Prior Medical Records are Critical for Workers Comp Claim Defense

When a worker is injured, there is no way to tell of the past medical injury. Ask if there is a prior injury history to this specific body part, but whether this person is honest or not is really the question. This can change if the worker has a workers comp history of prior injury to the back or shoulder. For example, if the current injury is to the back or shoulder, the injured party is not going to share a great deal about any other past medical issue.



Being able to locate prior medical treatment records for the current injury in question is extremely important. In fact, this can affect the overall compensability of the claim. Typically the common cause of a delay in accepting or denying a workers comp claim will have do to with the adjuster trying to locate past medical records. Here are some tips to try to speed up the process. (WCxKit)



  1. Do a pre-employment physical


If the work is medium to heavy in nature, it is very important to screen the new hires with a pre-employment physical. Using a qualified physician, educated in the work duties is also essential. Upon examination, the physician will be able to determine if this worker is able to do this specific job day in and day out. The physician also looks for prior surgical scars that can indicate a prior injury needing surgical repair. That alone can save the worker from being exposed to future injury at the workplace. Safety is the most important thing to provide the workers, and the last thing to do is place them in a job they cannot do. With a current slow economy, some workers have been out of work for several months, leading to a general deconditioning. These workers will not be volunteering any information  that they cannot do the job they were hired for, so protect the human capital investment with a pre-employment physical.



  1. Have the new worker complete a medical history sheet before being placed in a specific job


Many employers keep a medical history sheet in the workers personnel files, containing primary doctor contact info, along with a sheet the worker completed listing any prior surgeries or injuries. Again whether or not workers are honest is up to the workers. This is only depending on circumstances. But if a shoulder injury occurs and the adjuster finds out there was a prior shoulder injury before the employment, and the worker did not indicate this on the medical history sheet,  try and use this to defend having to pick up the claim.



  1. Be sure the adjusters on the account send out a request for a signed medical release


One of the reasons the compensability is delayed on a new workers comp claim is due to the adjuster trying to locate prior medical records. If an ISO search is done and it shows the worker had a prior auto accident or workers comp claim, the adjuster should be contacting the carrier for information on the claim. Most carriers will not volunteer this information without a signed release. Also if the adjuster tries to obtain past medical records, most providers will not send this information without a signed release, thanks to HIPPA privacy laws.


It is pretty standard these days when a new injury occurs involving lost time from work, a request for a medical release, along with the contact letter is sent to the claimant at the start of the claim. The employer cannot force the claimant to sign, but non-compliance is not going to help in the long run and may only bolster the fact there is something in the medical past being hidden.



  1.  If past medical records are located, do an IME or peer review for compensability


Should past medical records be found relating to the current injury, generally an adjuster cannot make the causal relation decision on the compensability of the claim. This will have to be done with an IME or with a peer review by a physician. When completing this report, be sure to have as many of the past medical records as possible, along with the facts of the past prior injury. This will ensure that the decision the IME doctor makes is the correct one when it comes to the compensability of the claim. Also be sure to choose the correct physician specialty for making this decision. Orthopedic surgeons or neurosurgeons are the most often chosen specialties for these scenarios. Draft a comprehensive cover letter, and give the doctor direct questions to answer about how this current injury can relate to the work, and not to anything prior.



  1. Use an outside vendor to help locate medical history issues


If all else fails at a dead end, consider using an outside vendor to do sweeps for medical records. A pharmacy sweep will show which doctor prescribed the medicine, and that is where to send the signed medical release looking for past records. If the worker was prescribed an opiate drug in the past, consider that a red flag for a decently serious injury.


The same is true for a MRI sweep. If a worker has had past MRIs on the back or neck, they must have sustained a serious injury for needing that type of test to be completed. Hospital sweeps can also be done, to see if the worker had any treatment in ER department due to an injury either inside or out of the workplace. (WCxKit)




The importance of past medical records cannot be ignored. ISO searches and medical sweeps should be done on all claims deemed to be questionable, or on all claims in general that will require surgery or extended lost time away from work. Often times hidden in these medical records are a key to denying a claim that is not the responsibility to cover in the first place. So make it a standard part of the claims practice, and put the time in needed to do a proper medical background investigation. The end result could save tens of thousands of dollars in claims expense.



Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%Contact:








SUBSCRIBE:  Workers Comp Resource Center Newsletter


Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.


©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact us at:


Unexpected Benefits From Government Regulation

Since WWII, many new programs, state and federal, regulating disability have been added to workers compensation. In some states, short term disability is required for most businesses. All have to comply with OSHA and ADA. Social Security Disability Benefits claims involve many employers, directly and indirectly.
With the laws have come statutes, rules and regulations – at times overlapping other laws or even contradicting them. The wealth of material that must be read to deal with interactions is enormous – and well worth reading. (WCxKit)
Many situations which are confounding if a solution is sought by staying within one law can be solved by searching the provisions of other laws. For example, obtaining an early independent medical examination shortly after an incident has been reported.
An independent medical examination under, say, New York compensation law must be done by the carrier in such a way as to comply with numerous requirements. Miss a single step and you must start all over – which makes the first exam unlikely in less than three to six months. Some states restrict the number of independent exams on a claim, resulting in hoarding opportunities for an exam until late in a claim.
But other laws, free from the oversight of a comp board, often require exams doc compliance. OSHA, in 29 CFR 1904.5, lists a variety of reported conditions that do not need to be listed on the OSHA Form 300. However, in order to comply, an independent medical exam would often be required, since only a medical professional, with access to prior records, could decide if an incident is one of the conditions subject to exclusion. 
In such cases, an employee could be required to attend an exam and, in addition, provide HIPAA releases for prior records. And, the exams are not subject to local work comp laws or oversight. The report of the exam can be used in a comp claim if proper discovery procedures are followed – and the exam does not count as a work comp exam. 
ADA can also be used for return to work examinations, again, with HIPAA releases. “Reasonable accommodation”, an ADA requirement, may often depend on the results of the exam. Again, the exam report can be used in the comp claim and the exam does not count as a comp IME.
Perhaps the most extreme example of expanding opportunities for additional exams is found in the New York Disability Benefits Law, Sect 217, where an employer is given the right to have an employee receiving short-term disability benefits attend an examination once a week for the period of disability ( for the maximum of 26 weeks of benefits). Short-term disability benefits are often paid while a comp claim is being contested. In such cases, a number of examinations could be scheduled and none would count as a comp IME. (WCxKit)
These are but a few of the examples of how the myriads of laws already in force can, with some searching, provide new solutions to old problems. Searing outside the comp law is truly searching “out of the box”.

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. Attorney Ronca can be reached at 631-722-2100.
SUBSCRIBE TO:    Workers Comp Resource Center Newsletter

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact

Using Medical Record Search Support Services at Onset of Workers Compensation Claims

In an interview with Attorney Ronca, I learned how medical record searches in NY became a part of their practice.  As I learn about interesting new services and arrangements for my clients and other employers to lower their costs, I like to mention these services, so I recently sat down with Attorney Ronca who filled me in about their specialized document search services.
In 1993, Theodore Ronca, Esq. and Diane Kinslow, Esq. expanded their workers’ compensation services to include specialized searches for records, principally medical records for use in second-injury fund claims. Initially, these searches began as part of the handling of claims for self-insured employers where it was more effective in terms of time and expense to have the lawyers appearing at hearings pursue the searches between hearings.
The searches, done by subpoenaing group medical plan records of payments, quickly produced material that would have been many times more effective if used in the claim from the onset. The sheer amount of material on prior conditions, as well as prior comp claims, disability claims and lawsuits, if used in the comp claim would alter the way in which claims were presented and would radically change medical testimony. A federal publication on “Permanent Disability in the Workplace” bore this out with a finding that one worker in three had a permanent significant medical disability. This was the very group most likely to experience extended disability following a compensation injury, according to Attorney Ronca.
He said, " Our documentation of prior impairments for second-injury fund quickly quintupled the number of C-250s each employer presented with a good chance of success. Other employers, carriers and third-party administrators (TPA) began to use the service. For new clients we did not handle the hearings, confining our service to supplying useful documents. For these clients we included a one-page written analysis, placed above the records, of the contents useful to the claims examiner and the outside counsel. This was so that information would not be lost or overlooked by having each new person review hundreds of pages of medical records."
The addition  of a condensed analysis by attorneys familiar with the nature of comp claims, legal issues and medical testimony brought many new benefits. Outside counsel could quickly present many new issues in a timely fashion, including apportionment with other claims, causal relationship and treatment for unrelated conditions, in addition to second-injury funds.
He said,  "We never proposed to offer advice on the handling of the claim, nor did we appear at hearings, take testimony or write appeals. Outside counsel, normally uneasy about another firm handling portions of a file, quickly came to accept us as an unseen resource greatly adding value to their own services."
Since most of their work was done by phone, letter and fax (internet recently added) they could handle claims anywhere in the state of New York from one office. With new Health Insurance Portability and Accountability Act (HIPAA) regulations requiring a release, and such releases now being universal in comp and negligence claims, they can handle searches in any state on a file they are not working as attorneys.
He says, "We are attorneys who happen to have acquired the skills necessary to perform searches. In New York, we occasionally are required to issue subpoenas, in which case we become attorneys on a claim for the limited purpose of issuing a subpoena. This means we can lawfully perform services intended to assist in claims in other states where we do not have to issue a subpoena."
As they have become known to claims units, they have been asked to secure every manner of document in addition to medical. Among these are pleadings in lawsuits, bankruptcy records, police records, medical records from foreign countries, records of UI claims, Social Security disability records, news stories regarding a party, military medical records, death certificates, birth certificates, records of discrimination claims, bank records and signed purchases of material showing undisclosed business activity.
He also emphasized, "We have learned to be discreet with personal information and hold material that could be personally embarrassing to a party, or deleterious to their relationships, until contacts are made with a claims unit and opposing counsel to ensure proper handling. Such records, if not essential, are kept by us and are not revealed unless all parties agree."
And, they seldom bill for services on an hourly basis, unless asked to do so. Instead, they have followed a “DRG” system. Services have a fixed price regardless of the time spent so that claims units do not have to wonder about the accuracy of itemization of times. The two services accounting for 95% of the work are: (a) location and retrieval of a document and, (b) analysis of a document received together with a written summary of the contents.
In nearly all cases, mailing charges, phone calls and subpoena fees are built into a single charge. That flat fee is divided into two parts:  a fee to locate and produce a set of records, usually starting with the group medical payment records, and secondly, at fee to analyze (including decoding of abbreviations used by many medical plans) and prepare a written report and mail the records.
Prior to mailing a subpoena or release they always speak to the people who will receive the release to make sure they understand what is being requested and see if there are any other matters that need to be resolved. These calls are built into the charge to locate and retrieve a document and do not result in additional expense. (workersxzcompxzkit)
They have been successful in having medical offices provide most sets of records for the subpoena fee. However,  some hospital and medical groups insist on charging a statutory charge per page for copying. They will pay these but if they exceed the normal subpoena fee must add them to their charges.
I hope you agree, this could be a very useful service.


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.

Podcast/Webcast: Claim Handling Strategies
Click Here:  Claim_Handling_Strategies/index.php 

Sign Up For the Newsletter

Buy Work Comp Insurance: Click Here: 

We accept articles about WC cost containment. Contact us at: Info@
WC Books:
TD Calculator:
WC Calculator:

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@

New York Companies Should Provide Prior Injury Detail in Initial Workers Comp Forms

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.


Try the WC Cost Calculator to show the REAL COST of work comp.
Look at WC 101 for the basics about workers comp.

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.

©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact


Professional Development Resource

Learn How to Reduce Workers Comp Costs 20% to 50%"Workers Compensation Management Program: Reduce Costs 20% to 50%"
Lower your workers compensation expense by using the
guidebook from Advisen and the Workers Comp Resource Center.
Perfect for promotional distribution by brokers and agents!
Learn More

Please don't print this Website

Unnecessary printing not only means unnecessary cost of paper and inks, but also avoidable environmental impact on producing and shipping these supplies. Reducing printing can make a small but a significant impact.

Instead use the PDF download option, provided on the page you tried to print.

Powered by "Unprintable Blog" for Wordpress -