Admitting a body part during the delay period in order to control medical treatment within the MPN? Is This a valued strategy?

Response to questions from clients as to what strategy to pursue during the so-called “delay period.”

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Ingber-Weinberg-ColumnsWith seemingly increased frequency, we are receiving a substantial number of questions from our clients as to what strategy to pursue, during the so-called “delay period,” during which time the employer is investigating the claim but is also required, under Lab C 5402(c), to provide Lab C 4600 medical treatment up to the statutory cap of $10,000 or until the claim is either accepted or rejected. The current case law is anything but well-settled and while this may sound a bit vague, each case must be viewed and analyzed on its own, so that it is unlikely that a single, central strategy should be used in all claims.

The ultimate question is, “Should I deny the claim as soon as I have sufficient facts and a legally justifiable reason for doing so,” or should we run the time further, so we can conduct further investigation, while providing 5402(c) medical treatment? Alternatively, should we simply deny the claim early, and start the PQME 4060 discovery process?

The best answer should be illustrated by the following examples:

EXAMPLE 1: SHORT TERM EMPLOYEE, POST TERMINATION CLAIM

Applicant, a 26 year old Machine Operator, employed for 2 years, was provided both notice and actual lay off as of 2/1/12, her last date of work. She files a C.T claim, from 2/1/11 to 2/1/12, alleging low back and psyche, serving her claim form and letter of attorney representation on 4/1/12, after her notice of layoff. The employer now has until 7/5/12 within which to deny the claim. (Includes 5 days for mailing) A preliminary investigation reveals that the applicant was informing co-workers that she was “ready to get these people,” and upon her layoff, she was going to hire her attorney. There are no pre-existing medical records or other evidence of employer notice, prior to layoff.

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EXAMPLE 2: LONG TERM EMPLOYEE; MEDICAL CONDITION COMMONLY CORRELATES WITH NATURE OF JOB DUTIES

Applicant is a 55 year old Warehouse Worker, who has been employed with the same company for 25 years. On a daily basis, he is required to lift boxed merchandise, stack pallets, lift boxes weighing over 60 lbs., bend frequently, walk long distances and climb ladders as well as operate forklifts and hoists. He is mostly on his feet 10 hours per day and engages in other significant and substantial physical effort. He is generally deemed a good employee, with no previous injuries known. He takes a personal leave of absence in 3/2012 and the company receives a claim form for CT injury to the mid back and psyche from 3/2011-3/2012. The claim form is supported by a doctor’s note from his own physician, indicated that he needs to be off of work for a severe disc herniation and chronic sprain/strain, aggravated by the job. His doctor performs an MRI, showing degenerative disc disease at multiple levels, but a herniated disc at L4-5 (8 mm) and a protrusion at L5-S1 at 3-4 mm. The doctor is silent and therefore mentions nothing about the psychiatric issues.

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EXAMPLE 3: ADMITTED BACK CLAIM, ASSERTED “OTHER INJURIES” AND THE ALPHA APPLICANT’S FIRM IS DEMANDING MULTIPLE LEVELS OF MEDICAL TREATMENT FOR THOSE “OTHER BODY PARTS.”

Applicant is a 39 year old Computer Operator and Data Input Analyst, who has been employed by company for 10 years. She developed numbness in her bilateral wrists. She reported the problem, and the carrier has admitted the bilateral wrists, with care provided. Now, her attorney enters and she files a new DWC-1, alleging wrists, hands, fingers, arms, shoulders, legs, back, psyche, internal, sleep, and knees on a CT basis. You are dealing with an “Alpha” applicant law firm, who you know will demand treatment for the “other body parts.”

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The ultimate decision of which course of action to take reflects a balance between the risks of authorizing care for claims or specific body parts under delay vs. the strategic benefits of controlling medical treatment within your MPN, while providing ample opportunity to perfect your full investigation and discovery. An early denial, can keep you on the discovery defensive, so you have to look at the opponent and weigh the risks and benefits accordingly. And of course, with a long-term employee, it may simply make good sense to consider admitting the injury (or part of) and then controlling medical care within the MPN. This becomes even more compelling when you have a reasonable belief that with the type of job functions performed, combined with prolonged exposure and pathology, that ultimately you will be hit with injury anyway.

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