As I often tell my workers’ compensation (“WC”) clients, whether they are claimants or employers, their cases will be determined primarily by the veracity of the medical evidence. The intent of the WC system is to ensure injured workers get the medical care they need to return to work (“RTW”), but let’s face it. That is not how it is often used. Not all claimants want to RTW, and doctors have a difficult time telling when their patients are withholding information, feigning limitations, or exaggerating their pain–even knowing that an estimated 38% of patients lie to their doctors. Likewise, examining physicians can be overly sympathetic to claimants’ tales of woe, or they can be hyper-skeptical, believing their role is to issue a “no disability” report. Who cares, as long as everyone is getting paid. Right?
WRONG. Failure of any doctor to perform a complete and thorough examination is arguably a violation of the Hippocratic Oath. You might please the claimant and the attorney who referred him or her to you for treatment, by helping them “stretch the truth” or tell “white lies” about the extent of the causally-related injuries or disability, but you might also expose the claimant to the risks of misdiagnosis, depression, isolation, fraud, and abuse. If you’re an examining physician, you probably aren’t securing yourself future assignments, when you rush through an examination or report, assuming you simply need to give opinions least favorable to the claimant. The judges and the parties want well-reasoned diagnoses and prognoses from those with the education, training, and experience we do not have. Here’s how to give us what we need and protect your reputation, too:
- Be objective and thorough. Many humans hide information that embarrasses them or that might cause them harm, such as the loss of benefits. They also reframe facts in ways that make them look good or victimized, depending on which will get them the most leverage in a given moment. When you take the time to look at the totality of circumstances, including the discrepancies in facts and conflicting interests of the various parties, you can often see clues that will help you maximize the claimant’s medical improvement, as well as emotional, financial, and even spiritual improvement.
- Don’t assume the patient knows what is best under the unique facts and circumstances of his or her diagnoses. Most people tend to think in the short-term, especially after an injury or illness. An opinion helping a claimant retire early might seem like a good idea in a moment, but it might become disruptive and depressing to be removed from a fundamental source of socializing for years or decades. You are the one who must determine whether a RTW is medically (and psychologically) advised. Not the other way around. Similarly, the employer or insurance carrier paying your bills lacks the authority to guide your opinion.
- Answer specific questions with specificity. When examining the injured worker as your patient, the C-4 series of forms will guide you through the elements necessary to prove the case. Yet many doctors delegate the form completion to assistants who give little thought to the individual patients. Forms are filed incompletely with vague assertions that fail to give the parties sufficient information on which to base decisions. This leads to unnecessary litigation, much as rushing through an independent medical examination (“IME”) without a complete understanding of the disputed issues does.
- Ask the claimant-patient to clarify assertions or complaints when you don’t fully understand them. You know the cliché about assumptions…
- Don’t rely solely on Intake Sheets, the claimant’s assertions, the IME Request, your records review, or any one category of evidence. Like the medical case, the legal case is comprised of many parts, and the parties need you to help us resolve disputes regarding the sites or conditions that directly resulted from the claimant’s work, the treatment required for a RTW (where possible), how long the employer should expect to be without the employee, and what types of work he or she might be able to do if a RTW in the same job is not medically advisable.
- Request any records you expected to see but were not produced. Although you are insulated from medical malpractice when you treat or examine WC claimants, you do not want to cause harm–or violate your oath–by misdiagnosing conditions due to misinformation. In law, we have a “best evidence rule” that indicates items, such as magnetic resonance imaging (“MRI”) films, original documents, and first-hand accounts tend to be more reliable than reports discussing films, a summary or copy of a document, or other second-hand sources.
- Use your common sense, as well as your education, training and experience. If you don’t have first-hand knowledge of an industry, don’t pretend that you do. I once cross-examined a doctor who testified that the trays at a fast-food restaurant were very heavy for the claimant-patient, especially when stacked with dishes, glassware, and silverware! You will be far more helpful, if you either research the industry or include disclaimers, such as “based on my understanding of the industry…” or “assuming that the claimant’s account of the accident and job duties are accurate…” Of course, if you don’t think the history and the complaints are consistent, you can say so–or investigate further, to ensure you do no harm.
- Don’t take requests for clarification or testimony personally. The parties are trying to make fair decisions on fact-specific matters, and we’re not really sure what the facts are, since the claimant is often the only one who witnessed the accident. If you feel you have to pick a side, choose objective medical science.
NOTE: This post is a general overview of how medical evidence can be useful in workers’ compensation claims. It is not legal advice, and there is certainly no guarantee that any of the actions detailed above will generate a similar or specific result. Past success is never a guarantee of a future outcome. If you require information or advice applied to your unique situation, please make an appointment to discuss it with an attorney. Don’t rely solely on what you read on the Internet.