You can lose or mitigate all defenses by making one simple mistake. We have one great KC&A defense lawyer defending a claim involving a guy walking with a dolly (or two-wheeler) loaded with product and his leg got sore and/or popped. Claimant didn’t slip, trip or have anything even slightly unusual happen. Sadly, claimant is an older worker with a sore leg. We don’t see an accident in the accident investigation or medical histories but they are claiming one occurred.
Another KC&A defense attorney is defending a fully disputed stroke case—the guy felt a headache a couple hours before work and the condition really got bad an hour or two into work. Claimant wasn’t doing anything rushed, emergent or unusual. However, counsel is seeking full coverage. Please note if they prevail on this stroke, even though claimant is back to full work, if he has another stroke at work or at home or at a ballgame, the IWCC might relate it to this “event.”
If you review the facts above, neither case has an “accident” described—by that we mean nothing hit either claimant, they didn’t hit anything, no slip/trip, there was no safety breakdown or failure by the employer. You can’t prevent “non-accident accidents.”
In such claims, not to sound fussy, please take out the words “accident” and “injury” from any analysis, report or review. Please do not use the word “accident” or “injury” in your file, summaries or the IME background letter.
Probably more important for defense claims handlers, please ask your defense IME doctor and other experts not to use those words in their reports unless they are given a medical history of trauma or unusual occurrence that we don’t have. If you are an IME doctor in this state and want to provide value to your defense clients, consider this article carefully before you casually use such terminology.
Instead, we strongly urge everyone on the defense side of the workers’ comp matrix to characterize such events as “onset” or “alleged occurrence” or “event.” The problem we feel occurs if we call or name the onset of a medical condition at work an “accident” or “injury” and then send a letter to the IME saying it is an accident or injury, we start down the road of admitting an “accident” or “injury” occurred when the main issue is whether the sore hip/stroke or onset of problems has anything to do with work.
When you or an IME doc starts by calling the event/onset an “accident” or “injury”, in our view as veteran defense observers, you have gone half-way or more to losing the claim.
In the leg claim above, our IME doctor said the “accident was a temporary exacerbation of the underlying degenerative problem”—in Illinois, the Arbitrators aren’t going to focus on the word “temporary” in that opinion, they are going to focus on the implicit admission claimant had an “accident” when he didn’t have an event your mom or pop would consider accidental. Again, if you call it onset or claimed event or alleged occurrence, we affirm this problem at work had nothing to do with a safety breakdown, trauma to client from an outside source or any of the issues that surround any definition of “accident” or “injury.” We should still be able to defend it.
To fully disclose, we are defending the claims above, we have not included strong identifying information and have no intention of affecting the outcome of the litigation—our goal is to advise our readers of the problem for future claims. We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog.