Wednesday, July 10, 2013

Injury Description Problems in Workers Compensation


One of the hot topics related to Pennsylvania workers’ compensation benefits is the official description of injury in a work-related accident.  My clients often ask me why the workers’ compensation insurance carrier is not paying for treatment related to a specific body part.  Insurance carriers will enumerate specific parts of the body as the “accepted workers’ compensation injury,” and other injured parts of the body are left out.  A concrete example may be useful to demonstrate some of the problems associated with an incorrect injury description. 

An employee, who in the workers’ compensation world is called a “claimant,” is injured on the job while driving a company vehicle.  After the accident the claimant ends up in the hospital.  The claimant’s primary complaint is his knee which will require immediate surgery.  The claimant undergoes surgery to repair a torn meniscus in his knee and begins physical therapy related to that injury.  A few days later he receives documentation from the insurance company which describes his injury as a “torn meniscus in right knee.”  However, upon arrival at the hospital, the claimant had also complained to the doctor that his lower back was also quite painful.  The ER doctor told him that they need to take care of his knee and then they would deal with the back.  However, when the workers’ compensation insurance company receives the medical reports from the hospital the only injury which is mentioned is the badly torn meniscus.  There may or may not be any mention of low back pain complaints in the doctor’s notes.  The claimant undergoes physical therapy for a number of weeks and during this time continually complains that his low back is painful.  However, since the primary injury from the accident was the knee injury, little or no treatment is rendered regarding the claimant’s lower back.  As the claimant’s knee begins to heal the lower back injury becomes the primary problem.  However, there is now a new problem for the claimant.  The insurance company has never officially accepted the low back as a workers compensation injury.  Thus, the insurance carrier refuses to pay for any treatment related to the lower back.

A few months after the injury has occurred, the claimant’s knee has healed to the point where he may return to work, but his back has not improved at all.  The employer is now looking to offer the claimant his pre-injury job and doesn’t understand why the claimant is refusing to return to work.  The insurance carrier is also under the same impression that the knee was the only problem.  Meanwhile, the lower back injury has become so bad that of the claimant feels that he could not return to work because of that injury alone.  The problem is, at this point, there is no lower back injury that has been accepted by the workers’ compensation insurance carrier. Thus, the claimant is stuck with an insurance carrier who does not want to pay for any treatment, and an employer who is wondering why he is not returning to work since he has now recovered from his knee injury.

The above situation, or something similar, happens quite often.  The claimant has no choice but to engage an attorney to file a petition to amend the injury description to include the lower back or other missing body part.  Such a petition is filed with the Bureau of Workers’ Compensation and will likely require long and expensive litigation, which can often take up to a year.  This litigation has its drawbacks for both the employer and the claimant.

Employers would be advised to make sure that that if their injured workers are reporting multiple injuries, all of those injuries should be investigated to the fullest extent.  If they are not, the above situation will probably occur.  While it is usually in the interest of the insurance company to make sure that it accepts as few injuries as possible (and, thus, pay for less treatment), the employer is left with a very large legal bill when the claimant is forced to litigate the issue of what injuries should have been included with his original accident.

Further, since the insurance company in the above example did not accept all of the proper work injuries the claim tends to go on considerably longer than it may have if the proper injuries had been accepted and treated.  For example, in the above situation, had the insurance company accepted a lower back injury, and the claimant had received injections and physical therapy related to his low back, the claimant may have returned to work inside of a few months after the work injury.  Instead, the claimant’s treatment was delayed by the carrier’s failure to accept the proper injury, and the carrier, on behalf of the employer, must typically pay the claimant wage loss benefits during the time that the injury description is litigated.  This causes the claim to be much more expensive for the carrier than it may have had it accepted up the proper injury from the beginning.

For the claimant whose injury is now not properly accepted, he may be unable to receive the proper treatment to his low back.  Thus, his injury may even get worse, and cause him to be out of work even longer.  The insurance carrier is only responsible for paying for injuries that are accepted, and thus, when the injury description is wrong, the claimant may be on his own to get the proper treatment.  In some cases, penalties and unreasonable contest attorney’s fees may be awarded against insurance companies which improperly investigate claims or fail to accept injury descriptions correctly.

It is clear that improper injury descriptions can cause workers’ comp claims in Pennsylvania to go on longer and become more expensive for all of the parties involved.  Employers, insurance carriers and injured workers should make sure that any and all injuries are investigated and documented from the very beginning, if at all possible.  Claimants, especially, should contact experienced counsel early on to ensure that their rights are properly protected.

 

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