Litigation over how much of an alleged work injury falls under workers compensation and how much is related to an existing degenerative condition is likely to rise as the workforce ages and medical screenings are interpreted differently, legal experts say.
A report released late last month by the Workers Compensation Research Institute found that degenerative comorbidities, such as disc disease and osteoarthritis, comprise the most frequent of all comorbidities in workers comp, appearing in 18.7% of claims.
WCRI researchers describe a degenerative condition as “deterioration of a tissue or an organ in which its function is diminished, or its structure is impaired.” In comp, it is mostly age-related and affects the musculoskeletal system, they wrote.
Such issues can affect injury recovery, disability duration and maximum medical improvement, which is why comorbidities often wind up in litigation, legal experts say.
“Anytime there is evidence of a degenerative condition, we’re always looking at the claim skeptically because we question causation frequently, especially with older claimants,” said Rich Lenkov, capital member at Bryce Downey & Lenkov LLC in Chicago. “We’re always looking at a claimant’s history to see if there are other factors besides work that may be the cause of their current condition.”
Degenerative issues are common in cases where a new injury aggravates an existing condition, blurring the line of where the employer is liable, said J. Bradley Young, a shareholder with Chesterfield, Missouri-based Harris Dowell Fisher & Young LC.
Depending on state law, co-morbidities can combine with work injuries to create permanent total disability, he said.
“Even if the work injury is to a different part of the body than pre-existing co-morbidities, that can create the potential for permanent total claims,” Mr. Young said.
Combined with the rising average age of workers, co-morbidities can increase the likelihood of permanent total disability awards, he said.
Medical screening can also prove problematic, as imaging typically can’t tell a medical provider when an injury occurred, he added.
“If a claimant has an injury to their cervical spine or lumbar spine, and an MRI shows a bulging disc, obviously, from the claimant standpoint, the allegation is that bulging disc is related to the work accident, and the employer’s physicians can’t necessarily refute that,” he said. “This is an issue we face every day now.”
Access to medical records is key, said Jeff Adelson, a partner with Irvine, California-based Bober, Peterson & Koby LLP.
Insurers and employers can examine the records to see what other issues a worker may have had or has and build a defense if there are underlying health issues, he added.
“If we look for it and we find it and we develop it, it helps us” in defending claims, he said.
This article was first published in Cook County Record.
