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:








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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:


NEW YORK Why Employers Must Search for Concealed Prior Injuries in Workers Compensation Claims

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:


  1. Claims for continuing back disability with lost time exceeding four months.
  2. Claims which are unwitnessed.
  3. Claims by workers over age 45.
  4. Claims by workers with a history of several employers in the past 10 years.
  5. 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 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).

Our book: Manage Your Workers Compensation Program-Reduce Your Costs 20-50%




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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.


©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact


Use Prior Medical Records in Workers Compensation to Establish Health Baseline Prior to Occupational Injury

Reviewing medical records prior to the workplace injury is important to establish a baseline prior to an occupational injury.

Once there has been an injury
, look to see if there has been a pain free interval which can suggest that the current pain is the progression of underlying disease and not due to the specific workplace event. Dr. Dubin says this is particularly true with spinal stenosis. Getting functional capacity tests is also helpful.

When Dr. Dubin reviews
medical documentation he looks for lack of correlation between what the x-ray looks like and extent of disease, particularly with back and knee injuries. Misunderstandings about the significance of bulging discs, etc. is very important.

If your medical director
IS doing these things you are lucky. If not, you’ll need to teach them. You want this done PROACTIVELY, not after the claim has been accepted and paid.

Click on these links to try it for yourself.
WC Calculator:
TD Calculator:
WC 101:
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

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