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Workers’ Aggravation Claims Must Follow Letter Of Law

A worker who has suffered a compensable injury is entitled to additional compensations for worsened conditions which result from the original injury. This is called a “Claim for Aggravation.”

However, an injured worker who has suffered a worsening of his injury runs the risk of having his aggravation claim ignored if the required written medical evidence does not meet the specific requirements in the latest revision to the Workers’ Compensation law.

The worsened condition must be established by medical evidence of an actual worsening of the compensable condition supported by objective findings.

The major cause of the worsening must be a work injury for the worsening to be compensable.

The revised law (ORS 656.273) requires the filing of the proper form (“Notice of Claim for Aggravation…” Form # 2837) signed by the worker (or his representative). The form must also be signed by the physician and submitted by the physician to the insurer within five days of receipt. Also, this form must be accompanied by the attending physician’s report establishing by proper written medical evidence that the worker has suffered a worsened condition.

To constitute proper written medical evidence, the attending physician’s report must meet two criteria:

1. the evidence must establish that the worsened condition suffered was attributable to the compensable injury;

2. the medical evidence of the worsened condition must be supported by objective findings.

We stress these requirements because insurance companies have taken the position that if all requirements have not been met when they receive a form, that they may treat it as if a claim has not even been filed!

Therefore, a doctor may fill out and sign the proper form and submit written evidence in support of the claim, but the insurer may ignore it. So, for workers to have a fair shot at an aggravation claim, their doctors must follow the process exactly.

Traditionally, doctors fill out and sign the form, attach their chart notes and send it in. Unfortunately, chart notes do not always recite objective findings in support of the worsening. And chart notes usually do not attribute the worsened condition to the compensable injury.

If you believe that your patient, who had an existing Workers’ Compensation injury and it is appropriate to file an aggravation claim, we recommend the following:

1. Be sure you have the proper form (2837) filled out completely and signed (your patient should complete and sign the top half; you fill out and sign the bottom part);

2. Attach a written statement explaining what objective findings exist to support a worsening;

3. Your objective findings should describe a comparison between the patient’s condition now and how it was when the patient’s WC claim was last closed, describing how it has worsened.

If no objective evidence exists showing a worsening since the injury claim last closed, filing for an aggravation is a waste of time. A palliative care request may be appropriate.

Ask yourself: Is the patient really worse? (Less able to work? Needing more treatment in a way which was not expected when the claim last closed?) Is there objective evidence of this? Is this worsening a result of the work injury?

This has placed the doctor in a critical position. Once your patient has completed and signed the aggravation form, he/she expects to receive time loss compensation. When this does not happen, you have an unhappy patient. Hopefully, this article will help preclude this unfortunate and unintended result.

If you or your staff have any questions concerning the forms and procedures for filing aggravation claims, please feel free to call our office and ask for Teresa.

This article was prepared by Robert F. Webber.

Posted in: Workers' Compensation Lawyer Articles