injured worker has been treating for a non-work injury in the weeks just before the work injury. This is a big red flag. In that case, the reason for the employee’s pain may not be work activities at all but a continuation of a prior non-work injury.
It is worth highlighting one more point. This practitioner has found it invaluable to read the notes of the physical therapists. Too often practitioners focus heavily only on the notes and diagnoses of the orthopedic specialist. Those notes may be very good. However, bear in mind that the specialist generally sees the employee fewer times than the physical therapist. Another point to consider is that more and more doctors use electronic medical reports that carry forward the same initial history throughout the chart. Physical therapists spend a good deal of time with patients. In one of my cases the physical therapist noted, “Employee’s knee is much worse today. He was mountain climbing over the weekend and fell hard on his knee.” That was found to be a new accident that broke the chain of causation.
Remember this point: judges try to evaluate all the evidence and assess credibility of the injured employee, other lay witnesses, and medical witnesses. They too are looking for consistency from both the employee in his or her case and the employer in their case. Details matter to judges. There is no shaped mold that fits every workers’ compensation case. Defending cases is not like baking. But there is a logical process to use in studying every case. Unwitnessed accident cases can be very hard to defend, but a rigorous effort to obtain all relevant medical records and employee accident forms can make the difference between getting a win or a small Section 20 versus a substantial award.
John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at firstname.lastname@example.org.