6/8/2018

For the Record

Hunt down medical files to clarify your defense strategy

By Robin M. Romano , Jeanine Quinn

Medical records can play an important role in successfully defending a workers compensation case. As workers compensation defense attorneys and claims professionals, we use medial records to try and paint a picture for workers compensation judges. These records can include emergency room (ER) records, primary care physicians’ records, treating physicians’ records, and medical records that are obtained through the subpoena process for injuries that occurred in connection with previous accidents.

ER records are unique. They are an exception to the hearsay rule and are admitted into evidence because they contain information that is considered to be reliable, given the contemporaneous nature of what is recorded. These records can be a great source of information, especially in connection with alleged workplace injuries. For example, how does the employee describe the mechanism of injury? What does he complain of, and exactly what body parts were examined? Diagnostic studies are routinely performed in the ER, but diagnostic studies not performed on a particular body part are equally telling. This is especially so if a physician treats this body part based upon complaints made by the injured worker several weeks or months after the incident date.

ER records also provide an indication of the severity of the injury to the worker. Was the worker transported to the ER by airlift or ambulance, or did he walk in on his own accord? Was he discharged or kept overnight? Importantly, ER providers will also question injured workers about any previous injuries and comorbidities. This can be a great starting point for further investigation.

Often, ER records will also reveal the injured worker’s primary care physician, which provides a good jumping off point for subpoenaing their records. These files are often treasure troves of information that reveal injured workers’ comorbidities and whether or not they were ever treated for the body parts at issue as a result of a work-related injury.

Comorbidities can give insight into not only pre-existing conditions, but also medical conditions that may delay recovery, such as diabetes and hypertension. A family physician’s records can also reveal pertinent family history. For example, in the case of an alleged work-related heart attack, a family physician’s records may very well reveal not only if the injured person was a cigarette smoker, but also if any of his close family members suffered from heart disease or hypertension.

In connection with pre-existing conditions, and in addition to a family physician’s records, a claims search summary performed by a claims professional is an important tool in revealing prior incidents or accidents that may have resulted in previous workers compensation claims. This search may also reveal motor vehicle accident claims that may or may not have been work-related.

Once the case goes into litigation, these records should also be subpoenaed in order to allow the claims professional and the defense attorney to obtain a more complete picture of the injured worker’s medical background. Not infrequently, subpoenaed records garner serial MRI studies of the cervical or lumbar spine, knees, or shoulders, which can then be reviewed by a defense expert in order to ascertain whether an injured worker’s current medical condition is the result of a completely new injury or an aggravation or recurrence of older, non-work-related conditions. It may be found that the injured worker is still treating for a particular body part at the time he suffered a “new” injury at his current place of employment.

Providing this sort of information to defense medical experts helps them round out their independent medical examinations. Additionally, knowledge of prior injuries is an important part of the defense attorney’s arsenal when it comes time to cross-examine the claimant because it can color the claimant’s credibility before a judge and paint a picture that is more advantageous to the defense. Specifically, imparting “frequent flyer” evidence to a workers compensation judge may very well give the judge pause when assessing a work-related diagnosis or lengthy and extended disability.

Treating physicians’ records are a little more difficult to parse. Sometimes what is not said in those records can be helpful. For example, are the records sparse in connection with physical examination findings? Do they contain a description of work-related injuries that differ from the ER records? Does the treating physician suddenly start treating for a body part that was not originally injured? Did the treating physician know or even think to ask the employer whether or not there was any significant past medical history?

Some hot-button topics are worth mentioning. In this day and age of narcotic abuse, did the prescribing doctor’s records mention that the injured worker signed a narcotics contract? Does the prescribing physician require the injured worker to submit to a urine screening test on a periodic basis? Are the medications being prescribed over a long period of time without consideration to ultimately weaning the injured worker off the medication?

In connection with the historically difficult diagnosis of post-concussion syndrome due to the subjective nature of the diagnosis, do the treating physician’s records correlate with the ER records? For example, do the ER records indicate that the claimant was in acute distress? In the ER, was the injured worker oriented to time, place, and person? If a brain injury was involved, what was the Glasgow Coma Scale score? (This is used in traumatic brain injury cases to evaluate the degree of a coma; a score of seven or less is classified as coma and nine or more excludes the diagnosis of coma.)

Moreover, ER records will represent whether an injured worker is “oriented times three” as a way of determining if a patient understands and is aware of his environment. If someone is oriented times three, it means that he is able to say who he is, where he is, and what time it is, which helps to determine if there has been a brain impairment. Therefore, if an injured worker tells the treating physician that he was dizzy, disoriented, and had memory impairment either at the time of the work injury or during subsequent treatment but the ER records objectively state otherwise, then this is another important weapon to wield when defending the case.

In workers compensation litigation, the claimant’s attorney will always try to paint one picture for the judge, emphasizing his client’s alleged work-related diagnosis and disability. It is up to the defense to present a very different picture, and medical records are a prime source for clarifying the picture. In many cases, they are the missing puzzle piece that helps the judge decide whether the claimant’s diagnosis or injury is the employer’s responsibility—or not.



Robin M. Romano is a shareholder in the workers compensation department at Marshall Dennehey Warner Coleman & Goggin. She can be reached at rmromano@mdwcg.com.

Jeanine Quinn is a senior benefits manager at Toll Brothers, where she handles workers compensation claims across the country. She may be reached at jquinn@tollbrothers.com.

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