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Workers Compensation Treatment Laws

Causally Related Treatment

In order for treatment to be compensated under workers’ compensation law it must be causally related to the injury. Treatment, which does not occur as a result of the work injury, is not compensated. The Employer/Insurer will not be held responsible for treatment that is not a result of the work related injury. The four most common areas when problems develop over causation for treatment are:

1)      Prior Injuries

An employee’s prior injuries may lead an Employer/Insurer to deny payment of treatment benefits. This situation usually arises when prior to the employee’s work injury they complained of, and were treated for, injuries to the same area that is being claimed as a workers’ compensation injury. The closer the complaints and the treatment were to the date of the workers’ compensation injury, the less likely the work injury will be compensated. However, if the treating doctor can show that the injured employee has complained of substantially different subjective findings, and the doctor upon examination sees substantially different objective findings, substantiation can be made for payment of causally related treatment. The following is an example of a treatment note for prior injuries: On May 1st of 2007, Mr. Smith presented himself for treatment for a low back condition as a result of a work injury on that same day. Mr. Smith noted that he had severe low back pain, with pain that shot all the way down into his ankle. My examination revealed a positive La segues test, significantly diminished Achilles reflex and marked severe bilateral lumbar muscle spasms. My records indicate that I did treat Mr. Smith twelve months ago for a low back strain, which occurred while he was doing gardening. The records indicate that Mr. Smith at that time was complaining of defuse low back pain with no pain going into his leg. My objective findings at that point indicated minor Para lumbar muscle spasms without a positive La segues test or decreased Achilles reflex. At that time I treated Mr. Smith for three weeks and released him as recovered from his injuries. Therefore, in my opinion all of the current symptoms and objective findings that Mr. Smith currently presents are completely new and related entirely to his work injury on May 1, 2007.

2)      Subsequent, not work related Injuries

Problems also develop when an injured employee has a work related injury and experiences an injury unrelated to work. Again, the treating doctor must carefully analyze the subjective complaints and the objective findings in order to differentiate between the two injuries, and convincingly show that the treatment rendered is causally related to the work injury. If additional treatment is rendered for a non-work related injury, a separate file and billing should be created. The following is an example of a treatment note for new injuries: As you know I have been treating Mr. Smith for a work injury that occurred December 1, 2007. He had a cervical condition as a result of his work injury on that date. His primary subjective complaints since that work injury have been neck pain and shooting pain down into the right shoulder and arm. My examinations have revealed a herniated disc at the C5-6 level with associated decreased muscle strength and decreased reflex in the right biceps tendon. Last week Mr. Smith fell while taking a shower and later that same day began noticing some significant point tenderness at the top of his right shoulder. My examination has revealed significant swelling at the insertion of the rotator cuff and significant decrease strength on abduction of the right shoulder. There have been no changes in the subjective and objective findings related to the work injury. Therefore I have concluded that Mr. Smith has sustained a partial tear to his rotator cuff in his right shoulder. I will be treating Mr. Smith for this condition and will bill him separately because this is treatment not causally related to his work injury. Treatment for his work related injury will continue to be rendered on an as-needed basis.

3)      Temporary and Permanent Aggravations

If temporary or permanent aggravations occur to a work injury as a result of normal daily activities, the treatment and any resulting disability is compensated by the Employer/Insurer. If, on the other hand the temporary or permanent aggravations are caused by an intervening force unrelated to the work environment and not as a result of a normal daily activity, the Employer/Insurer is not liable for the treatment. The doctor will need to closely examine the subjective complaints and objective findings on the history and examination in order to determine the responsible payer. The following is an example of a treatment note for a temporary aggravation: As you know I have been treating Mr. Smith for a work related condition that occurred in December 2007. I have been treating him on a PRN basis at an approximate frequency of once a month for the last four months. However, last week Mr. Smith was watching TV at home in an awkward position and fell asleep. When he awoke he noticed a significant increase in pain in his neck that radiated down into his right arm and shoulder. The next day my examination revealed an increase in muscle spasms in his neck and subluxations in the mid-cervical spine. I increased treatment frequency to three times a week for one week. Today his condition is back to the state it was before he fell asleep watching TV. The Employer/ Insurer will be billed for this temporary aggravation because it occurred as a result of a normal daily activity. The following is an example of a treatment note for a permanent aggravation: As you know, on December 1, 2006 Mr. Smith injured his low back while working for Acme Incorporated. Then, in August of 2007 Mr. Smith aggravated his low back condition while working for Webb Co., Inc. Up until August of 2007 Mr. Smith had occasional complaints of mild low back stiffness. My examinations prior to the August 2007 injury showed that he had minor subluxation at the L-5 level. At that point in time he was treating on a PRN basis approximately once a month. However, following the August 2007 low back injury with the new employer, Mr. Smith began complaining of extreme muscle spasm and pain into his right hip. My examination revealed a positive Kemps sign and a positive La segues test. As of May of 2008 these subjective complaints and objective findings had decreased somewhat, but are still present. Based on that it is my opinion that the August of 2007 injury at Webb Co., Inc. has caused a permanent aggravation to Mr. Smith’s low back condition. This permanent aggravation has resulted in a significant increase in treatment frequency. Therefore, Webb Co. and it’s insurer shall continue to be billed for this treatment unless the objective findings and subjective complaints return to the state they were in prior to this aggravation.

4)      Failure to Report a Condition

Usually the Insurer will deny payment for a condition that was not included on the original report of injury. This generally happens when the primary condition is so traumatic as to overshadow any secondary conditions. For example, an employee may focus on low back pain from the slip and fall and fail to mention a less painful or disabling shoulder injury. It is very important to take an accurate and detailed history from the patient, listing all reported conditions, during the initial exam.

If the treating doctor is not thorough with documentation and one of these problem areas arise, the Employer/Insurer may deny payment of treatment that is causally related to the work injury.

REASONABLE AND NECESSARY TREATMENT

Employer/Insurers must provide payment for any treatment that is reasonable and necessary to cure and or relieve an employee of a work related injury. Many courts have interpreted what reasonable and necessary chiropractic treatment means and many states also have enacted laws or rules which serve to regulate frequency and duration of treatment.  It should be noted that passive treatment, including chiropractic, is extensively regulated.  Please contact Crabtree Law Firm for an analysis of treatment limitations in your state.

Treatment Records

Historically, the only reason doctors kept treatment records was for their own reference or for other doctors to whom the patient may be transferred. Therefore, treatment records have been by their very nature nearly impossible for the average lay person to read. Abbreviations and technical Latin terms were the mainstay of the treatment records. They were never written for a layman to read. However, that has all changed. Insurers now demand they be able to read and understand the treatment records before they will agree to pay for the treatment. Treatment records to date should include not only information the doctor can reference later but also should be written in a fashion that a lay person is able to read and understand. It is critical for the doctor to know who his audience is when doing treatment records. With work comp injuries there will always be a claims adjuster for the work comp insurer who will be reading the treatment notes. Since the claims adjuster is the one who will be determining whether the bill will be paid or not the records must be understandable by the adjuster. Even after the adjuster refuses to pay for the treatment following an adverse exam or denial of liability, the proper treatment record documentation is even more critical. The medical specialist and workers compensation judges will then be required to render decisions on whether the treatment should be compensated or not.

Workers’ Compensation rules require extensive record keeping. After a denial, the doctor is well advised to substantially increase documentation. All of the doctor’s records should have a heavy emphasis on a treatment plan. It is highly advisable that the doctor set up a tickler system that would require an updated examination to be performed at every interval required by the new treatment rules. At each examination the doctor should analyze the subjective complaints and objective findings. These subjective complaints and objective findings should be compared with the previous exam. If the currently exam shows that the patient’s condition is worsening or not getting better, the doctor should note that in the record and explain what changes the doctor is going to do in the treatment protocol to get improvement. The doctor’s plan should clearly be spelled out in the treatment records.

In addition to the plan being of critical importance, it is also essential to explain in details any time prior injuries, new injuries, temporary aggravations, or permanent aggravations of the injured employee’s condition occurs.

D. Treatment Notes

There are four major types of treatment notes explained below. 

Coded Notes

Coded Notes include numbers, letters or arrows, which indicate subjective/ objective assessment and procedure on a patient. An explanation of the codes is usually attached with each treatment note. This is probably the easiest of all treatment notes for the doctor to do. However, most claims adjusters and attorneys feel these sorts of treatment notes difficult to understand and of little value in the litigation process. Most claims adjusters will not even take the time to understand the instruction on the codes.

Written Notes

Written daily treatment notes are used by more doctors than any other method. The quality of the written daily treatment note varies considerably. Some doctors will only write one or two words to describe the office visit. Other doctors will do a full-blown SOAP, which could take up an entire page. Good written daily treatment notes take time. Generally, as doctors become busier or are in practice longer the written daily treatment notes become shorter and shorter. Written daily treatment notes are only sufficient if each subjective, objective, assessment and procedure (SOAP) is completed and is understandable to a layperson.

Computer Bar Code Notes

Over the last few years several companies have put together computer bar code note programs where the doctor will within seconds be able to generate a SOAP note. This method saves the doctor a lot of time. It also allows for the storing of the information electronically and produces a very readable and professional looking document since the notes are not handwritten. However, the doctor loses a lot of flexibility using this method. In addition, the subjective component of the daily treatment note is essentially loss. The computer bar code notes will generally only give the reader an idea of how the patient is feeling compared to the last office visit. The patient’s attorneys in particular would like to see personal activities that the patient can no longer do as a result of the accident. For example,”sex is now painful for the patient” or “the patient can no longer play with his children because it aggravates his condition” or “the patient tried bowling again but it was too painful.” These statements and others like them can dramatically increase the human interest in the injuries of the patient and lead to longer payment of the treatment bills and greater recoveries in a court of law.

Dictation

Dictation is done by the doctor carrying with him or her a small hand-held micro cassette. During each office visit, as the office visit is concluding, the doctor will state the name of the patient and dictate the SOAP. Dictation allows for a tremendous amount of flexibility. It is always much easier and quicker to say something than to write it. In addition, the patient usually will hear the dictation, which will reinforce to the patient any recommendations, made during the office visit and show the patient that the doctor is very professional and thorough. The tape produced by the doctor is then listened to by a transcriptionist who then puts the information into the computer. There are very good programs available which increase the speed which this information can be put into the computer. If the doctor is the in habit of using the same words and phrases, these phrases can be put into a macro in the computer program. The macro allows the transcriptionist to hit one key and the entire phrase is reproduced in the treatment note. Dictation is by far the best method of recording daily treatment notes. Most doctors have their favorite exam forms. They take pride in the fact they can get all the tests on a half page of paper. These exam forms are very helpful in reminding the doctor of the various tests which should be conducted. However, even in the most severe cases more than 90% of the most exam form findings will be normal. Therefore, if the entire exam form is submitted to the claims adjuster or is seen by the defense attorneys a conclusion could be drawn that the patient is in large part normal and healthy. Many doctors who now do exams on a regular basis are listing only the vitals and positive findings. The records do not indicate any of the normal findings even though all those other tests were completed. It is recommended that an exam be completed at the intervals required by the new Workers’ Compensation rules. Whenever an examination is done a conclusion should be drawn from the examination, which would include a prognosis and a plan for future treatment. If the exam findings are getting better the doctor should recommend the continued use of the treatment that is providing the cure. If the exam findings remain unchanged or are worsening the doctor should recommend alternative treatment and/or referrals to speed the healing process. The best way to document an exam note is to send a short one-page letter to the claims adjuster. The exam letter should contain the following elements:

1. A reference as to on whom the exam was done, for which injury and for what purpose.
2. All positive exam findings should be listed.
3. Any changes or lack thereof should be noted from the previous exam.
4. A plan for the next series of treatment should be outline.