What Can Be Done To Keep Workers From Falling Through The Cracks

Stanley Harrison* was an older longhair driver who hurt his back when he fell off his load while tarping in another state. He drove back to Oregon crippled with pain. Scans and MRI’s did not show any ruptured disc or anything doctors could attribute to the trauma. So, doctors would not say that his crippling pain was caused by the fall from the truck. Instead, they said it was caused by degenerative changes. He has received no Workers’ Compensation benefits whatsoever.

Larry Wadman bent over to pick up a board at work. He felt a twinge of pain in his lower back. Later, he bent again and the pain repeated. As he continued to work, the pain intensified so much that he needed his wife’s assistance to get out of the car when he gothome. Despite conservative treatment, the pain persisted and increased. He developed weakness and numbness in his legs, especially the left. An NIRI within 2 months of the work incident revealed no obvious objective neurologic deficits. Leg pain and numbness extending to his foot caused him to fall 3x a day, resulting in a fractured left arm. A new MRI on superior equipment revealed a physiologic basis for the leg complaints, but his doctor won’t say whether these findings were missed originally by less sensitive equipment or resulted from the passage of time. This worker lost his job. He is still unable to work 14 months later. He still faces the financial burden of his extensive medical treatment including therapy, epidural steroid injections, neurologic exams and diagnostic testings, treatment of his fractured arm and probably future back surgery.

Brad Wolford suffered a shoulder injury at work which Workers’ Comp accepted. Later, after Wolford’s preexisting ankylosing spondylitis was discovered, all further benefits for medical treatment, lost time, etc. were cut off, even though he is still unable to work due to shoulder problems.

Stories such as these do not have happy endings. These workers were not protected by any other “social safety net”: they went from working hard for a regular paycheck to no income whatsoever to pay the bills that kept coming – not to mention the medical bills. These cases alone have resulted in depleted savings, bankruptcy, divorce, repeated psychiatric commitments for massive depression and problems with drunk driving.

Stories like these underscore the importance of the 1997 decision in the Nehl case, reported in Vol. 6 of this MEDICAIL-LEGAL JOURNAL concerning “rnajor cause.” That decision drove home the point that when a work injury has combined with a pre-existing condition, the key question is what was the major cause of the worker’s need for treatment and disability, NOT the major cause of the worker’s overall combined condition.

In other words, if you as a doctor can say that the major reason this patient now needs treatment and is unable to work is due to that work incident or repeated work exposure (after taking into account the causal role of any pre-existing condition which the work injury or exposure “combined with”), then that patient is entitled to time-loss benefits and medical benefits.

The Oregon Court of Appeals very explicitly pointed out that the law does NOT call for an analysis of the relative degrees of cause, as between work and pre-existing, of the “combined condition.” So, a medical opinion should NOT focus on the condition of the lower back and compare, say, the causal role of a preexisting condition to that of a claimed injury in creating that condition.

Rather, the medical opinion should focus on, “What is the main reason this worker now needs treatment?” and “What is the main reason why this worker cannot now work (has a disability)?” considering the causal role of the claimed injury (or work exposure) and that of any preexisting condition, 1) which the work injury/exposure actually combined with; AND 2) which had a causal role in the need for treatment and disability.

Please don’t get me wrong. I am not criticizing any doctors or casting blame for the predicaments of the workers described above. Obviously, I disagree with the denials these injured workers have received or I would not be representing them.

What I am saying is this: doctors who focus their opinions on the legal issue may help avoid tragedies such as these.

What doctors can do to expedite the right decision in their patient’s claims where the issue involves causation and a pre-existing condition:

1. Remember the legal question: What is the major cause of the need for treatment and/or disability?

2. Explain the reasons for your opinion on causation. Judges are no longer following simple “yes” or “no” answers, even from treating doctors -especially if another doctor has a different opinion and has explained his or her answer.

3. Attribute approximate percentages of cause to work and each other potential cause.

4. Even if you receive a “check-the-box” letter from an attorney: explain your answers and give percentages.

If a worker is disabled by pain which has its physiological basis in a work event or exposure, the worker should he compensated for the lost time, and the medical bills should be paid under Workers’ Comp. That is the purpose of the law.

* The names have been changed to protect the privacy of our clients. The events actually happened to real people.

This article was prepared by Robert L. Chapman