Will The Commission Infer Causation & Disability? They Just Might
Last month the Court of Appeals of Virginia authored an Opinion addressing the following three interesting legal issues important for any adjuster handling claims in Virginia in Abacus Remodeling and Construction v. Fogel, Record No. 0010-22-1 (September 13, 2022):
- A claimant may still establish a claim of injuries to claimed body parts despite late reporting of said injuries to his/her medical providers;
- The Commission may infer ongoing disability even in the absence of a medical record; and
- The Commission may find that medical causation has been established without a clear statement from a doctor based upon testimony of the claimant.
The claimant in Fogel fell approximately three to five feet from a ladder on December 8, 2018. The parties stipulated to injuries of closed fractures of L1-L4, fractures of left ribs three through ten, a left hemothorax, and a gluteal hematoma. Initial hospital records noted generalized pain and bruising to the left side but did not document injuries to the neck, left shoulder and left arm. There is no clear statement in the medical records until months later of claimant’s claim to his medical providers of also injuring his neck, left shoulder and left arm. Claimant presented a medical record dated April 2, 2020 indicating no work duty status, stating, “These limitations should continue until the patient is re-assessed at his next appointment in one month.” No medical reports were submitted after the April 2, 2020 report at the five hearings conducted from July 2019 to January 2021.
The Court of Appeals affirmed the finding by the Commissions that claimant established injuries also to his neck, left shoulder and left arm. It however, reversed the Commission’s award of ongoing temporary total after May 2, 2020.
The legal principles in Fogel while not particularly novel due demonstrate the need for the Virginia adjuster to be prepared to confront these issues effectively to mitigate the claim.
Late Reported Body Parts
The Court in Fogel noted, “‘the Commission has held that “lapse of time between [an] injury and the onset of [a] claimant’s pain’ does not mean a claimant did not suffer a mechanical or structural change.” (Citation omitted). Further, that “the failure to identify a specific mechanical or structural change in initial medical reports is not fatal to a claim.” (Citations omitted). The Court in Fogel held that “[e]ven though Fogel did not feel or report pain in these body parts until six months after the work accident, this lapse in time doe not per se negate the affirmative evidence of mechanical or structural changes.”
The takeaway for the Virginia adjuster here is that you should not be overly confident on upholding a denial where the claimant does not immediately report alleged injured body parts. Each case is obviously different but thought should be given to securing a clear statement that said body parts (here it was the neck, left shoulder and left arm) are not related to the work accident.
Inferred Ongoing Disability
As noted above, the Court of Appeals reversed the finding of the Commission entering an open and ongoing temporary total award. However, the Court clearly stated that the Commission may infer ongoing disability in certain cases (yet the facts in Fogel just were not one). To be clear, the Fogel court stated “a claimant need not present a recent medical report declaring him unable to work, or recent medical records showing the claimant pursued treatment, to prove ongoing disability.” (Citation omitted). In reversing the finding of the Commission on this issue the Court noted that “Fogel provided no testimony about his ongoing symptoms, pursuit of medical treatment, or workers’ compensation issues preventing his medical treatment during the period for which he is claiming ongoing disability.” The Court also observed that the medical records as a whole could not result in inferred ongoing disability. The Court noted that at the visit with Dr. Vincent on April 2, 2020 it was note that only injections were recommended and evaluation with a thoracic surgeon.
The takeaway for the Virginia adjuster here is that it is often advisable to secure a clear statement that claimant is no longer disabled, if possible, going into the hearing. In other words, do not rely on the fact that claimant has not secured a clear statement of ongoing disability.
Inferred Medical Causation
The Court in Fogel noted that “the Commission may rely on the claimant’s credible testimony in determining causation.” (Citations omitted). The Court also noted that “the records does not contain any medical opinion that suggests that these injuries are attributed to anything other than the work accident, and the injuries are consistent with Fogel’s stipulate injuries and testimony about falling on his left side.”
The takeaway here for the Virginia adjuster is to recognize that a record that is silent on medical causation may not be a clear winner for you. The Commission may very well infer causation in certain cases like they did in Fogel. If you have a case involving clear trauma (like here with a fall from a ladder) the best course is to secure a clear statement from the treating physician and/or an independent medical evaluator addressing medical causation.
Should you have any questions about the issues discussed here or other legal issues, please do not hesitate to contact the lawyers at Ford Richardson.
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