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  1. #1
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    Mar 2015
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    Default Is an Injury that Occurs During Treatment Considered to be Work-Related

    My workers compensation claim was made in the State of: Washington

    Does anyone know of a Washington state case and/or a significant BIIA decision that addresses proximate cause for an injury which occurs after the work place injury?

    Specific facts are the second injury occurred during physical therapy treatment. Note that the treatment was approved by LNI.

    Thank you,

    Carson

  2. #2
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    831 East Morehead St., Ste 355, Charlotte, NC 28202
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    Default Re: Proximate Cause

    Go on Google Scholar and use the search terms "natural consequences" or "intervening injury" and you may be able to find an appellate case from your state that addresses this issue.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney and Board Certified Specialist in NC Workers' Compensation Law

  3. #3
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    Default Re: Proximate Cause

    It will fall under the "But For" doctrine.

    I do not know the BIIA significant Decision or the Controlling Decision of the Courts but this should be covered.

    Speak with an Attorney.

  4. #4
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    Default Re: Proximate Cause

    Quote Quoting kdgardiner View Post
    It will fall under the "But For" doctrine.

    I do not know the BIIA significant Decision or the Controlling Decision of the Courts but this should be covered.

    Speak with an Attorney.
    You have to source your info, I have no idea of what you're talking about.
    Injuries sustained during treatment fall under the "The compensable consequences doctrine"

    Causation and the Doctrine of Compensable Consequences
    By Michael H. Weier, Sep 17, 2013

    The general rule, noted by Professor Larson[iv] is that a subsequent condition is deemed compensable if proximately caused by, or a natural consequence of, the original compensable injury.[v]
    The consequences of treatment for a compensable industrial injury or occupational disease are considered to be part and parcel of the injury itself.[vi]

    [i] Anderson v. Allison, 12 Wn. 2d 487 (1942); Ross v. Erickson Construction Co., 89 Wash. 634 (1916).
    [ii] ORS 656.005(7)[ii]; ORS 656.245(1)(a)[ii].
    [iii] See, Larson on Workers’ Compensation, Volume 1, Chapter 10; In Re: Iris Vandorn, BIIA Dec. 02 11466 (2003)
    (The worker’s new injury, suffered when involved in a motor vehicle accident during return from an appointment with a vocational counselor, is covered under the claim).
    http://rwwcomplaw.com/causation-and-...-consequences/

    SUBSEQUENT CONDITION TRACEABLE TO ORIGINAL INJURY
    See also AGGRAVATION
    Aggravation by treatment
    Conditions resulting from treatment for the industrial injury are considered part and parcel of the injury itself. A cardiac arrhythmia caused by the stress of surgery is therefore attributable to the industrial injury. ….In re Arvid Anderson, BIIA Dec., 65,170 (1986) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Spokane County Cause No. 86-2-04442-1.]
    http://www.biia.wa.gov/SDSubjectInde...RIGINAL_INJURY

    RE:IRIS R. VANDORN DOCKET NO. 0211466
    http://www.biia.wa.gov/SDPDF/0211466.pdf

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

  5. #5
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    Feb 2007
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    59

    Default Re: Is a New Injury That Occurs During Treatment Proximately Caused by the Prior Inju

    Tony,

    Those are excellent citations.

    As stated, I did not know the Board Significant Decisions that you have found and I do not argue your Doctrine but I hold firm to my pervious statement:


    I feel by speaking to an Attorney this issue will resolve in the workers favor. Possible this could happen just by the Physical Therapist documenting the incident and therefore the Dept. has been "Put on Notice" of the injury.

  6. #6
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    Default Re: Is a New Injury That Occurs During Treatment Proximately Caused by the Prior Inju

    Quote Quoting kdgardiner View Post
    Tony,

    Those are excellent citations.

    As stated, I did not know the Board Significant Decisions that you have found and I do not argue your Doctrine but I hold firm to my pervious statement:


    I feel by speaking to an Attorney this issue will resolve in the workers favor. Possible this could happen just by the Physical Therapist documenting the incident and therefore the Dept. has been "Put on Notice" of the injury.
    "But For" is not a Doctrine , it's a metaphor used to describe a test.
    You have to source your statements unless you're an attorney.
    I'm not going to guess at what you're talking about or fact check members statements.
    This is the perfect example, once you posted the source, we see the context of the statement posted.

    It doesn't help if no one knows what you're talking about
    It would be no different than if I replied "This falls under the Doctrine of Compensable Consequences" - period, no sources or explanation.
    What am I talking about?

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

  7. #7
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    Oct 2015
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    Tacoma WA
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    Default Re: Is a New Injury That Occurs During Treatment Proximately Caused by the Prior Inju

    My question is how would you prove that you got a second injury that occurred during a physical therapy treatment, or that the treatment aggravated the injury?

    I think my future holds some kind of toughing treatment for my pain (a suggestion made in my records by my claims manager), and since I have bone on bone constantly rubbing together, all the toughing they going to have me do is just going to aggravate it beyond bearable..ugh not looking forward to that.

    Did someone say there was common sense being used when it's all said and done? No???? I see it so clearly now. lol

  8. #8
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    Default Re: Is a New Injury That Occurs During Treatment Proximately Caused by the Prior Inju

    Quote Quoting lvnlife662 View Post
    My question is how would you prove that you got a second injury that occurred during a physical therapy treatment, or that the treatment aggravated the injury?

    I think my future holds some kind of toughing treatment for my pain (a suggestion made in my records by my claims manager), and since I have bone on bone constantly rubbing together, all the toughing they going to have me do is just going to aggravate it beyond bearable..ugh not looking forward to that.
    It's not bone on bone in the context you're talking.
    There's still some disk space and cartilage left - enough to give some cushion.

    These people have done this before, they know how to do therapies without aggravating injuries.
    Without going into details, they always begin any therapy session with saying "if you feel pain -stop"
    I'll warn you against exaggerating your pain or failing to cooperate, they'll see through it.
    Just go there, do your best and get out - don't resist or make trouble.

    I assure you, the carrier has no intention of letting you do nothing and paying you for life.
    If by chance you do suffer an aggravation, it would have to be supported with objective medical evidence - they're not going to accept your word alone.
    It's a tough standard, something will have to show up on an MRI or blood test to support your claim.

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

  9. #9
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    Tacoma WA
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    Default Re: Is a New Injury That Occurs During Treatment Proximately Caused by the Prior Inju

    Quote Quoting tony View Post
    It's not bone on bone in the context you're talking.
    There's still some disk space and cartilage left - enough to give some cushion.

    Tony
    Thank you Tony for responding to my post. But I have not been forthcoming about the details of my case. I will rectify that now. (I apologize for the lengthiness of this beforehand though)

    I have an Occupational Disease (Osteoarthritis)

    Osteoarthritis occurs when the cartilage that cushions the ends of bones in your joints gradually deteriorates. Cartilage is a firm, slippery tissue that permits nearly frictionless joint motion. In osteoarthritis, the slick surface of the cartilage becomes rough. Eventually, if the cartilage wears down completely, you may be left with bone rubbing on bone.

    and an earlier claim and subsequent surgery (taking just over a year of light duty work and fighting with my doctor as to whether it was going to work or not) showed that I have the later statement "Eventually, if the cartilage wears down completely, you may be left with bone rubbing on bone." So hence the Occupational Disease citing Industrial Repetitive Motion as the cause. Rated 1 percent ppd and returned to work with no restrictions. (Of course everybody involved with the case was surprised I got that far into it without having any real issues.)

    Holes where drilled into the bone to create scar tissue to simulate the cushioning effect of cartilage and an anchor was used to realign the bones. Me, L&I , and my company told 3-5 yrs effectiveness and if my situation in my job did not change, I would be injured again. Promises by the company to change the ergonomics of the job and to create a position that would take me off the production line, with training to go into a more supervisory job. So the plan was be returned to JOI. No lawyer involved.


    Three yrs later, company sold, become corporation, no expansion (though budget projections were allocated for that to happen each year) of my plant and no job to transfer me into. I have had some semblance of training to move up the ladder. (unless you actually do the job, it don't really count for the resume, or does it?) A recent MRI (that took a year to get)shows hardly any space between the joints, and I have cysts through out my shoulder. increased crepitus and deterioration of the bones and new permanent restrictions are going to keep me from returning to my job of Injury.

    Yes I do have a lawyer, yes I'm cooperative and honest. My Lawyer thinks with this new information (via the recent IME that he can roll both claims in together (is that even possible?) The prior promises of the company are not a factor according to him. Money seems to be his major bottom line, and if he thinks money not there he is not pursuing it, not what my outcome in the situation will be. But that was to be expected.

    BTW I don't care bout the money...it will be a pittance amount that can't undo the damage my body has endured to make a living, I will end up probably poorer than I am currently, I'm 53 yrs old so retraining is probably out of the picture. The AP (my original AP in the first claim) will not give a PPD rating but says I have reached MMI, and the IME will not give a PPD rating either saying I have not reached MMI. Both agree to permanent restrictions (but not the actual numbers) and both agree that I will not be able to return to job of injury. Both disagree with the PCE, but my initial doctor (you know the clinic your boss takes you when an injury occurs) to whom I have not seen in more than 10 mos. does agree with it. (be interesting to see how all that works out, lol)

    But I'm medically stable, and as long as I live within my restrictions......(Fill the blank here). The Company is really pressing for a resolution for this and L&I has indicated a Vocational Plan is next on the list and hence the suggestion that this toughing therapy maybe part of the future picture.


    No PPD rating, and no agreement on MMI but let's move to the next step lol. No restrictions on another PCE by IME if they chose to do so. My Lawyer has nothing to do with the DOCs so I probably am not going to get the shoulder replacement I need to continue using both arms to make a decent living, and I will be a preferred worker status at my next job, and pain has no relevance in the outcome..you get the picture

    Hence my post, If my claims manager has her way..I might be at physical therapy again, because of the successes of having patients learn to work through the pain. Hence my wanting to know that answer if as this progresses and I have an over achiever for a physical therapist, et el...how could I prove that it just needs to stop?

    Thanks for the patience
    Last edited by lvnlife662; 11-01-2015 at 09:56 PM.

  10. #10
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    Default Re: Is a New Injury That Occurs During Treatment Proximately Caused by the Prior Inju

    Any therapies are approved by your doctor, he knows your condition.

    Therapist work with patients, they have your records and know your condition.
    As I said earlier, they make it clear that if you feel pain - stop!
    They're not about to do anything to cause liability, they video tape the entire session for everyone's protection.
    They'll know if you're making an honest effort or exaggerating, just do your best and get out of there.

    I assure you - they will put you through some type of rehab and try to find you a job within your restrictions.
    They may not succeed but they'll make you jump through the hoops in hopes that you'll blow it - don't let em win.

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

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