The value of searching for undisclosed prior injuries in many classes of workers compensation claims was shown in a recent decision, “Poli v. Taconic Correctional Facility” 4/21/11.
A federal report in the 1980s stated roughly one-third of all workers have a prior permanent impairment, the group most likely to pursue a workers compensation claim for permanent partial disability (PPD), thus making concealed, or at least unreported, priors injuries more common than we realize. (WCxKit)
Searches were done in New York in the past for such conditions in support of 15-8 reimbursements. Since WCL Sect 114-a was not yet enacted little was done about concealed conditions, because when they were uncovered, they led to 15-8 relief.
With the closing of Sect 15-8(d) many claim units abandoned regular searches for prior injuries. However, more is gained from the “Poli” decision than realized than from the old Second Injury Fund relief. In “Poli” all future loss wage payments are forfeited when the prior injury is discovered.
Most concealed priors are discovered by accident, not a systematic search. A remark by a supervisor about prior lost time or a co-worker mentioning prior complaints may lead to further inquiry. Unfortunately most claims miss prior injuries.
Should an investigation be done on every claim? No. However, it’s a good idea to investigate claims having one or more of the following characteristics:
- Claims for continuing back disability with lost time exceeding four months.
- Claims which are unwitnessed.
- Claims by workers over age 45.
- Claims by workers with a history of several employers in the past 10 years.
- Claims for heart attacks or COPD.
A search for a good prior medical history need not rely on a worker’s statement. Obtaining charges on a group medical plan, even without the actual medical records, quickly discloses significant or chronic conditions the treating doctor ought to mention on the compensation claim form.
A search need not lead to disqualification of future benefits in order to be successful. Information is usually discovered which won’t meet all the criteria for violation of New York WCL Sect. 114-a, but which will be useful for apportionment or mutually agreed settlement at a substantially reduced rate. Lawyers are mindful that relying entirely on a client’s statements can lead to “can-of-worms” trials and appeals. Rather than changing the outcome of a trial, discovering prior treatment was more extensive than the attorney was led to believe, only leads to more amenable reduced settlements.
A carrier is not likely to receive requests for investigations from smaller employers. However, larger employers, especially those in construction, transportation and other heavy industries, are a logical partners for a cost-reduction effort. (WCxKit)
In addition, employers receive many other benefits from assisting or initiating prior injury searches. Inevitably, these searches benefit many worthy claims, leading to fewer unnecessary hearings, also resulting in cost-containment.
Author Attorney Theodore Ronca is a practicing lawyer from Aquebogue, New York. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans, and subrogation for over 30 years. Mr. Ronca has 21 years experience in searching and retrieving medical records and many other types of documents for defense of workers compensation claims. Contact Attorney Ronca at 631-722-2100 or medsearch7@optonline.net. Ted’s new program (which he’s been doing for many years) OSHA/C-2 Avoiding Disaster by Early Defense, is excellent coaching for NY employers with work comp problems).
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