Thomas M. Gagne, Esq.
Greenville, South Carolina
November 24, 2017
Good morning. I’d like to take this opportunity to thank the fine folks at the National Business Institute for making this CLE possible.
Today I’ll be reviewing the concepts of masking symptoms and differential diagnosis as well as the features of several common injuries you’ll have to deal with as personal injury attorneys practicing workers’ compensation law.
Along the way, we’ll touch on a few ancillary, yet critical topics: discovery challenges you’ll face as you construct your case, the claimants’ rights to a second opinion, her duties to comply with authorized treatment and the consequences of failing to do so, independent medical evaluations, what they are and when to use them, crafting compelling medical interrogatories, what functional capacity evaluations and how to deploy them, and lastly, the role vocational rehabilitation.
My goal is not to examine the leaves on the trees of all these topics, as such a lecture would necessarily exceed the time allowed, but I do hope that after my talk you will have a bird’s eye view of the features of the medical evidentiary and procedural challenges you’ll likely encounter.
I’ve designed this presentation for those attorneys just starting out in their practice and for those with less than five years handling workers’ compensation cases. But I hope that attorneys with more experience may also pick up a few things that would prove helpful to their practice. My analytical vehicle will be a case study based on an actual case I handled a few years ago. The names of the dramatis personae have been changed of course.
So, let’s jump right in. Adrian Phillips, a new workers’ compensation client, was twenty minutes late for his initial interview with me. He finally appeared with his wife, sauntering into my office, ostensibly without a care in the world. He smelled like a combination of cigarette smoke and marijuana. But his thoughts were lucid, and he spoke clearly. I concluded he understood his rights and possible remedies we would pursue, so I proceeded with the interview.
Adrian is a 42 years old male, Caucasian, standing d six feet-four inches and weighing 165lbs — underweight for his height. His medical chart noted an impressive 117 over 70 blood pressure. Large veins traced intricate designs on sinewy forearms. Richly burned by the Carolina sun, you could tell Adrian worked outside a lot. Adrian’s handshake was firm and absent was any overt display of the power you knew lay in those arms.
It was easy enough to sense the years of hard work to which Adrian’s leathery hand had been subjected, a tough hand which tapered into long, nicotine stained fingers. His small finger curled at an odd angle, as if he’d once fractured it, but decided it wasn’t worth the trouble and expense to treat.
Adrian claimed he drank 1-2 beers a day and was a moderate marijuana user, but never drank nor used at work and never partook when operating a car or heavy machinery. He had fallen into the marijuana habit in the early nineties as a teenager when the main recreation for his peer group was smoking pot while listening to grunge.
He had dropped out of high school at 17 “because he wasn’t learning anything anyway”, but, prompted by his wife Rita, whom he met and fell for at 24, he completed his GED just fine, receiving the highest score in his class. His favorite subject was math. He had no vocational training, picking up the skills he did possess OTJ. Despite a good mind, Adrian was still only an assistant manager in the warehouse he’d worked in for the last 18 years. He earned 19 dollars an hour.
Adrian’s driving record was clean, but his RAP sheet revealed a typical hell raiser – a kid who failed to grasp the seriousness of the trouble he courted, a kid raised on Star Wars movies that features as one it’s heroes Han Solo, a self-confessed thief and swindler, that is, a typical male example of his generation who grew up too late and thought movies and television were an accurate reflection of reality and proper human behavior. His most serious charge was possession with intent to distribute crack cocaine at 21 for which he received a five-year sentence, suspended to one with four years’ probation accompanied by alcohol and drug counseling, but he had been arrested several times since for simple assault, a few fraudulent checks and once for receiving stolen goods. It had not been an easy road for Adrian; and no doubt contributed to making the road harder than it needed to be.
These criminal shenanigans occurred in his late teens and early twenties. But now he truly appeared to be a dedicated worker and faithful husband, ready to lend a hand to a newbie employee brave enough to breach Adrian’s quasi- ersatz fearsomeness to ask for guidance.
Now, Adrian always “took a rain check” when the guys invited him for a “few pops” at the local bar. He liked to get home, see Rita, fix old cars – his second love, and rummage around junk yards on weekends for car parts, occasionally rescuing a serviceable kid’s bicycle save a missing part or two– bikes which he would then refurbish and donate to a nearby home for parentless kids. Rita knew about the bikes, but only Adrian and the staff at the local SPCA knew he would donate a 20-pound bag of kibble on most Fridays, usually his first purchase after cashing his paycheck. He never talked about the dog food, and it never occurred to him to claim it as a deduction on his tax return.
Adrian and Rita were in significant financial distress, Rita having lost her job several months previously due to the stagnant economy. According to them, their monthly income had fallen by at least 60%, and the fact that Adrian had not received any TTD (temporary total disability) since his accident despite a note from the doctor excusing him from work meant that financial collapse was imminent as the couple lived from paycheck to paycheck and had no savings.
Apart from the injuries due to the accident, Adrian had no pre-existing conditions or chronic conditions save one. He had suffered 2 herniated discs in his cervical region when he was 31 resulting from a motorcycle accident. He underwent several ESI treatments (a process we’ll cover later) and had not complained of cervical pain since the wreck.
On October 27, 2015, Adrian suffered an injury arising out of and in the course of employment. As mentioned, Adrian was a warehouseman, employed in Shipping and Receiving for a company called International Automotive Parts, based in Easley, South Carolina.
Delivery trucks routinely backed up into one of Shipping and Receiving’s 14 loading/unloading docks. Standard operating procedure required the trucks to “hook onto” a ramp that connected the rear of the truck with the warehouse, so workers could use forklifts and other heavy transportation devices to deliver the pre-fabricated parts to stations within the Easley plant where they were counted, verified for quality and then entered into a database before being transferred for final assembly.
Adrian had worked in Shipping and Receiving at for the last eighteen years, had had a few “write ups” for being late and belligerent, but he was generally liked by management and co-workers.
Adrian stated he didn’t like one of his supervisors and that he was out “to get him” for some off-color comment Adrian denied making. Adrian had not risen in the organization as quickly as he and Rita had hoped, most likely a result of his truncated education and sheer lack of ambition, an early casualty of chronic THC use.
As Adrian told his story, I noticed he nurtured a permanent frown, as if he was mad at the whole world, but nevertheless told his accident story clearly, succinctly, while generally omitting the usual recriminations about fellow employees and management. In fact, Adrian rarely digressed from his tale. Unfolding it in a calm, articulate, deliberate manner. His nervousness was betrayed only by the fact that he continuously rubbed his hands together.
The facts of the accident were as follows: as Adrian unloaded a 250-lb. piece of equipment at approximately 1100 a.m. on a Tuesday, he stepped onto the ramp connecting the truck to the bay. The ramp, apparently unable to bear the weight of the load and himself collapsed along Adrian.
On the way down Adrian’s right upper extremity, right shoulder and the temporal part of his skull severely impacted the truck’s bumper.
He lay on the ground for about 5 minutes, stunned, breathless, and confused. Shards pf pain coursed down his right arm — from his shoulder to his hand. His neck pulsed with pain.
Co-workers who witnessed the accident notified the safety manager, Shirley Jenkins. Upon arrival, Shirley was more interested in how the accident happened instead of how Adrian felt, completing all the fields of the incident report form — information supplied by employees, some of whom had failed to actually see the accident but nevertheless felt compelled to get in on the action. Apparently, it was better to rubberneck an accident scene than work.
The injury scene looked gorier than it had a right to be as most of the blood resulted from Adrian’s head wound as the skull is vascular-rich.
Although meticulous, Shirley neglected to take Adrian’s statement. Nor did she give him a copy of the report. She called the head office that called the nearest hospital which dispatched an ambulance to the scene.
At the ER, Adrian complained of pain in his right arm and neck which led the ER physician to the preliminary diagnosis of cervical radiculopathy. Dr. Fleming, the authorized neurologist, employed by the company’s workers’ compensation carrier, and to whom Adrian was subsequently referred ordered a series of MRIs which disclosed two bulging discs in Adrian’s neck accompanied by spinal cord impingement, resulting in radiculopathy which would account for his arm pain.
As we’re getting in to diagnostic and anatomical terms, let’s take this opportunity to discuss the human spine.
Of all the pathologies we face as personal injury lawyers, few are as common as pathologies to the spine. The spine and spine related disorders due to some type of trauma is the bread and butter of our practice. You’ll find that most motor vehicle accidents, or MVA’s, and Worker’s Compensation cases involve spinal injuries – from its most common form, soft tissue sprain and strain to major multilevel nerve compromise requiring invasive procedures and long-term treatment.
So, let’s get acquainted with our friend and foe — the human spine. See Exhibit lateral view of the human spine. The terminology and concepts I’ll be using will become second nature to you very soon. So, relax. It’ll come, if not via diligent study then through intellectual osmosis.
The human spine is composed of five distinct parts: the cervical section, or neck, the thoracic section forming the middle of the spine, the lumbar section forming the lower section which together with the cervical section presents the most problems, the sacrum, this flat piece of here, and the coccyx, the last set of vertebrae representing the vestiges of our ancient ancestor’s tails. Although the coccyx is vestigial, injuring what is commonly called our tailbone is quite painful as anyone here can attest to who has fractured, bruised or otherwise injured his or her “butt-bone”. The whole area is obviously nerve rich.
The spine, along with the brain. forms the central nervous system. See Exhibit , Central nervous system. The spine connects to the brain via the brainstem and the medulla oblongata, See Exhibit, Closeup of brainstem and medulla oblongata. The nervous system is a vast network of nerve cells sending electrical signals, many automatic, some voluntary, between different corporeal destinations, up through the spine and into the corresponding parts of the brain and back again. A huge enclosed organic circuit, breathtaking in its complexity and capabilities, a masterpiece of evolution, responsible for finest poetry as well as the basest instincts.
Now, the spine itself is composed of bony structures called vertebrae which, amongst many other functions, forms the skeletal architecture of the spine. Each section of the spine has a specific number of vertebra – the cervical contains 7, the thoracic 2, and the lumbar 5. Injuries to the sacrum and coccyx exist of course, but within the scope of this module I’m going to omit a discussion of the disorders of these body parts.
Tubular spaces run throughout the spinal vertebrae, called foramina, through which the spinal cord, a complex bundle of nerves, flows, itself branching into lesser and lesser branches throughout the body called the peripheral nervous system. See EXHIBITS Diagram of foramina and the peripheral nervous system.
Other foramina dot the edges of the vertebrae allowing ligaments and other soft tissue structures to access the spinal column supplying support as well as supplying it with blood and oxygen. As you can see every vertebra share structural similarities but can dramatically differ depending on their placement in the spinal structure.
The vertebrae are dynamic, meaning they allow us to twist, turn, bend, reach and so forth – necessary functions in our daily life, and if injured can significantly affect a person’s livelihood, especially if her job if it is mainly physical.
Nature has provided us with shock absorbers between the vertebrae preventing them from mutual impact as we move, called intravertebral disc’s, and therein lies the rub (excuse the pun) of most spinal pathologies. EXHIBIT. DISC
Intervertebral discs are circular structures within which rest the nucleus pulposes, a soft, spongy tissue surrounded by tougher tissue called the annular fibrosis, the tough outside of donut, if you will. Intervertebral discs are elastic, compressing or expanding depending on the upright or supine position of the client and account for a quarter of the length of the spine
When these structures tear, they allow the nucleus pulposes to herniate and impinge upon the spinal cord, that vast bundle of nerves running up and down and through the spinal column – the body’s information superhighway. This impingement in turn usually results in pain down the extremities, i.e., the arms and legs. If the herniation is serious enough it can affect bowel and bladder function. The most serious derangements can result in permanent paralysis.
Now, MRIs are your best bet in detecting herniations. They are the gold standard test in this area even if the basic technology is about 40 years old. The radiating pain is medically referred to as radiculopathy, and we saw it in Adrian’s presentation of pain in his right arm.
If the pain’s locus lies in neck and the upper extremities, cervical herniation is the likely culprit. Radiculopathy in the lower extremities results from a lumbar herniation. Radiculopathy in the
Lower spine radiating into the extremities is commonly referred to as sciatica. Keep in mind also that the patient may be suffering from multiple herniations. The classical symptoms or signs of radiculopathy include numbness, tingling and pain within the extremity often coupled with a loss in range of motion (ROM). EXHIBIT Rad
It’s important to note the difference between a disc bulge and a disc herniation. An MRI may reveal several disc bulges, and yet the patient remains asymptomatic. This is generally because the herniation has yet to impinge on , i.e. contact, the spinal cord to such an extent as to generate radiculopathy. Vertebral bulging absent impingement on the spinal cord usually presents no problem. However, if the bulge does impinge upon the spinal cord, pain, at times quite severe, accompanied by numbness and tingling in one or both upper extremities may point to a serious tort case if the impingement is a proximate result of negligence or a job injury. EXHIBIT Herniated Disc impinging on spinal cord.
Moreover, bulging discs do not respect age. I’ve seen clients in their 20s test positive for disc bulges, but which were asymptomatic. Most people by their mid to late 30s experience some bulging discs, even multi-level bulging, so if your MRI reports notes disc bulging absent the word impingement or words to that effect, especially if the client does not report pain, don’t get too excited as this is probably unrelated to the type of disc herniation resulting in radiculopathy which might require more radical intervention.
Also, the herniation’s severity in individuals depends on the person’s genetics, lifestyle, and job duties. For example, smoking can aggravates discopathologies, and a person with a desk job might not experience the same level of pain as a construction worker.
I have also encountered cases where the client exhibits radiculopathic herniations by the age of 25. I have seen older patients, well into the 50’s, who exhibit minimal bulging with no impingement and are entirely asymptomatic. This despite similar types of work, lifestyles, education, socioeconomic status. In short, no absolute litmus test in this medical area.
Herniated discs are neuro – orthological in their nature. In my experience, defense counsel has never objected to my introducing medical evidence based orthological rather than neurological opinion or vice versa, although I tend to employ neurological experts. The key to prevailing in the choice of medical experts lies in their experience, board certification, and reputation in the legal and medical community. I’ve seen an instance where a credibility issue ensued over whether the examining physician was board certified or not. So, obviously, try to employ a board-certified specialists for serious spinal injuries, which, by the way are not easy to come by.
A short aside, arthritis is a “cousin” to disc degeneration. Spinal pain can at first appear neurological in its origin when in fact it’s etiology is most likely arthritic. The test is the absence or presence of radiculopathy.
For some reason many of my assistants, beginning attorneys and paralegals, upon first interviewing a client fail to ask the simple question of whether the client’s pain is radiating into the extremities, or is localized, a fundamental question you should ask in your initial interview. It’s an easy enough concept to grasp and can be integral to your medical theory especially when helping your treating physicians locate the most likely source of the offending pathology.
As far as arthritis goes, as we age, assuming all other systems are healthy, osteoarthritis rears it’s painful head as cartilage articulations separating bony structures degenerate – cartilage separates bones and when it deteriorates bone begins to rub on bone generating a full spectrum of pain. Traumatic injury proximately causes, aggravates or accelerates osteoarthritis, even if the arthritis was asymptomatic before the traumatic event. Car wrecks, slip and falls, and job injuries fall into this category. Don’t let the defense try to sell you the idea that your damages are weak because of pre-existing arthritis. I’ll show you how to counter this ploy in a few minutes using an independent medical evaluation.
So, just because osteoarthritis is a natural occurrence does not mean that it’s a pre-existing condition severing proximate causation. Another source of arthritis is rheumatoid arthritis but a discussion of this is beyond the scope of this module, but I strongly suggest your studying this disease independently.
Now, having filed the Form 50 in Adrian’s case, it was time to begin discovery. I always prepare my cases as if they are headed for litigation, despite the fact that 90% of my cases settle. So let’s talk discovery tools.
When preparing for adjudication, there are two mistakes a budding attorney can make regarding her subpoena power. One is to underutilize it, and the other is to abuse it. As I told new attorneys who worked for me: you have subpoena power. Don’t come to me and say this or that person, this or that professional is ignoring you. If you take one thing away from today regarding discovery, it’s this: use your subpoena power even if the penalty for failing to comply with a workers’ compensation subpoena is a misdemeanor fine of two hundred dollars. See CITE.
Of course, if the opposing party attempts to enter the subpoenaed, yet undisclosed material into its case, one remedy is to move to exclude. Another one is to appeal the issue should you, because of the missing evidence, fail at the Single Commissioner level. Yet another remedy is to seek substitute evidence.
That said, like most powers, subpoena power is circumscribed. The party upon whom the subpoena is served can move to quash it. In the workers’ compensation context, there exists no statute or regulation governing quashing subpoenas. If the legality of compliance becomes an issue, the subpoenaed party may file a motion with the Commissioner hearing the case and argue standard objections via counsel. Traditional rationale for noncompliance can be found in Rule ___, The South Carolina Rules of Civil Procedure. These include undue burden, privilege, etc. and is divided into required and permissive bases to quash. I’ll leave it to you to read the details of the statute.
Deposing physicians, who function as expert witnesses in workers’ compensation cases, can be challenge. At my shop, we try to build upon the relationships we’ve carefully developed with the physician’s administrative staff when scheduling a deposition. It’s only after we’ve diligently attempted to informally schedule the depo do we resort to issuing a subpoena, and we make the depo site my office. This usually gets the attention of the doctor, to say the least, and we usually get a depo scheduled at the doctor’s office at his earliest convenience — which we were trying to do in the first place.
The moral: nurture your relationships with outside support staff. They hold the keys to the kingdom and can either guide you to fertile valleys or desolate plains. This is a fundamental rule of business etiquette, but you’d be surprised how many experienced attorneys neglect this nostrum. Don’t make that mistake in your practice.
If you’re seeking information from a doctor’s office regarding your client, make sure you spell out , in a letter, the body parts involved, the date of accident, and what other records have disclosed as a preliminary diagnosis.
Clients suffer other conditions affecting other body parts and systems, and the last thing you want are reams of irrelevant, expensive, medical records. On the other hand, don’t totally tie their hands. Word the letter to assure the staff that they may look for other pathologies you may have missed which are nonetheless related to the accident.
Now, if you’re seeking answers to specific legal questions that doctor’s usually do not address in their notes, such as proximate cause, and for some reason you can’t depose her, send her a Medical Interrogatory. They’re not as exact as depositions since the attorney cannot easily ask follow up questions, but they do rather well in a pinch.
What’s a Medical Interrogatory? It’s a tool, a document containing specific questions to be completed by the authorized or unauthorized physician. Remember that the employer enjoys the right of choosing the treating physician and overall course of care in a workers’ compensation case, while the employee has the right to procure a second medical opinion. I usually send the MI only to the unauthorized doctor from whom I’m seeking a second opinion, as I’m not in the business of making my opponent’s case. However, like anything else, there are exceptions.
The MI helps crystalize the salient medical/legal points you need to make to support a prima facia case against the carrier. So rather than have the Commissioner fish for the information she needs, I make it easy for her and try to wrap everything I can into a single medical document. See Exhibit, example of medical Interrogatory.
Follow the SOAPPI method when crafting your MI questions. Ask the doctor what symptoms the client complains of, what objective tests, if relevant, he’s undergone, what the diagnosis (es) most probably is, what the treatment plan is, future meds, whether the accident proximately caused the injury, whether the patient has reached maximum medical improvement, and what the impairment rating for the body part may be according the AMA Guidelines for Permanent Impairment. I also ask what the probability is of the client’s condition worsening within one year. Remember, that this is a right that must be negotiated during settlement by clincher discussions, as a properly executed clincher agreement between the parties extinguishes this right, and you want some consideration for your client.
Also note that it can be difficult for an examining physician to determine if an injury is pre-existing if he does not have a prior MRI or other test to compare it to. Therefore, collect such prior objective testing, as well as other pertinent records and forward to your expert along with the MI and cover letter. I usually just send an entire copy of my medical file to the retained doctor which is complete by the time my expert makes an appearance.
Be sure to send the MI to the correct unauthorized doctor, usually a specialist, i.e., don’t send an eye case to an orthopedic surgeon. Simple enough point but you’d be surprised the number things that are “common sensical” get passed over. The unauthorized physician must also know how to evaluate a client for permanent impairment, that is, know how to apply the AMA Guidelines to Permanent Impairment.
Moreover, specify whether you want an evaluation or an evaluation plus treatment. And make sure the retained doctor actually physically examines your client and doesn’t simply consult the other physicians’ medical notes.
So let’s return to our case study. After filing the Form 50, the carrier filed its response in the Form 51, denying liability. In other words it filed a demurrer, which is a perfectly reasonable thing to do in the initial phases of case since the defense is stuck with any admission and doesn’t want to discover later it was the wrong move .
Additionally, the carrier hired Dr. Fleming, a neurologist, to handle the medical case. Based on a cervical MRI which showed possible impingement, he opined that Adrian was suffering from a cervical herniation at C-4 scheduled a series of corticosteroid injections (CSI’s) – a procedure whereby steroid therapy reduces the inflammation of the disc, alleviating the pressure on the spinal cord and hence the pain.
CSI’s can be squirrelly procedures. Sometimes one round of injections work miracles. The pain just never returns, and for all intents and purposes, the client is “cured”. In most cases, however, CSI’S ultimately fail, providing relief for a short period of time only for the pain to return within a few weeks.
Unfortunately, Adrian fell into the second class of clients. After two sets of CSI’s his pain had not abated. The thought of his malingering began to seep into my judgement after recalling his criminal past, but I felt it was out of character given his performance in the last ten years. Moreover, there was no basis for retaliation or other motive of which I was aware.
I called him to request a follow up office meeting. As we reviewed his symptoms he off-handedly mentioned that his pain radiated upwards from his wrist into the shoulder. I thought he had misspoken, and he stated his pain usually radiated down from his shoulder through his arm to his hand, but he reiterated that on this day the pain radiated upward from the wrist to the shoulder. I had stumbled upon a symptomological anomaly.
As I’ve mentioned, cervical radiculopathy flows from the neck down the arm — southward as it were. Adrian was reporting this but also reporting pain flowing northward from his wrist. Either my medical theory was wrong, the radiologist had misread the MRI or Adrian was malingering.
It didn’t help that I’d had never seen such a symptomatology in my twenty years of practice. Which I have a feeling really isn’t saying all that much. I could probably practice fifty years and encounter disorders I’d never seen before, such is the complexity of medicine. But it was obvious that the physician and I had to now engage in differential diagnostic analysis.
I called a neurologist I work with and explained the facts of the case to her. She agreed that the symptoms were inconsistent. What was left? Applying the process of differential diagnosis, we kicked around the possibility that Adrian could be suffering from an ulnar neuropathy which consists of either carpal tunnel or cubital tunnel syndrome, or, on the darker side of the spectrum, what I referred to as Adrian’s northward upper extremity pain could be signaling a case of complex regional pain syndrome, a somewhat mysterious and disconcerting ailment which in its nastier manifestations could mean years of pain management.
We also discussed the possibility that the previous cervical corticosteroids injections may have masked the northward symptoms and may have accounted for the late reporting. But it was also within the realm of reason that Adrian, once he realized that the more injuries he claimed, the greater the compensation he’d probably receive, was simply malingering.
After further discussion with the neurologist, I decided referred him for nerve conduction study. Perhaps Adrian was suffering simultaneously from multi-level cervical radiculopathy as well as ulnar neuropathy – a condition which expresses itself in carpal tunnel or cubital tunnel syndrome—with the ulnar neuropathy flowering only when the CSI reduced the cervical inflammation. Let’s take a few minutes to discuss some features of these pathologies.
The ulnar nerve runs medially down the upper extremity. See Exhibit Diagram of ulnar nerve. Its location makes it liable to entrapment or pinching. One of the easiest way to determine if a client suffers from ulnar nerve entrapment is difficulty forming the OK sign, which is a common symptom of ulnar nerve entrapment pain. This pain usually begins at the wrist and may travel up as far as the shoulder.
The major culprit of cubital tunnel syndrome is the humerus bone compressing the ulnar nerve. Exhibit. Diagram of Humerus Bone. As the ulnar nerve passes through a tunnel-like structure near the humerus, it can become compressed for a variety of reasons: excessive exercise and sleeping with the affected arm behind the head are common causes. Many times, the cause is idiopathic, meaning that we cannot tell what’s causing the compression.
Cubital tunnel syndrome is not to be confused with tennis elbow – the former being neurological while the latter is a soft tissue condition resulting from the over use of the involving the muscles and ligaments associated with the elbow.
Carpal tunnel syndrome was another candidate possibly responsible for the character of Adrian’s upper extremity pain. This condition also involves the medial nerve as it passes through a tubular like structure in the wrist aptly called the carpal tunnel. Like ulnar neuropathy or cubital tunnel syndrome pain results if this nerve is compressed and in many cases the pain shoots upward into the upper extremity.
The last condition I considered was the least likely cause of Adrian’s complaints, but it is quite serious and deserves at least a rudimentary explication — namely complex regional pain syndrome, CRPS, formally referred to as a reflex sympathetic dystrophy or RSD.
The symptoms of CRPS are vary between individuals and can be quite cruel. One of the ironies of CRPS is that the symptoms usually bloom near or at the site of minor injuries. In my experience CRPS usually attacks the upper extremities.
Symptoms include severe swelling, reduced temperature at the injury site, discoloration with where the skin exhibits a purplish hue, severe pain in the form of and stabbing, burning and throbbing pain coupled with an intense sensitivity to touch. EXHIBITS Photo of CRPS Symptoms.
Treatment includes various of neurological exercises, medications, even amputation of the offending limb. The pain is continuous but varies in severity, and symptoms can respond well to treatment and simply cease. Future medical costs for chronic CRPS can be astronomical, that is, a very serious and expensive case.
CRPS remains a mystery disease, no consensus yet exists as to its etiology, although there exist a number of theories.
Now, as I noted, we ruled out CPRS as Adrian exhibited none of the symptoms I just described except for the pain, and his pain was not severe enough to signal a provisional diagnosis of CRPS. Therefore, we thought that the best course of action at this point was to run a nerve conduction study, or NCS, which is a neurological procedure measuring the amount of electromagnetic energy flowing through the suspected compressed nerve. The less energy, the more the likelihood of compression.
The NCS report disclosed medial nerve compression at the cubital tunnel. The surgeon performed a nerve release, and the patient reached maximum medical improvement within a few weeks for both the cubital tunnel and his cervical neuropathy.
The attorneys clinched the case soon after MMI, and Adrian is back at work before and most of his original duties. The physicians thought it prudent to limit his weight lifting to 30 pounds for the next six months in order not to reactivate or aggravate the conditions. And to everyone’s satisfaction we haven’t heard from him since.
Although Adrian’s case did not require a functional capacity evaluation, I’d like to talk about this with you for a few minutes, as well as the topic of vocational rehabilitation. In order to do this, we must back up a bit to discuss the theories behind a claimant’s right to receive worker’s comp benefits.
Two basic theories exist.: the medical theory and the loss of earning capacity theory. In a nutshell, the medical theory supposes that an injury to a body part or parts proximately resulting in full or partial permanent impairment justifies, in and of itself, compensation. In my experience, the medical theory is the most common justification for compensation. It recognizes that an injured worker not only loses the use, or partial use, of a body part or parts as it affects his ability to work, but also loses its use vis-a vis other areas of life, i.e., relationships, hobbies, hygiene and so forth. This articulation of the “why” of damages therefore more closely resembles classical tort damages theory. It recognizes that a person is more than just a worker, an object that merely produces goods and services. It is , therefore, in theory, the most humane justification for damages.
Loss of earning capacity, on the other hand, posits that compensation should be based on the extent to which the injured body part diminishes an employee capacity to earn. The question then becomes, how is loss of earning capacity measures and then translated into dollars and cents.
South Carolina worker’s compensation law specifically lays out for you a way to calculate damages based on LOEC. See SC Code of Laws
This calculus unfolds as follows: Once a claimant reached maximum medical improvement, claimant’s attorney refers his client to a vocational expert who examines him and opines, in writing, probable loss of salary as a proximate result of his injury. The difference between claimant’s former salary and his diminished post-injury salary is multiplied by two-thirds and then that product is multiplied by the statutory multiplier for that particular body part or parts.
For those of you who like the elegance of mathematical notation, the equation for loss of earning capacity is:
2(S1 -S2)/3 x SM = indemnity
Where S1 = the pretax preinjury salary per week; S2 = the pretax postinjury salary per week; and SM= the statutory multiplier. (Note that SM does not include ancillary damages such as past and future medical specials, out of pocket expenses, mileage, etc. Nor does SM account for the value of the claimant’s right to file a worsening of condition within one year of the original Order.)
The functional capacity evaluation, or FCE, is merely another tool the vocational expert may use to determine loss of earning capacity. The body part in question is tested for strength, range of motion, ability to repeat a motion and a variety of other variables. The defense usually employs FCE’s in a bid to counter the claimant’s vocational expert’s opinion, o to counter a claim for permanent and total disability. Therefore, I use an FCE to block the defense somewhat, hoping that “my FCE” aligns, and enhances, other parts of my damages theory.
Now, one of the problems with the FCE is the examiner’s subjective opinion of whether the claimant is fully exerting herself in the various physical tests administered. The test is, in my opinion, too prone to mistake, and can transform a negative opinion regarding exertion into a wider, otherwise unwarranted full-scale credibility attack upon your client.
If I seem to be biased against the loss of earning capacity theory, I’m not. In fact, in cases involving high compensation rates, I run the indemnity numbers under both methods, and, everything else being equal, use the method which yields the best outcome for my client.
I’d also like to point out to you that vocational rehabilitation is free to South Carolina residents. The fine folks down there will test your client’s various mental and physical vocational abilities and train her in another field if warranted. In many cases, vocational rehabilitation will unearth capabilities your client never knew existed, ushering in a phase of self-discovery and possibly a better standard of living for your client. It’s a great benefit our state provides and you should seriously discuss the option with your client.
A final takeaway for today. Legal rules are more than just the “rules of the game.” This is a facile observation. Rather, regard rules and doctrine as weapons, tools of leverage, in your quest to vouchsafe your client’s interests. Deploy them strategically, and if appropriate, in number to establish the strongest bargaining position possible for you and your client at the time of negotiation and resolution.
I hope these few remarks on some of the medical and discovery aspects of workers’ compensation practice has highlighted the amount of legal and medical information a PI lawyer must master before he can consider himself competent. Try to stay up to date with all the legal and medical developments in our field. Restoring and maintaining our clients’ physical and financial well-being is a serious and I would argue noble life pursuit. And the more you put into it, the more it will reward not only your client, but you.
Thank you for your kind attention.
Photo by Harlie Raethel on Unsplash