April 22, 2008

Workers Comp: An Obligation to Get Better?

In conventional medicine, people are generally free to choose their care, up to the limits of their coverage. They can opt for certain procedures or decide to forego them. For the most part, adults are independent players in the medical system, acting in accord with their own wishes. In the final analysis, our health is an individual concern, factoring in, of course, the concerns of family members and "generally accepted" medical practices.

Workers comp is somewhat different. In addition to the preferences of the injured worker, his/her family and the treating physician, you have to take into account the interests of the employer, who is paying the bills (no co-pays or deductibles for the patient). Unhealthy behaviors or refusing treatment might be acceptable in conventional health care, but they raise compelling issues in workers comp. The case can and should be made that under comp, the injured worker has an obligation to get better.

Let's look at two cases: one involves an invasive diagnostic procedure, the other medically imprudent behavior.

Uncomfortable Diagnostics
Sewell Chan writes in the New York Times about Brian Persaud, a 33 year old construction worker. He was working at a Brooklyn construction project when he sustained a head injury. He was driven to New York Presbyterian hospital, where he received eight stitches for a head wound. As part of standard medical procedure, doctors wanted to perform a rectal exam, in order to rule out spinal injury. Persaud objected, a physical struggle ensued. While it's not clear whether the invasive procedure even took place, Persaud filed a civil suit, claiming that the exam comprised assault and battery at the hands of hospital workers.

Persaud’s lawyers turned to two experts, a neurologist-psychiatrist and a forensic psychologist, who testified that Persaud suffered from anxiety, depression and post-traumatic stress disorder as a result of the episode. The hospital put forward a doctor who testified that a rectal examination is an important part of advanced life support for trauma patients.

The case took eleven days to present, but the jury rejected Persaud's claim in less than an hour. In this case, the invasive procedure was deemed necessary to rule out more serious injuries. In general, patients may decline medical treatment if they are informed of the consequences of doing so and capable of making such a decision. But doctors have more leeway to perform a procedure if a patient has sustained a potentially life-threatening injury and if the doctor doubts the patient’s capacity to make informed decisions.

While the employer's interests were not directly represented in this confrontation, they were part of the mix: the employer would want to ensure that Persaud received a complete diagnostic work up, so that liability for this particular claim would be limited to the incident that occurred at work. Persaud's refusal of a necessary diagnostic test might lead directly to expensive medical complications.

Which leads us to our second example (from Lynch Ryan case files).

Incomplete Treatment
Maria M. worked as a maid for a home cleaning service. While approaching a job site, she slipped and fell on an icy sidewalk and broke her ankle. (It had recently snowed, so there was no negligence on the part of homeowner.) No question about compensability here. In order to repair the break, a temporary pin was inserted. Unfortunately, Maria was doctor-phobic. She refused to have the pin removed. As months went by, her condition worsened. She walked with a pronounced limp. The employer tried to accommodate her on light duty, but eventually they ran out of tasks. Maria was only getting worse. She was terminated due to her inability to perform the work.

The insurer was caught in the middle of a difficult situation. The injury was clearly compensable, but Maria's refusal to cooperate in her treatment involved "wilful intent" - a refusal to get better. The carrier had an opportunity to deny the claim within the six month "pay without prejudice" period, but they failed to do so. The claim dragged on. Even after an independent medical exam favorable to the employer, the carrier continued paying the claim. Eventually, the case settled for about $35,000, for the indemnity and loss of function exposures. Given the severity of Maria's condition, this is not a huge settlement. (The carrier feared an exposure of twice that amount.) However, the employer expressed frustration at the increase in his comp premiums. Maria's disability was the result of her own refusal to cooperate with recommended treatment, not the work-related incident itself.

Inconclusive Conclusions
All of which leads us to an inconclusive conclusion: do injured employees have an obligation to get better? Must they submit to medically necessary diagnostics? Are they required to do everything possible to return to productive employment? Is it necessary to take the employer's interests into account when determining diagnostic and treatment options? Well, maybe yes and maybe no. It all depends...

In the world of comp, the interests of employee, employer and medicine itself strive for an elusive balance. In the case by case, state by state approach, results vary dramatically. It's hard to find a consistent pattern. In the ideal world, injured workers do everything possible to get better and their employers do everything possible to facilitate a return to work. But in case you haven't noticed, we live in a world that falls way short of the ideal.

| 2 Comments

2 Comments

In Oregon the worker has a legal duty to reduce disability. The WC law (edited for brevity)states:
"For any period of time during which any worker commits... practices which tend to either imperil or retard recovery... or refuses to submit to such medical or surgical treatment as is reasonably essential to promote recovery, or fails to participate in a program of physical rehabilitation, the right of the worker to compensation shall be suspended..."

I would assume that other states have similar provisions, although their use, as in Oregon, may be rare.

What shall an injured worker do when the comp. carrier only wants to take responsibility for a portion of an injury, seeking to blame the rest on things like "degenerative disc disease", an all too common practice? The worker wants to try to get well but is impeded by the beaurocracy in doing so.

Conversely, if the treatment needed is extensive, say, for example, a multi level spinal fusion where the outcome is uncertain and might make the person worse, do you propose a court order requiring that worker to involuntarily submit to the procedure?

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This page contains a single entry by Jon Coppelman published on April 22, 2008 9:39 AM.

Contractors vs employees: KBR and Blackwater shell games was the previous entry in this blog.

Cavalcade of Risk #50 is the next entry in this blog.

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