An employee’s first hurdle is making sure their employer is aware of the injury. Second, they need to convince a skeptical insurance claims adjuster that everyday job duties led to the pain. Finally, they must overcome any preconceived skepticism a workers’ compensation judge may have. It’s an uphill battle, but with the right strategy, it’s winnable.
The date of injury problem
Each workers compensation claim must be associated with a deadline indicating when the injury occurred. This is obvious for a sudden accident. However, for injuries or illnesses that develop over time due to work conditions, such as carpal tunnel syndrome, or a back condition caused by improper lifting, it is difficult to determine the exact date the injury occurred.
This does not only result in administrative inefficiency, but also provides an easy way for insurers to deny claims because they have not been filed in time. Employees may fail to report early on, as symptoms start out mildly – some neck discomfort after work or minor wrist soreness. Once they become more severe, several months or even years may have passed.
The best approach is to report early whenever you feel uncomfortable, and to keep your employer informed in writing. Schedule a visit with your general practitioner to document your discomfort early on in your medical records. This documentation will provide an early date to begin counting the filing deadline for your claim.
Building a medical and ergonomic evidence trail
This is the make-or-break phase of gradual injury compensation cases. Micro-trauma is the medical concept underlying almost all repetitive strain injuries – tiny physical strains that are individually imperceptible and wouldn’t cause the average person any harm, but when repeated over and over in the workplace can eventually cause a real, objective injury in someone with genetic susceptibility. A tendon that ruptures, a nerve root that is compressed, a disc that becomes herniated. Proving the physical process, and source, of that damage is quite complex.
When an insurer disputes a claim by pointing to pre-existing conditions or off-work activities, that’s the point where injured workers should seriously consider engaging workers compensation claim lawyers who can commission independent expert reports and challenge the insurer’s medical conclusions through the correct legal channels. Far more solid are the results of an ergonomic assessment by an independent occupational physiotherapist. This is a qualified professional who can map out exactly how your work activities relate to the damage shown in your radiological reports.
How insurers use degenerative changes to deny claims
Injuries that affect the body, such as repetitive movements, muscular tension, and gradual onset conditions, represent a significant portion of injuries in work. Insurers know that these claims are common and have developed a standard dispute strategy.
The most common defense is degenerative changes. A medical expert appointed by the insurer reviews the images, sees wear and tear related to age in a joint or spine, and determines that the condition is a natural part of aging rather than the cause of your work. Your hobbies can also be blamed – gardening, workouts, or a weekend sport.
The legal threshold in most workers’ compensation systems does not require that work be the sole cause. It requires that work be a significant contributing factor. This is a significant difference. Workers with pre-existing conditions may still be entitled to compensation if their job responsibilities have accelerated or intensified these pre-existing conditions. The difficulty lies in proving it.
Handling the independent medical examination
A neutral-sounding IME (Independent Medical Examination) is chosen and paid for by your insurer and is intended to seek alternative causation for your injuries from the very outset.
That doesn’t mean you let your appointment pass by: in most jurisdictions, your legal claim says you must attend an IME. It’s obligatory. But the adversarial nature of this test improves your readiness. Put all your job duties on paper and for how long you’ve been doing them. Don’t be a hero and try to downplay how bad you’re hurting; equally, don’t go blaming your employer for anything. Stick to the facts regarding the pain and what activity (including what you do for a living) you believe most likely caused it.
Make sure you get your hands on the IME report as soon as possible. Your treating physician can dispute and write a rebuttal report to IME findings. If the IME contradicts your treating doctor’s diagnosis, that disagreement doesn’t automatically end your claim – it becomes a matter for formal dispute resolution.
Documentation is a form of self-defense
People with gradual onset injuries often feel they have to explain why they’re in pain in a way no one with a broken arm ever does. And that is how these claims work. The entire process is designed for something sudden, and everything that isn’t has to fight that much harder.
The best strategy is to be just that, strategic. Be prompt in reporting symptoms, keep a paper trail, be sure not to miss doctor’s appointments, and know that “Well, you had this thing wrong with you before” or “That’s just part of getting old” may be the insurer’s answer, but it is not the end of the issue. These claims can be overcome. It just takes more effort to piece them together than a slip-and-fall report.
