Alabama Workers' Comp Blawg

  • 13
  • Apr
  • 2015

Misuse Of The Term Aggravation Causes Huge Overpayments In Workers' Compensation

The below article is re-published with permission from its author, John Geaney. It was originally published on April 9, 2015 on Mr. Geaney's New Jersey Workers' Comp Blog (http://njworkerscompblog.com). ---------------- SCENARIO ONE: An employee has a preexisting arthritic knee condition that his personal physician says will require imminent knee replacement. Three months later this employee steps off a truck at work feeling pain in the knee. He reports the incident to his employer, who sends him for treatment. The doctor orders an MRI, stating that he feels that the employee needs a total knee replacement. The doctor writes that this incident "aggravated" the prior knee condition. SCENARIO TWO: An employee has suffered with severe back pain for many years, treating unsuccessfully with many surgeons and has been informed she will have to live with the pain or get surgery. The employee is pushing a cart at work one day and feels pain in her back. She sees a workers' compensation doctor, who orders an MRI showing extensive spondylolisthesis. The doctor states that this incident "aggravated the back condition." The employee now agrees to undergo fusion surgery. Should the employer be paying tens of thousands of dollars for surgery and eventual permanency in these two scenarios? These are very common occurrences, but is there a common understanding of the term "aggravation?" Does it mean one thing to doctors and another thing to workers' compensation practitioners? In this writer's experience, doctors often mean something completely different than attorneys. One thing is clear: if the treating doctor says that the work incident aggravated a prior condition, the Judge of Compensation will require the employer to pay for surgery and for permanency. So the ultimate answer in both scenarios above depends on what the legal definition of aggravation is. In both cases, the employee had been told of the need for surgery before any incident at work. If the authorized doctor means that the work activity simply caused "more pain" on a temporary basis with no real change in the underlying condition, then no, the employer should not be paying for surgery or permanency. Nonetheless, employers pay for these kinds of surgeries over and over again because the treating doctor says that work "aggravated" the prior condition. There are two main reasons that workers' compensation costs are overpaid in New Jersey, and for that matter, in most states: one is the lack of understanding of the legal definition of "aggravation," and the other is the failure to take a detailed past medical history. A good explanation of what aggravation means comes from the case of Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493 (App. Div. 1993),certif. denied, 135 N.J. 304 (1994). In the Peterson case, the employee suffered a traumatic accident on October 1, 1982 getting out of his truck. He missed a month of work and could no longer return to work with his company, which had ceased operations. He obtained employment four months later with another trucking company. He drove back and forth to New Jersey, stating that "empty trailer bouncing" caused his right leg to get numb. He said he had to bend down in a squat position, which hurt his back. He also said his neck would stiffen up as well. He left this company, Mid-Florida, because the hours were too long. Then he worked for four more trucking companies. The last trucking company he worked for was Yellow Freight, where he worked only six days. He ultimately found that the pain levels were intolerable, so he stopped working in June 1984 and never worked again. He brought claims against all the trucking companies, and the Judge of Compensation found that the last employer was responsible for total disability because the work there aggravated his prior back condition. On appeal the Appellate Division reversed, stating that all the areas of the body which hurt petitioner while working in these subsequent employments were the same areas he originally injured in 1982. "Clearly, because of his pre-existing conditions, petitioner's work activities at the subsequent employment caused him to suffer greater pain than he would have experienced had he remained sedentary. However, an employer is not required to compensate an employee for pain. There must be proof of a work related injury or condition resulting in permanent disability." The court also added the following: "While the work efforts of petitioner in this case may be considered strenuous by some, they were not unusual for petitioner's line of work. It was what he would have been able to do but for the October 1982 accident." Another case which clarifies the need for objective evidence of worsening to satisfy the definition of aggravation is Kozinsky v. Edison Products Co., 222 N.J.Super. 530 (App. Div. 1988). While Peterson was an occupational aggravation case, the logic that the court employed is important to appreciate. The pain petitioner was complaining of at trial was the pain he had experienced all along, and there had been objective change over the years. N.J.S.A. 34:15-36 only requires an employer to pay partial permanent disability if the work injury produces objective changes which either cause a lessening to a material degree of working ability or a substantial impairment of non-work activities. Practitioners should ask doctors not whether the work conditions "aggravated" the prior condition but whether there is any objective change from the prior condition -- or just a temporary increase in pain. In other words, if one compares the prior MRI with the new MRI, and there is no change, there is no aggravation. There may be some temporary increase in pain, but pain is subjective. If there is a difference in the MRI results showing a worsening of the condition, then the employment activities will be found to have aggravated the prior condition. As a practical matter, anyone who has a long-standing painful back or knee condition knows that almost any physical activity can cause a temporary increase in pain. For a person with an advanced arthritic knee condition, even the act of walking can cause swelling and pain. But a temporary increase in pain is not aggravation under the law. Employers end up picking up enormous medical and indemnity costs mainly because treating doctors misunderstand the legal definition of aggravation, causing general health care costs to be passed through workers' compensation. ---------------- Our guest blogger from New Jersey, John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers' Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers' compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e mail at jgeaney@capehart.com.

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