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Wait Before You File That First Admission!

Imagine this common situation: An employee has an accident that occurs at his work location, during working hours, while performing his job duties. The facts clearly satisfy the legal requirement that the accident, and any resulting injury, must “arise out of” and “in the course of” the employee’s employment to be compensable. As a result, the instinct is to file a General Admission of Liability. But before you file that admission, wait! Don’t be quick to admit! Before you do, consider the legal definition of “injury.”

Let’s imagine that the accident causes physical symptoms requiring the employee to seek medical care in an emergency room or clinic. The medical provider diagnoses a contusion and an abrasion. The medical provider opines that these diagnoses are consistent with the reported injury mechanism. The medical provider releases the employee to return to either regular or modified duty work. The employee appears at work for his next scheduled shift, works his regular hours, performs either regular or modified duty tasks, and earns his regular pay. Did he sustain an “injury”?

The answer is no. Case law interpreting the Colorado Workers’ Compensation Act differentiates between an “accident” and an “injury.” An “accident” is an “unexpected, unusual, or undesigned occurrence.” An “injury” is the physical trauma resulting from the accident. But, legally, to be an “injury,” there must be more than physical trauma. The physical trauma must cause both (a) the need for ongoing medical treatment and (b) temporary disability. Ongoing conservative medical treatment (such as doctor visits, physical therapy, radiology, and medications) is not enough to make the employee’s physical symptoms become an “injury.” The employee must lose more than three regular working days or scheduled shifts before the symptoms become an “injury.”

Moreover, consider this: What if the employee requires ongoing medical treatment, misses more than three days from work…and has a significant prior medical history? Let’s say that the employee was diagnosed with a work-related back strain. However, two years before the accident, he had back surgery. Over the following two years, he continued treating his residual symptoms. Is the insurer or self-insured employer required to file a General Admission of Liability? The answer is no. The safer course is to file a Notice of Contest, indicating that it is being filed “for further investigation.” The employee’s prior medical records may lead to a conclusion that the work accident caused a minor, non-compensable aggravation of his prior condition, and that ongoing treatment and wage loss is not related to the work accident. If so, you’ll be glad that a Notice of Contest was filed instead of a General Admission of Liability. It is significantly easier to “contest first and admit later” than it is to admit first and try to withdraw the admission later.

You may be concerned that filing a Notice of Contest, when the accident and resulting physical symptoms clearly “arose out of” and “in the course of” the employment, could lead to a bad faith claim. However, there is a difference between filing a Notice of Contest “for further investigation” versus filing it as “not work-related.” It is perfectly allowable to investigate for prior injuries and medical conditions before making a decision on compensability. Meanwhile, conservative medical treatment can be authorized to prevent the right of selection of a medical provider from passing to the employee. Authorizing and paying for treatment does not implicitly acknowledge liability.

Do you have further questions or concerns? Please contact the attorneys at Thomas & Ahnell, LLC and we will be happy to help.

Strategy #1

The insurer automatically sends the request through Utilization Review, just like any other treatment request. The request goes to an occupational medicine physician who is licensed to practice in Colorado (among other states) and is neither Level I nor Level II accredited with the Colorado Division of Workers’ Compensation. On the day of the deadline, the insurer receives the physician’s written report, which states:
         – Scenario A: Surprise!: Surgery is medically necessary. Relatedness is not addressed; that’s not UR’s job. Now what? There’s no time left to obtain a supplemental report addressing relatedness, and surgery can’t be denied only on relatedness without a supporting medical opinion. The insurer may have to authorize surgery.
         – Scenario B: Surgery is not medically necessary: Great! The insurer mails the denial letter and report to the requesting physician and opposing counsel. Opposing counsel notices that the physician (i) is an occupational medicine physician, not an orthopedist, and (ii) is neither Level I nor Level II accredited. Opposing counsel files an Application for Hearing asserting that the denial is invalid. A judge likely would find that the surgery was not properly denied within the 7 business days, so surgery is authorized by default.

Strategy #2

The insurer quickly retains an expert (a Level I- or II-accredited orthopedist, just like the requesting provider) to review the medical records and issue a written report within the 7-business-day deadline. The insurer sends the expert pre-injury records of the prior surgery and asks the expert to address relatedness. On the day of the deadline, the insurer receives the expert’s written report opining that surgery is reasonable and necessary, but the need for the surgery is not related to the work injury. The insurer sends the report to its attorney, who drafts a proper written Rule 16 denial letter and sends it, with the expert’s report, to the requesting provider and opposing counsel.

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