Man Returned to Unrestricted Work Too Soon
A 49-year-old New York man sustained a first back injury in 2002 while attempting to lift a bus engine, assisted by co-workers. He had been receiving workers’ compensation benefits for this injury when he sustained a second back injury. Sixteen days before the second injury, the patient had seen the defendant chiropractor, who returned him to unrestricted work despite herniations at L2-3, L4-5, and L5-S1; the patient signed a form acknowledging that he did not require further treatment and that he was able to resume work. After the second injury, the man underwent several months of conservative treatment but maintained that he had residual pain.
The plaintiff filed a medical malpractice claim against the chiropractor after the second injury, alleging failure to provide proper treatment. The plaintiff claimed that he was not, as the defendant had stated, fit to resume work and that the second injury occurred as a result of a typical, foreseeable, work-related task. The plaintiff claimed that the second injury caused aggravation of the preexisting herniation at L5-S1 and that this led to impingement of the thecal sac, resulting in foot drop.
The defendant claimed that the injury was the result of the patient’s own negligence in failing to use proper lifting technique.
Outcome
According to a published report, a $400,000 settlement was reached.
Comment
Treating patients in a workers’ compensation setting can present unique challenges.
We know this patient had herniations at L2-3, L4-5, and L5-S1, but we do not know whether he had recent symptoms before being returned to full duty, whether any functional limitations were evident on examination, or whether he was experiencing new radicular symptoms before the second injury. Many patients have some degree of herniation, which may or may not be symptomatic. Additionally, clinicians often see patients with lumbar disc disease of some type; was it foreseeable that the condition of a patient with established lumbar disc disease would deteriorate in response to continued (even proper-technique) lifting?
For several reasons, this case is worthy of discussion. The workers’ compensation (WC) system was set up to provide an “exclusive remedy” for any workplace injury sustained in the scope of ordinary employment. The employee gives up the right to sue the employer in court in exchange for the guarantee of prompt treatment for injuries and compensation for injuries and lost wages. However, there is a growing list of exceptions that permit an injured worker to seek recovery within the WC system by pursuing a legal case in court for the same injury.
In some states, a medical malpractice case is such an exception. It allows a patient to bring a suit against a clinician for an injury sustained while receiving WC for the same injury.
If you treat patients on WC, you need to consider a few points to avoid trouble. First, remember that you have a legal and ethical duty to the patient. The carrier may refer cases to your practice, but your obligation is to the patient. To be candid, the dynamics of a clinician-patient relationship in WC cases can be different from other patient encounters: Some WC cases are straightforward, while others can have a legalistic, quasi-adversarial feel. Approach the patient with warmth and candor while maintaining your professionalism. Jurors will expect you to provide good communication and high-quality treatment in WC cases.
Second, ask about the patient’s job description and make sure you understand all it entails before setting work limitations. It is reasonable and proper to tailor these limitations to the patient’s injury and to his or her day-to-day tasks. This can’t be done in a vacuum.
For example, a security guard who is in modest pain from a minor burn to the thigh could probably return to unrestricted duty. However, a theater stagehand, whose usual place of work is the top of a ladder 50 feet in the air, should not be returned to unrestricted duty with that same burn. Why? Because the ongoing action of moving up and down a ladder to hang theatrical props is more likely to exacerbate the pain, and the patient, distracted by the initial or worsening pain, could fall.
Further, understanding the patient’s daily duties will help you determine the likelihood that your restrictions may be exceeded—or ignored. If a worker’s job may involve lifting a bus engine, how can he be expected to return to work with a paper stating, “may not lift/carry more than 10 lb”? The injured employee may face resistance from his employer and co-workers if restrictions remove him from much of the day’s workload. It is the employer’s responsibility to find the employee work within the scope of prescribed limitations—and the clinician’s to inform the patient he will not be able to do his regular job for a while.