Workers' Compensation for Medical Providers
Donna Civitello
Carter & Civitello
One Bradley Road, Suite 305
Woodbridge, Connecticut 06525
Phone: 203-389-7000
Fax-203-389-7004
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Basics:
-Because of the nature of your practice in this clinic, most claims you will see here will be contested, at least initially.
-The workers’ compensation system does not provide timely resolution of disputed issues. Questions of whether a respondent is liable for a particular injury or condition can take years to litigate. In accepted claims, some respondents deny requests for medical treatment, testing and medications ordered by the treating or consulting physician, without any medical support for the denial, and with impunity.
-An accurate recording of the patient’s history and complaints is imperative, as commissioners will almost always credit what your notes say over the patient’s testimony.
3 types of injury recognized by Connecticut law:
Accidental-one-time event
e.g. breaking an arm
e.g. in context of this clinic- release of toxic gas; CO exposure; caustic chemical burn
Repetitive trauma-accrued insults or damage over time
can be musculoskeletal-e.g. CTS, spinal degeneration
can be by airborne exposure-e.g. isocyanates
other examples: hearing loss or dermatitis from continued use of product
Occupational disease- a disease caused by workplace exposures
e.g. asbestos, silicosis
can also be respiratory diseases caused by repetitive exposures, such as to asthmatogens or isocyanates
In terms of treatment, these distinctions are not that important. However, the distinctions are legally crucial in order to determine whether a workers’ compensation claim is time-barred because it was filed too late.
Filing deadlines: One year from the accident, or, in repetitive trauma claims, one year from the last day of exposure to the damaging condition or agent. In occupational disease claims, three years from the date the claimant knows or should have known that he or she had an occupational disease.
Lawyers may focus on these distinctions in asking you for reports or taking your depositions, in order to prove whether a claim was timely or barred as untimely. Often, by the time a patient gets to this clinic, considerable time may have passed before any physician connected workplace factors with the symptoms.
Patients often think that filing a First Report of Injury, or providing a medical report, is enough to file a workers’ compensation claim, but these are not sufficient to protect a claim against being time-barred. Payment for a clinic visit by health insurance also does not count as filing a claim. Patients should be advised to contact the commission immediately to file a claim where the employer is not paying for the visit under its workers’ compensation insurance.
Medical causation vs. legal causation
Scientific causation-p value 5, 95% certainty
Legal causation-more likely than not-more than 50 % likely
It’s ok to base your opinions on clinical or anecdotal evidence
You don’t need epidemiological studies for proof if they are not available
Legal issues arise when there is more than one cause of a condition or symptoms:
If 2 or more occupational exposures contribute to cause condition
Apportion between carriers/employers
What percentage attributable to each exposure
If have occupational exposure plus non-occupational factor(s)
e.g. asbestos disease and smoking
e.g. musculoskeletal repetitive trauma with age-related changes
the appropriate legal analysis is:
Is the workplace exposure/ or accident a “substantial” or “significant” contributing factor to the patient’s complaints?
Meaning of “substantial” or “significant” contributing factor-not well-defined in the law, but cases have held that it can be as little as 5%.
What is commonly thought of as “but for causation” is not the definitive inquiry for causation in workers’ compensation. Many respondents’ lawyers will ask “would this have happened anyway, despite the workplace exposure/ injury?” But the law in Connecticut is that the workplace exposure/injury is compensable if
-it accelerated something which would have happened eventually, or
-it caused a previously quiescent condition to become symptomatic, or
-it caused previous non-disabling symptoms to become disabling.
The classic example from Connecticut case law is where a pre-existing degenerative disease of the hip becomes symptomatic and needs medical treatment as the result of a workplace trauma to the hip. In such cases, even where the claimant might have required a hip replacement at some point in the future because of the osteoarthritis alone, because the workplace injury accelerated the need for surgery, the employer must pay for the operation and resulting disability.
What is a pre-existing condition?
Connecticut law defines a pre-existing condition as a physical or mental condition, impairment or pre-disposition, which existed prior to the date of injury. A pre-existing condition does not have to have existed prior to the date of employment.
Although it can be, a pre-existing condition doesn’t have to be, symptomatic, or even diagnosed prior to the workplace injury, in order for it to be a pre-existing condition under the law. Neither does a pre-existing condition have to have been disabling in any sense prior to the time of injury.
The law was and still is:
An employer takes a worker as he or she was prior to the workplace injury or exposure. If the workplace exposure/ injury:
Makes a pre-existing condition worse,
Or causes it to become symptomatic when it previously was quiescent,
Or causes it to be more disabling than it was prior to the injury or exposure,
Then the pre-existing condition is fully compensable along with the workplace injury.
This means that the employer pays medical, wage loss and permanent impairment benefits for combined effects of the pre-existing condition and the workplace injury.
Deschenes v. Transco did not change the law with respect to pre-existing conditions. It only announced that combined impairment from “concurrently developing conditions” will be treated differently from combined impairment from pre-existing and workplace conditions. Unfortunately, the court did not define “concurrently developing conditions.”
What is a concurrently developing condition?
The court in Deschenes didn’t bother to define this term, probably because it couldn’t. If we reconcile almost a century of workers’ compensation law with Deschenes, we must conclude that a concurrently developing condition should be considered to be a disease or pathology which develops after the date of injury.
Permanent Impairment Ratings
You should include the impairment from any relevant pre-existing condition in your rating.
Deschenes applies only to occupational diseases. Under Deschenes, where there is no pre-existing condition, but rather an occupational disease developing concurrently with a non-occupational disease, you will be asked to divide the combined impairment into occupational and non-occupational components.
Doctors can choose whether to use the AMA Guides or any other method of evaluating permanent impairment. Commissioners won’t accept whole person ratings. If using the AMA Guides, you should convert whole person ratings to regional ratings.
Lungs should receive special consideration in assigning ratings, because of anomalies in the statute. The workers’ compensation act bases severe impairment of the whole person upon a standard of 520 weeks. For example, complete loss of use of the back is payable at 520 weeks of benefits; complete loss of use of the heart is 520 weeks of benefits, and compete loss of use of the brain is 520 weeks. (these don’t apply to deaths.) A ten percent loss of use of the back is thus 52 weeks. For historical reasons, lungs are assigned fewer weeks-117 each, for a total of 234 total weeks for complete loss of use of both lungs. Since lungs are just as important to whole person function as the heart or the brain or the back, you should keep this inequity in mind. The result is that a patient will receive more for 10% loss of use of the back than he or she would for 20% loss of lung function. The AMA Guides do not have a conversion formula for deriving a regional rating from a whole person rating for the lungs.