The C-2 Form (Employers Report of Injury) in New York should be filled out completely with as much detail as possible, according to Attorney Theodore Ronca. While this form can be supplemented with information the employer needs on their own Injury Treatment Form, the C-2 should be filled out as completely as possible to increase the employer’s chances of prevailing if the injury is not compensable or apportion-able. The employer can document all known conditions on a “See Attached” memo to the C-2. Attorneys for employers can subpoena records of prior injuries.
Although treating doctors should make reasonable inquiries about past medical history and carriers should make reasonable inquiry, it is much faster and more effective to have the employer’s Medical Advisor or the employer’s attorney to make these requests.
Some doctors’ offices may object to providing medical records material based on HIPAA privacy regulations, however, there is an exemption in these regulations for occupational injuries.
The old saying of “taking the claimant as is” is quite false, but nonetheless many claims examiners don’t look for prior conditions. This is one key activity with which an in-house Medical Advisor can be helpful. Often an MD can determine if there is a likelihood that a prior condition exists, then medical records can be subpoenaed.
7 parties who can subpoena records:
1- a carrier
2- an employer
3- a short-term disability carrier
4- a long-term disability carrier
5- a spouse seeking support liens
6- an estate with interests in awards
7- attorneys for agencies holding concurrent proceedings (in-state and out-of-state regarding the same accident or occupational disease.
Records of prior injuries are necessary for several reasons:
1- you may be able to apportion with prior conditions in several ways:
a) between a prior workers comp claim
b) between a prior negligence claim
c) between a prior condition that worsens AFTER the comp claim where the worsening was not due to the comp claim.
d) Also, subsequent conditions can reduce comp liability.
Out-of-state Records: Get out-of-state records as well. Don’t be deterred if the records are out of state and thus not as easily available. In NY, out-of-state records are obtained by “letters rogatory”, a process named after the Latin word “rogere” which means “to order.” Basically, the NY court politely orders another state to assist in obtaining records.
Other States: This concept may apply to many other states in addition to NY, however, you must consult with legal counsel in those states to find out.
Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. 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. Attorney Ronca can be reached at 631-722-2100.
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Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
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