Musculoskeletal conditions associated with aging and identified during examinations of injured workers are increasingly common, adding to the complexity of claims, experts say.
These so-called degenerative conditions seen in comp claims can “become complicated because typically you have no baseline,” said Max Koonce, Memphis, Tennessee-based chief claims officer for third-party administrator Sedgwick Claims Management Services Inc.
“You don’t know where the person was as far as the degeneration before the work injury. And so it becomes challenging… Did this work injury make it worse? Or are we seeing symptoms of what was there to begin with? There’s been no worsening of the condition?”
And, as two recent court rulings show, state laws, evidence and expert testimony are among the determining factors for what is considered part of a work injury and what is considered part of getting older — and it’s not easy to predict where courts will fall on the issue, according to experts.
In Rachel Tolliver v. Dolgencorp Inc., dba Dollar General Corp., filed in the Supreme Court of Appeals in West Virginia on Feb. 20, a Dollar General store manager injured her lower thoracic spine in March 2020 while lifting cartons of windshield wiper fluid and subsequently requested pain-relief injections that the court determined would have fallen under treatment unrelated to her injury.
One medical report, which the court used to deny further treatment, stated that her disc protrusions were chronic rather than acute “given the associated degenerative disc disease, loss of disc space height, and facet hypertrophy, which all indicate a chronic degenerative process.” In a concurring opinion, several judges noted that “(t)his Court has repeatedly held that symptoms are not diagnoses and cannot be held compensable.”
Pennsylvania Liquor Control Board v. Dominick Demace Jr., filed Monday in the Commonwealth Court of Pennsylvania, concerns a maintenance repairman who was injured in 2020 and whose employer attempted to terminate benefits, contending the worker was being treated by his family doctor prior to the work incident for “degenerative joint disease and arthritis in his extremities and spine” and had recovered from the work-related injury.
A workers compensation judge, in a ruling affirmed by the state appeals court, found that the “credible and persuasive” medical opinion of one doctor showed that the claimant “suffered lumbar radiculopathy from bulging discs caused by the work injury and that the Claimant has not fully recovered from the work injury as he continues to have radicular pain.”
Dr. Adam Seidner, Hartford, Connecticut-based chief medical officer at Hartford Financial Services Group Inc., said as many as 25% of workers compensation claims include some form of degenerative condition, creating challenges for insurers and employers.
After proving that an injury occurred during the scope of employment, the next test when it comes to degenerative conditions is whether this is “an aggravation versus an exacerbation of this preexisting condition,” Dr. Seidner said.
Aggravation is a permanent worsening by the injury of a preexisting issue, while exacerbation is considered temporary, he said.
Under the care of a doctor using guidelines, it may become clear what is considered a permanent issue that could become part of the workers comp claim, he said.
Imaging alone is unclear, as many people by their 20s can experience degenerative conditions without pain, according to Dr. Stacy Ostler, Enlyte LLC’s clinical director based in Boise, Idaho.
Claims often end up in litigation over the distinction of exacerbation versus aggravation.
“A lot of it comes down to what your lawyer is able to show,” Dr. Ostler said. “Their attorney has to show that the aggravation was work-related and resulted in disability and that prevented them from doing the regular duty position.”
Mr. Koonce said medical evidence is key.
“The most critical aspect to that is going to be the medical testimony or the medical opinion as to (whether) the injury actually worsened the degenerative condition that the individual had to begin with,” he said. “And that’s where you get into a myriad of different laws within different states as to what they could consider to be worsening.”
This article was first published in Business Insurance.
