Archive for September, 2009

Federal Workers Compensation Causation; Not a Guessing Game

Tuesday, September 29th, 2009 by

Most workers understand that when they are making a federal workers compensation claim, it has to be supported by the professional opinion of a medical practitioner. What I mean by that is, it doesn’t matter what you say, if the medical evidence does not have the foundation of support from a qualified person in the practice of medicine you will not be successful in getting your claim approved. The Employing Agency (EA) rightfully has an obligation to controvert the claim where there is a dispute as to the stated facts.

Because the employee has the right to select a physician of his choice and because the willingness of the physician to connect the injury to work activity is critical to entitlement to benefits, this selection may be one of the most important decisions an injured employee can make. I suggest that the employee contact local plaintiff attorneys to find out which doctors are likely to be more responsive to the employee as opposed to the employer.

doctors noteMoreover, I suggest that you take a special interest in this, because as you may soon learn, your medical evidence will be called “insufficient” if it not expressed correctly. Specifically, I think it is not only necessary but crucial, that the medical care provider state that it is his opinion that an incident at work, and/or the work conditions themselves caused your medical conditions (diagnosis) and the need for your various medical treatments.

The doctor should conduct a thorough examination, including diagnostic testing, because the OWCP and the ECAB have continually stressed the need for medical reasons.

For example:

“A physician’s opinion supporting causal relationship between a claimant’s disability and a specific employment incident or factors of employment is not dispositive on the issue of causal relationship simply because it is rendered by a physician. To be probative value to an employee’s claim, the physician must provide rationale for the opinion reached. Where no such medical rationale is present the medical opinion is of diminished probative value.”

Because the concept of medical causation is often misunderstood, and because of its necessity I want to take a few minutes here to describe it to you at length. The law requires that an expert opinion from a medical care provider must be expressed by him/her with certainty with regard to two basic issues:

1. Does this person have an injury?
2. What incident caused the injury?

It’s not really that difficult a concept, but many doctors are unaware of how simple it is. Does your doctor have any reason to believe that anything but your report of the injury is true? How closely connected in time are your symptoms to the incident? Are your symptoms the type that the doctor would expect to see in a person that has had the type of trauma that you describe? Does his examination and testing indicate to him that you really have the problem you complain of? If your doctor doesn’t believe you, or won’t put it in writing, the workers compensation is not due.

Your doctor only needs to say that:

a. the work incident (or work conditions) caused your injury, and
b. the medical treatment is both reasonable and due to the injury.

Simply put, if the only medical evidence from your doctor is no more than guessing (“it might have caused it”, “it could have caused it”, “it is a possibility that it caused it”, or “it was a factor that contributed to it”), the OWCP may very well decide that the doctor’s opinion isn’t important. The vagueness and uncertainty may kill your chances of successfully having your claim approved. The second opinion doctor hired by the OWCP to review your medical records may decide that your problems are deemed to be of unknown etiology… like they might have come from outer space. That is why I’m writing this letter to you. Most often, the doctor’s notes in your file aren’t sufficient to deal with these issues, and may therefore be essentially useless in terms of winning your case or convincing the OWCP they are legally liable for the condition your doctor treated.

This issue is what we call causation. The doctor should provide an affirmative casual link between your symptoms, his diagnosis, and the injury.

We are not asking that the doctor say he knows this with 100% certainty, nor that he knows it beyond a reasonable doubt, but that it is his opinion that the incident caused the injury. If not, there won’t be sufficient evidence to establish your claim.

If his opinion is that the doesn’t have the opinion on this vital issue, then I would not recommend pursuing the case, because there would be insufficient medical evidence and you would probably be unsuccessful. Don’t make it a guessing game; get causation in writing to increase the likelihood of being successful.

- Brad Harris, Attorney

Why get an MRI for your workers comp?

Thursday, September 24th, 2009 by

So you are going to get a MRI to see if you have damage to the disc in your spine? Imagine taking a photograph of something that can move around a bit, but declaring the way you photographed it, is the way it always is.

You might ask for a “stand up” MRI. The theory is that when a patient is lying down, they do not have the typical weight pressure on their disc as if they were standing. You don’t get to lie down while doing most jobs. Your spine typically must support the head and upper torso in the real world.

The lack of typical weight during a MRI taken while one is lying down may create a likelihood that it will not show how the pressure from the upper spine typically effects the extent of the disc abnormality.
Remember, the disc is not a stable, immovable thing. It is not a bone, it is more like an oval, or doughnut shaped, inner tube used as a shock absorber. It is primarily made of water. When healthy, it is kind of like a grape; when it goes bad, it loses its watery content (dessication) and bounce function, becoming more like a raisin. Although the outer edge/wall (technically called annular fibrosis) is supposed to be firm, it can be “squashed” in such a way that it does not spring back to its optimum shape.

Undue sudden pressure (like when a person falls down, is whip-lashed in a car wreck, or even in typical exertion movement) can cause a squeezing of this doughnut in a way that one outer wall loses its normal height; it just extends outward like a bulge.
Excessive trauma and the passage of time can cause the outer wall to lose its encapsulating effect. When this happens, the inner portion of the shock absorber seeps or extends outward, causing additional problems. This inner area is less dense than its outer edge, like the pulp of an orange surrounded by its skin. When the outer layer fails to hold the inner “pulp” in, the nucleus is described as “herniated”, thus the term “herniated nucleus pulposis”.

When the abnormality protrudes out into the surrounding neural area, it sometimes causes inflammation, decreased mobility, and even impingement on the nerve root that can result in pain and loss of strength into the extremity usually serviced by the nerve. The impairment of the extremity may qualify for a workers compensation schedule award.

When a radiologist reads a MRI, he notes the prominence of the abnormalities and passes judgment on whether or not he thinks the condition is problematic. He will also often comment on the state of nearby structures. For example, irregular joint function can cause abnormal bone growth such as bone spurs (osteophytes) or the narrowing of canals in bone structure needed for nerve passageways (foraminal stenosis).

He will quite often refer to the abnormalities in your spine as degenerative. Beware of this term, it is often as generic as using the word disease to describe any medical problem. Accordingly, while the word “degenerative” might sound like a bad thing to you, to claims evaluators it is often dismissed as common.

Anyway, without making it too confusing, it has been my experience that different MRIs of the same patient can demonstrate different pictures of the problem. Additionally the pictures can be interpreted differently by different radiologists and other medical professionals. And, even if your MRI does not provide the “objective” evidence of injury, that doesn’t mean that a person doesn’t have a permanently injured disc.

You should know that any segmental instability can cause stretching and tearing of the innervated ligamentous layer of the outer annulus fibrosis. Even without escape of nuclear liquid (herniation of the disc’s nucleus pulposis) the condition can be very painful. Innervated means there’s nerves there, causing localized pain.

Radiating tears are mostly found in the posterior annulus (back wall of the disc) and are closely related to the presence of severe nuclear degeneration. Peripheral tears are most often associated with trauma, as opposed to biochemical degradation, and develop independently of nuclear degeneration.

Many people are not aware that some clinical tests have indicated that as many as 18 of 60 negative MRIs have positive findings in discography. Discography is more accurate than MRI for the detection of annular pathology; a normal MRI does not exclude significant changes in the peripheral structure of the intervertebral disc, which of course, can produce pain.

A wound to the outer wall of the disc has a limited healing potential and the persisting defect could provide a pathway for irritating nuclear fluid escape into your perineural tissue, resulting in persistent pain. Treatment to this type of injury to the disc usually comes in the form of percutaneous decompression. Because the injury is less likely to cause extremity impairment, it may not qualify for a workers compensation schedule award – even though it can be just as dehabilitating as an extremity impairment… and frustrating when not properly diagnosed and treated.

So make sure you get a good photograph, and ask for a detailed explanation of it by someone trained in its full interpretation! Good luck on your MRI.

- Brad Harris, Attorney