How Aggravating!
My Claimant Was Already Hurt, So Why Should I Have to Pay?
By: Ann McElroy
At the heart of every Georgia workers’ compensation claim, there must be an injury or disease alleged to have occurred or been contracted at work, which results in the need for medical treatment. Pursuant to O.C.G.A. § 34-9-1(4), an “injury . . . shall include the aggravation of a preexisting condition by accident arising out of and in the course of employment, but only for so long as the aggravation of the preexisting condition continues to be the cause of the disability.” Based on that definition, the aggravation of preexisting medical conditions due to work-related injuries are compensable workers’ compensation claims. However, the workers’ compensation benefits, medical and/or indemnity, are only payable while the work-related “aggravation” is the basis for the disability of the claimant.
In the realm of workers’ compensation, we must take our employees in the condition they are when we hire them. Any preexisting injuries or diagnoses are part of their makeup. Therefore, if an employee does something at work which makes that prior back strain or lung condition worse, employers and their insurers can be held responsible for wage benefits and medical treatment to return that employee back to their pre-injury baseline condition.
What is an employer and/or insurer to do when faced with an aggravation claim? If a relevant preexisting condition is known or suspected, an investigation into the employee’s prior medical history should be conducted to the extent such an investigation is possible. Sometimes, it may not be known that a claim is an aggravation until a review of medical records is made. If a hearing has been requested and a claim is in litigation, medical records can be obtained and providers identified through written discovery requests, non-party requests for documents and the claimant’s discovery deposition. However, if a claim is not in litigation, other methods can be utilized, such as a medical canvass or pharmacy sweep. When a claim is not in litigation, records may be requested with a WC-207 Authorization signed by the employee. Accordingly, it is important to obtain a signed authorization early to request vital medical records.
After the employee’s prior medical records are obtained, including any imaging (such as x-rays, MRIs and CTs), it is important to provide pertinent medical records to the employee’s authorized treating physician (ATP) for review. The ATP is likely to be in the best position to evaluate whether an employee’s ongoing disability is secondary to the work-related aggravation or their underlying, preexisting condition.
If obtaining a favorable opinion from the ATP is either not possible or not likely, an employer and insurer have the option to seek an outside, second opinion. Typically, second opinions come in the form of a one-time physical examination and record review by an alternate, appropriate specialist, which is typically referred to as an independent medical evaluation (IME). At an evidentiary hearing, deference is usually given to the ATP, in part because the ATP is typically more familiar with the injured worker and their treatment, but it does not mean that deference cannot be overcome. Administrative Law Judges will sometimes take the reputations of physicians into account. For example, some providers have known biases toward either employees or employers and insurers. Accordingly, seeking an opinion from a provider with such a known reputation is not necessarily beneficial. While such reputations can sometimes sway the outcome of an award, it ultimately comes down to the credibility of the evidence presented as a whole.
If an employee has prior restrictions or preexisting conditions, it does not mean he would not be entitled to workers’ compensation benefits in Georgia. However, uncovering preexisting conditions can offer the ability to potentially limit overall exposure. If preexisting conditions are identified, the medical records should be utilized in trying to obtain a return to baseline opinion to limit exposure.
Attorney Contact Info
Ann McElroy
ann.mcelroy@swiftcurrie.com
404.888.6212