July 12, 2010

Bad Back: New York Toil and Trouble

Today we examine one of the great conundrums in workers comp claims: the old injury that may or may not be defined as a new injury.

In 2006 David Poulton worked for Martec Industries in Rochester, New York, as a laborer. Poulton had a bad back, having already filed workers comp claims in 1998 and 2000. When he visited his treating physician in June 2006, he had the same old complaint: his back hurt, as it had virtually every day since his first injury in 1998. He told his doctor that he re-injured his back at work the prior day while lifting materials. At this appointment, a discouraged Poulton told his doctor he wanted to quit working.

In consideration of Poulton's long-established problem, apparently compounded by the prior day's incident, the doctor disabled him from work. He cited "old injuries and his continued decline." He characterized the situation as involving "episodic increases in pain" that had troubled Poulton for several years. The doctor, in fact, had been encouraging Poulton to stop working prior to this particular visit.

An independent medical exam determined that Poulton suffered from degenerative disc disease and that his disability was caused primarily by preexisting problems.

So is this a new injury, as reported by Poulton, or simply the recurrence of an old one?

Who Pays?
An administrative law judge found in Poulton's favor, determining that the lifting incident at Martec aggravated the pre-existing condition. However, this ruling was reversed by the appelate division of the NY supreme court, which found no evidence of a new injury and remanded the case for further consideration.

Poulton may yet succeed in re-establishing his workers comp claim, but it will draw upon the resources of the carrier for his prior employer, not the carrier for Martec. As is usually the case in workers comp, the narrative is driven by the evidence. In this case, the history of pain and suffering is so unrelenting and consistent, the "new injury" theory goes up in smoke. With his working days apparently at an end, Poulton probably does not care who pays for his troubles. He has suffered for a long time.The remaining question, of course, is who pays and how much.

| 3 Comments

3 Comments

If the two companies had the same insurance providers do you think they would spend as many resources determining which job caused the injury?

Poulton will care when he realizes his lost time wages and SLU award will be based on what he earned in 1998, as opposed to 2010 (assuming he is earning more in 2010). I predict his attorney will try to secure apportionment between both claims, if he cannot get 100% for the 2010 claim.

Even when the new injury leads to surgery or other permanent disabilities like foot drop, the insurer will still cite "degenerative disc disease". I guess switching jobs, which is how the current workforce will live, will lead to more bag jobs like Mr. Poulton is getting.

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This page contains a single entry by Jon Coppelman published on July 12, 2010 11:03 AM.

News roundup: complex care, WV, VT, obesity & more was the previous entry in this blog.

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