For many applicant attorneys, and even for some treating physicians, the admittance of an injury and the provision of medical treatment are often viewed as the equivalent of a carte blanche to other body parts, some of which may not have any realistic, causative connection to the injury. It is therefore essential to good claims handling and for a successful defense, that all body parts should be listed and then tracked throughout the life of an indemnity claim. The impact can be substantial, not only for every day decision-making, but also for achieving maximum impact on discovery, claim settlement, and lien handling. By tracking the “admitted” vs. “disputed” body parts, the claims examiner and counsel can easily dispatch arising issues and make good strategic decisions about medical discovery, litigation, and potential settlement.
For practical considerations, this writer keeps an ongoing “chart” for all body parts, so I know exactly which parts are admitted and which are disputed, or as they say, “in play.” This helps me critically evaluate a new medical report, conduct an effective deposition, and it helps determine whether the case should settle or go to hearing. Think of the numerous ways in which body part issues and disputes come up:
• BENEFIT NOTICES: Providing clear notice to the injured worker as to which body parts are admitted and which are being disputed.
• NON UR TREATMENT DECISIONS: Denials to RFA’s from the PTP or secondary treating physician which can be made without having to refer to utilization review. This is exclusive to either denied injuries or denied body parts.
• MPN ISSUES: Denied body parts can be treated outside of the MPN, but such treatment is self-procured and should be denied on a continuing basis.
• WHETHER TO USE AN AME OR QME: The presence of and number of so-called “disputed body parts” could have an impact on your decision as to whether or not to utilize an AME or a PQME.
• RED FLAG MEDICAL REPORTING: How many times have you had a lower back claim with no reported radiation of pain to the lower extremities, but upon the applicant’s selection of a PTP, you now receive medical reports where the pain is now extending to the hips, knees, legs and feet? Or, what about the neck injury which now straddles to the lower back?
• SIDE-BY-SIDE ANALYSIS: We make it a consistent practice to review PTP reports with a healthy dash of skepticism, whether it be a PR-2, a PR-4, or a narrative summary. Specifically, we are looking for “phantom body parts,” or simply exaggerated complaints, which have not previously arisen in any medical reporting. An example would be an admitted right knee injury, where you start to see the PTP reporting on the left ankle, right hip, and even lower back. Catching these potential inconsistencies early on can impact discovery, often in favor of the defense.
• COMPENSABLE CONSEQUENCES OR CREDIBILITY ISSUES? Keeping up with the addition of any new body parts to the claim can help determine whether these may be the legitimate consequences of the admitted injury, the result of the imagination of the applicant, or the creative license of the PTP. But, you need to stay aware.
• HELPING DEFENSE COUNSEL WITH THE DEPOSITION: This is one of the best places to focus attention on the applicant’s credibility. This is where, as they used to say, “the rubber meets the road.” Here, the applicant can be examined on when the phantom body part complaint arose, whether it was disclosed to a previous PTP, and a lot more. Sometimes, an applicant’s listing of complaints barely resembles the reported symptoms to the last PTP. So, this helps make some good decisions on the applicant’s credibility.
• SETTLEMENT IMPACT: Effectively and aggressively handling the disputed body parts can very often result in the achievement of excellent settlements, because it is here where your negotiations can be effectually focused, in order to highlight and illustrate credibility issues, rather than arguing over impairment. Your strongest arguments then focus on the most vulnerable part of the applicant’s claim. It also helps to educate opposing counsel on the realistic limits of the case.
• ADJUSTING TREATMENT LIENS: Disputed body parts make fee schedule arguments essentially moot. Here, you are in a strong position to obtain good results with lien claimants, especially when they have the full burden of proof on an otherwise settled case-in-chief.
• SHAPING AND LIMITING EXPOSURE ON AWARDS: One of the most overlooked aspects of a stipulated findings and award is the effective limitation for exposure to future medical care by either specifically stipulating to “no injury” for the disputed body parts or shaping an award to deal with those body parts. When drafting a stipulated findings and award, every body part in the record should be dealt with. Do not leave any body part out. The same advice applies to a compromise and release.
With effective tracking and monitoring of all body parts, you stay in control and are on the right path to best claims outcomes.