WORKER'S COMPENSATION: A GENERAL OVERVIEW AND INSIGHT INTO FUTURE MEDICAL BENEFITS

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1 WORKER'S COMPENSATION: A GENERAL OVERVIEW AND INSIGHT INTO FUTURE MEDICAL BENEFITS The Indiana Worker's Compensation Act (herein the "Act") provides that employees who suffer an injury while working in the course and scope of their employment are entitled to a series of exclusive remedies prescribed by the Act. Generally, these remedies can be categorized into three (3) basic benefits: (I) medical services and supplies until the work injurylinjuries reach a state of permanence and quiescence, which can also mean that the injured worker has been determined, by the treating physician, to be at a state of maximum medical improvement (herein "MMI"); (2) temporary total disability (herein "TTD") or temporary partial disability (herein "TPD") for lost wages during the time period that the injured worker is off of work and/or unable to work within the restrictions given; and (3) permanent partial impairment (herein "PPI") which is typically a lump-sum payment received at the end of the case to compensate the injured worker for the permanent and partial loss of use of a body part (i.e. shoulder, knee). See LC "Scheduled Injuries". A. Medical Services and Supplies An Indiana worker's compensation insurance carrier or an employer is responsible for the payment of medical bills and expenses related injuries suffered while the employee was working in the course and scope of hisiher employment. Generally, these services must be provided to the injured worker from the time of the injury up until a point where a treating physician releases the worker at maximum medical improvement (herein "MMI"). The definition of MMI is one of those terms that have been left to the discretion of medical providers and the Worker's Compensation Board to interpret and decide. Generally

2 speaking, it is the date at which an injured worker's medical condition has reached a state of "permanence" and "quiescence". "Permanence" is a condition that is expected to or will last indefinitely or permanently, as opposed to only temporaty. "Quiescence" is a state or period of inactivity; where the condition is determined to be "still" or "quiet". In essence, MMI is a point where the doctor believes that no further medical treatment will help the injured worker's medical condition. When that point is reached, a permanent partial impairment (herein "PPI") rating is typically given by the examining doctor. It is interesting to note that many people believe that they must only (emphasis added) seek medical treatment with the insurance company's or employer's authorized and approved doctor, however, this is not necessarily the case. Although, if the injured worker has no group health insurance due to being terminated, or the group health insurance carrier declines to cover the medical expenses based on the worker's compensation involvement, than this discussion might be moot. However, if group health is available to the employee and they do not decline to cover any medical expenses based on the fact that the injuries arose from a worker's compensation situation, than it might be wise for the injured worker to receive parallel treatment with the insurance company's/employer's doctors and from a physician of the employee's own choosing. Why? For a variety of reasons: (1) The claimant will feel much less suspicious of a doctor of their own choosing; (2) The doctor is much more likely to educate the claimant as to their actual condition; (3) If the defendant's doctor finds the claimant's condition to be at MMI, you already have some medical evidence in hand that will attest to the contrary.

3 A cautionary note must be interjected here, which is, by proceeding down this path, you are creating medical bills and subrogation issues that will have to be dealt with during resolution of the claim. But prior to that time, it is a tool to use to accun~ulate medical evidence that will most likely be favorable to the claimant should helshe wrongly be determined to be at a state of MMI before the actual injuries are at a state of permanence and quiescence. B. Temporary Total Disabilitv (TTD) This benefit is due on the eighth (8"') day that a worker is off of work as a direct result of a work event and the injuries suffered from same. TTD represents a wage replacement benefit should the injured worker not be able to perform the same job helshe held at the time of their injury, or if the employer is unable to accommodate any applicable work restrictionsllimitations. This type of benefit is to be provided on a weekly or bi-weekly basis until either the injured worker is able to return to work, the employer can accommodate the work restrictions (i.e. light duty work), or the claimant reaches a state of MMI. TTD also provides a good reason to have the claimant seek their own medical care, as this physician is much more likely to take the employee off of work. This will give you some evidence to submit at hearing on a TTD issue without delaying the process further. If you are successful at convincing the Single Hearing Member that your client is disabled early on in the matter, three (3) things have been accomplished: (1) Your client has renewed confidence in your abilities to advocate their case; (2) Your client is in a better financial position, and hence, not so financially pressed, which will also result in a lack of daily phone calls checking on status; (3) The Hearing Member will have now met you, your client, and your opponent and will hopefully form a positive feeling toward the first two individuals and a not so

4 positive attitude toward the latter. Also, remember that the only way that a claimant can obtain an Independent Medical Examination (herein "IME") is if heishe collects TTD. LC (c) and s provides the Board with the authority to order that an IME be provided, when appropriate, in cases where the injured worker's TTD benefits have been terminated. An IME is a chance to send the claimant to a physician who has no ties whatsoever to either party. It is basically a "fresh set of eyes" who will evaluate the claimant's injuries and make a detennination as to whether or not heishe is tmly at MMI or may need further treatment, which in and of itself, will trigger the possibility of TTD being reinstated. The Board's Ombudsman Division handles the IME process (i.e. choosing the IME doctor, setting up the appointment). Finally, recall that the term of TTD payments is strictly controlled by LC and a benefit already received is easier to defend than to initially receive. C. Permanent Partial Impairment (PPI) Keep in mind that worker's compensation is a linear system and that the benefits, and hence the battles, must be addressed in a somewhat chronological approach. By that I mean by the time you get to the PPI stage, you should have already resolved all medical treatment, average weekly wage (herein "AWW), and TTD issues. On an aside, AWW represents the claimant's average wages over the 52-week period prior to the claimant's work injury and is used to determine a claimant's TTD rate, which is two-thirds (213) of the AWW calculation. Once the aforementioned issues are resolved, this makes the resolution/trial of your PPI case all that much easier, since it will be the only issue to present for discussion. Many times, my office will present this sole issue on writings only. This must be done by Stipulation and

5 should include a "drop dead" date should the defendant be recalcitrant in working their file. D. Permanent Total Disability (PTD) PTD is another form of benefit that an injured worker may be entitled to, but a determination that an individual is permanently and totally disabled from working is much harder to achieve and is generally comprised of an evaluation of a number of factors, which include the injured worker's: (a) disabilityldisabilities, (b) impairment, (c) vocational history, (d) education, and (e) age. PTD claims are premised on specific body losses that render an individual permanently and totally disabled from maintaining any gainful employment, thus effecting total earning capacity. If an injured worker is determined to qualify for PTD status, hisiher maximum statutory benefits allowed under the Act are capped at five hundred (500) weeks of TTD. See I.C Normally, once all issues concerning medical expenses, TTD and PPI are resolved, the worker's compensation claim is over. However, the Act also includes provisions whereby an injured worker may be entitled to additional benefits after the PPI is paid and the case resolved due to a change in condition that is directly related to the original work injury, as long as the request is made within a certain period of time, thus, granting the Worker's Compensation Board (herein the "Board") with continuing jurisdiction over worker's compensation applications under ceitain circumstances. See I.C (c), infra; Halteman Swim Club v. Duguid, 757 N.E.2d 1017 (Ind. App. 2001). Over the years though, the Board and the Indiana Courts have struggled with interpreting the aforementioned provisions in the Act that discuss the time frames in which to request such modifications.

6 A modification or change in an award ending, lessening, continuing, or extending the payments previously awarded may be made by the Board on its own motion or on the application of either party on account of a change in conditions, but again, provided that the request for modification is made within the requisite time period allowed by statute. See LC. S (a). In certain cases, the Board may dismiss an application for modification or change of a compensation agreement or award where the Board can ascertain on the face of the application that it was not properly filed within the prescribed time limitation expressed below. Thus, the application may be dismissed by the Board for lack of jurisdiction. A. Indiana Statutes I. Statute of Limitations as it Applies to Petitions to Modify Ind. Code (c) provides the aforementioned time limitations within which an Application for Adjustment of Claim due to a change in condition must be filed with the Board. The statute provides in pertinent part: The board shall not make any such modification upon its own motion nor shall any application therefor be filed by either party after the expiration of two (2) years from the last day for which compensation was paid. The board may at any time correct any clerical error in any finding or award. (emphasis added). The former version of I.C (c) made an exception for applications that requested an increased PPI, allowing only one (1) year from the last day for which compensation was paid, but this language was stricken from the statute as of July 1,2006, thus removing any former ambiguities as to when exactly an injured worker could petition the Board to re-open his/her claim once it had been resolved and concluded. Theoretically speaking, any requests for modification with regard to both medical expenses and PPI ratings would have to be filed within

7 two (2) years from the last day for which compensation was paid, or else said requests for modification will be forever barred. Ind. Code (c) specifically addresses an employee's request for medical services and supplies after the injury has been adjudicated on the basis of PPI. This statute provides in pertinent part: After an employee's injury has been adjudicated by agreement or award on the basis of permanent partial impairment and within the statutory period for review in such case as provided in Section 27 of this chapter, the employer may continue to furnish a physician or surgeon and other medical services and supplies, and the worker's compensation board may within the statutory period for review as provided in Section 27 of this chapter, on a proper application of either party, require that treatment by that physician and other medical services and supplies be furnished by and on behalf of the employer as the worker's compensation board may deem necessary to limit or reduce the amount and extent of the employee's impairment. Consequently, 1.C. s (c) establishes that an employer may have to continue, if so ordered by the Board, to furnish medical services and supplies to an injured worker even after the Board approves a PPI award and settlement agreement, if those further medical services and supplies are necessary to reduce or limit the amount or extent of impairment. Thus, the interpretation of this statute is left to the discretion of the Board to use on a case-by-case basis. B. Indiana Case Law In Montgomery Aviation, Inc. v. Hampton, 650 N.E.2d 77 (Ind. App. 1995), an employer appealed the decision of the Board which found that the employer was obligated to pay for another knee surgery on an injured employee, who sustained his injury in the course and scope of his employment, and had already undergone two (2) knee surgeries for the same injury. The Court of Appeals found that the evidence submitted was sufficient enough for the Worker's Compensation Board to have reasonably concluded that the claimant's third knee surgery was,

8 indeed, a "necessary" expense within the meaning of the statute providing which expenses the employer was obligated to pay. Both treating phystcians agreed that a third surgery could have detected a condition which was previously undetectable by other methods and given the claimant's circumstances, the first physician stated that he probably would have opted for another surgery as well. The third surgery did explain the reason why the claimant continued to suffer pain and the second physician stated that he would anticipate that the claimant would improve after the third surgery. In Grand Lodge Free & Accepted Masons v. Jones, 590 N.E.2d 653 (Ind. App. 1992), the Court found that the Full Worker's Compensation Board has discretion to award an employee continuing medical expenses for a time period which it deems necessary to limit or reduce the amount and extent of hisher PPI, including palliative methods useful only to prevent pain and discomfort. See also Grerp v. Sun Oil Co., 388 N.E.2d 588 (Ind. App. 1979). The key to the holdings of these cases is the "discretion" afforded the Board, but as indicated in Mouslev v. Curry, 117 N.E.2d 280 (Ind. App. 1954), the Board has no power to arbitrarily or capriciously compel an employer to furnish additional medical, surgical, and hospital sewices to an injured employee, merely because the Board may deem it necessary. Rather, the Board must conclude and find from sufficient competent evidence that continuation of hospital and medical services will or will tend to limit or reduce the amount and extent of disability or impairment. Only then, may the Board's discretionary authority be put to use when they order the furnishing of such additional services by the employer in such amount, extent, and for such length of time as they may conclude to be reasonably necessary.

9 From a public policy standpoint, it may be that our legislature will at some time in the future define the terms "necessary" and "reasonably necessaly" as they are used in LC. S , but such restrictive definitions do not fit the profile of how the Indiana Worker's Compensation Act has been construed. The court in Talas v. Correct Piping Co.. Inc., 435 N.E.2d 22,28 (Ind. 1982) opined: "It is the longstanding rule of this jurisdiction that terms contained in our Workmen's Compensation Act are to be liberally construed so as to effectuate the humane purposes of the Act; doubts in the application of terms are to be resolved in favor of the employee, for the passage of the Act was designed to shift the burden of a work-related injury from the injured employee to the industry and, ultimately, to the consuming public." Consequently, until terms such as "necessary" and "reasonably necessary" are more strictly defined by the Indiana Legislature, they, like many other terms, will be left to the discretion of the Board to interpret and apply. However, as an example, if the treating physician opines that the injured worker is going to need chronic pain management for "X" number of years and the need for same was precipitated by hisher work injuries, then that opinion will likely be given deferential weight by the Board and tip the scales in favor of the injured worker when it comes time for the Board to determine if the future treatment is indeed "reasonably necessary." This tpe of evidentiary material is crucial to an injured worker's case if helshe plans on making a claim for future medical benefits. 11. Evidence at Hearing Related to Future Medical Expenses When you first decide to take a worker's compensation case and the facts of same indicate that there may be some future medical benefits involved, you have to start thinking early about obtaining medical evidence from the treating physicians that is tailored to that specific issue. This goes back to the topic previously addressed of the claimant hiring their own doctor(s) for

10 treatment early on in the case, and the various benefits that coincide with such a strategy. Since in that scenario, your client has a "relationship" with the physician of their own choosing, helshe is more likely to assist in the medical reports that are necessary to conclude a case involving future medical expenses. Additionally, the defendant cannot criticize, as much, the claimant's doctor for not being a treating physician, as in fact, helshe has been a treating physician. These doctors are also much more likely to converse with the claimant about what it is they (claimant) need for the future (i.e. treatment, evaluation, prescription medications) in order to control their disability andlor impairment. "Disability" is generally defined as the inability to work at any gainful capacity, while "impairment" is viewed as damage to or the loss of a bodily function (i.e. range of motion in a shoulder), which typically warrants a PPI rating. It is imperative that you acquire solid medical evidence to support a claim for future medical expenses if you intend to raise that issue either in your written submissions or at a hearing. Requesting a "Narrative Report", pursuant to the rules outlined by 1.C (e), from a treating physician is one of the most effective, and sometimes least costly, ways of obtaining the information that you need to support your claim, and believe it or not, many doctors are willing to provide a simple one-page report at no cost to your client. Attached as "Exhibit A" and "Exhibit B" are two examples of a standard Narrative Report that can be used to request the specific information that you are looking for to bolster your client's claim for future medical expenses. The doctor's report should address a number of issues, including an injured worker's past and present symptoms and whether or not that individual truly is at maximum medical improvement (herein "MMI") status. In addition, the

11 report should speak to causation and relatedness of the work injuries as compared to the work incident at bar, and what type of treatment, if any, the injured worker can expect to receive in the future to either get him back to his pre-injury state, or control his symptoms (i.e. medications). An injured worker's current symptoms related to a work injury should be distinguished from past symptoms of a similar nature if there are pre-existing condition issues involved. As alluded to above, you should have the treating physician distinguish past from present symptoms in narrative form, and have the doctor also opine how those symptoms relate to areas of the body currently injured, as opposed to those the claimant may have hurt in the past (See Exhibits '2 "& 'B 3. By differentiating between past and present symptoms, it will allow the Single Hearing Member to focus on the nature of the present injuries and how they affect the claimant in light of hisiher past injuries, instead of being caught up and confused by any pre-existing medical issues. That way, the Single Hearing Member has a clearer picture with which to decide whether any future medical expenses are warranted. Indiana Evidence Rule 41 3 provides, "[s]tatements for charges of medical, hospital, or other healthcare expenses for diagnosis or treatment occasioned by an injury are admissible into evidence. Such statements shall constitute prima facie evidence that the charges are reasonable." Kellett v. State, 716 N.E.2d 975, 982 (Ind. Ct. App. 1999). Rule 413 provides for the admission of statements of medical charges, and the rule does not qualify that only statements of charges for past treatment are admissible. Once you obtain a favorable report from a treating physician that addresses the future medical expense issues, you should file a "Notice of Intent" (See Exhibit "C") to file the report with the Board in order to comply with I.C

12 If you can get a treating physician to put in writing that the injured worker needs "X" and "Y" medication for "Z" number of years as a result of the current work injuries and you appropriately file the report with the Board as discussed above, then you can start negotiating with the defendant and its insurance camer as to how much money should be set aside in an account (i.e. Medical Trust Account). These trust accounts are typically set up for the specific purpose of allowing the injured worker, after hislher case has settled, to draw funds from the account to use towards the payment of prescription medications and things of that nature. If the claimant is Medicare eligible or potentially will be in thirty (30) months, than the funds in such a trust account must be exhausted before Medicare will start paying any of the expenses related to the injuries precipitated by the work event Medicare Set Asides and Related Issues In addition to being cognizant of the numerous medical and medical expense issues that arise during the normal course of a worker's compensation case, every practitioner must be aware of the proper handling of Medicare Secondary Payer and Medicare Set Aside (herein "MSA") matters. Many attorneys who practice worker's compensation really do not understand the intricate workings behind the Medicare laws and how those laws might affect what may appear to be a routine settlement. These laws specify that Medicare has a right of recovery for past payments it has made, which is not dependent on any lien notice. See 42 C.F.R. (j Consequently, it is incumbent on all parties involved in the worker's compensation matter, including the insurance camer, to seek out information pertaining to any payments Medicare has issued with regard to the employee's work-related injuries.

13 With regard to the payment of medical expenses related to a worker's compensation matter, the employer's insurance carrier or even the injured worker's primary insurance provider are considered a "Primary Payer" of such expenses, while Medicare, by statute, is only available to pay for those medical expenses that are not already covered by the Primary Payer, thus rendering it as a "Secondary Payer" under the guise of the Medicare Secondary Payer Statute (herein "MSPS"). See 42 C.F.R (y), as interpreted by 42 C.F.R Moreover, MSPS preempts state law and insurance policy language that would work to change Medicare's status as a Secondary Payer. Penalty provisions for failing to "protect" and/or "consider" Medicare's interest could include a doubling of monetary amounts owed or to be set aside (which will be addressed below), together with attorney's fees, costs and interest. See 42 C.F.R (~)(2). In addition, failure to take Medicare's interests into "account" (i.e. "consider") and "protect" their status as a Secondary Payer could result in the total dollar amount of the injured worker's settlement being deemed to be applied to cover future medical care costs. Consequently, a "spend down" fund is created and which must be exhausted before the injured worker can receive any further Medicare benefits. This, in turn, could result in secondary lawsuits filed against the insurmce carrier, plaintiffs counsel, or defendant's counsel. The Centers for Medicare & Medicaid Services (herein "CMS") are the offices responsible for overseeing Medicare's lien rights as they relate to worker's compensation settlements. CMS's new address as of August 27,2007 for worker's compensation MSAs is: CMS - Coordination of Benefits Contractor, P.O. Box 33849, Detroit, MI The Department of Health & Human Services, through the CMS, has resorted to issuing several

14 memoranda in recent years, rather than passing more and more complex regulations, to give guidance to the public, including attorneys, as to what falls under their jurisdiction and how they review worker's compensation settlements. One such memorandum issued in July of 2001 set forth the threshold for worker's compensation cases which should be sent to CMS for review. In effect, the "memo" indicated that every worker's compensation settlement should consider Medicare's interests by not shifting the burden of paying for future medical expenses to it, even though a submission seeking CMS approval is not clearly required in every case The 2001 memo went on to deal with the difference between "Commutation" cases and "Compromised" cases. Commutation cases are defined as merely paying all that is due to the injured worker in a lump sum, as opposed to payment over time, which also includes a release of the Primary Payer (i.e. worker's compensation insurance carrier) of its duty to pay future medical expenses. Compromised cases, on the other hand, involve matters where there is a dispute as to liability. CMS is much more inclined to accept a well-documented proposal for a waiver of any Medicare Set Aside under a Compromise case CMS has outlined in prior memos certain types of cases that they will not review, nor will they expect the attorneys involved to submit such cases for review to CMS: (1) Settlements under $250,000 for Nan-Medicare Recipients - In its memo of July, 2001, CMS noted that "[Ilt is not in Medicare's best interests to review every WC settlement nationwide in order to protect Medicare's interests... Injured individuals (who are not yet Medicare beneficiaries) should only consider Medicare's interests when the injured individual has a 'reasonable expectation' of Medicare enrollment within 30 months of the settlement date, and the anticipated total settlement amount for future medical expenses and disability/lost wages over the life or duration of the settlement agreement is expected to be greater than $250,000."

15 (2) Awards by the Board - CMS has stated that it will honor the decision of a Worker's Compensation Board issued after a hearing on the merits of a case, and any designation made by the Board as to payments to be made will be given deference. However, if the Board's Award should state that a portion of the payment ordered is compensation for "future medical needs", that portion of the Award is subject to Medicare review. (3) Medicare Recipients Settling for under $10,000 - In a memo from July of 2005, CMS opined that it will no longer review new "WCMSA" proposals for Medicare beneficiaries where the total settlement amount is less than $10,000. In determining the value of the settlement, any previously settled portion (i.e. partial settlement with regard to a PPI rating on one part of the body in a multi-injury case) of the WC claim must be included in computing the total settlement amount. The normal procedure to secure CMS approval of a settlement is a review and summary of the medical records that would indicate what potential future medical needs, if any, exist as a result of the work injury being reviewed, and a calculation of the cost of those medical benefits over the life expectancy of the injured worker. Consequently, out of the proceeds of the settlement, money must be "set aside" in a trust to be used to pay those expected medical expenses based on the calculations approved by CMS, A. Medicare Set Asides In April of 2003, CMS issued a second memo that addressed the topic of Medicare Set Asides ("MSAs"). In this memo, CMS stated that once it agrees to a set aside amount, the injured worker can be certain that Medicare's interests have been appropriately considered. CMS went on to state that this is the only way in which it can be ceitain that CMS will deem Medicare's interest adequately protected, which will avoid any potential future claims. MSAs are centered around the setting aside of funds to cover future medical care and treatment related to injuries precipitated by a work-related event. The MSPS (identzfied above) authorizes recovery and precludes Medicare payments for medical services where the payment

16 either has been made, or can reasonably be expected to be made by a Primary Payer. See 42 C.F.R. 5,1395(vXb)(2)(a)(I); 42 C.F.R (2). This means that Medicare requires the Primary Payer to set aside funds to cover future medical costs so that the burden of paying for said health costs is not shifted from the Primary Payer to Medicare upon settlement of the injured worker's claim. Determining what amount to allocate into an MSA account can be a daunting and all together speculative task. There are individuals called "life care planners" who specialize in evaluating cases and submitting proposals to CMS based on future medical expenses, but the costs for these types of evaluations can be quite hefty. As an alternative, by working with the treating physician and obtaining a narrative report addressing whether or not future medical care is needed and the projected cost of same, if so warranted, the expense of a life care planner can be avoided. If an attorney works within the guidelines as outlined by CMS in obtaining such a narrative report from a treating physician and submits all medical records necessary for a proper evaluation, this results in a much more cost efficient approach to ensure that Medicare's interests are protected. Furthennore, the costs for future medical expenses estimated by life care planners are almost certainly higher than the estimates received by a treating physician. The life care planners tend to include each and every medical document in their analysis, thus, overvaluing the amount of future medical expenses. By streamlining the medical records and focusing specifically on the injuries precipitated by the work event, a treating physician can substantially reduce the amounts allocated to MSAs.

17 In the event that a proposed amount for a set aside is submitted by a life care planner, or where CMS has rejected a proposed set aside submission, a trust document must ultimately be drafted and submitted to CMS to use to direct the disbursement of funds for future medical care. This trust document is commonly referred to as a Custodial Medical Account (herein "CMA"). The tenns of the CMA must be reviewed by Medicare and they typically have regional counsel review the document for accuracy and potential problem clauses. Also discussed in CMS's memo from April of 2003 was the release of hnds that were deposited in the MSA account when a treating physician concludes, in writing, that the injured worker's medical condition has substantially improved, and has written a report with supporting documentation attached. These documents are then submitted to the appropriate regional office to seek CMS's approval to either reduce or eliminate the MSA account, and subsequently, release the funds to the injured worker to use as helshe chooses. B. Protecting All Parties' Interests As alluded to earlier, Medicare has the absolute right of recovery against any Primary Payer, or any other entity that has received payment from a Primary Payer. See 42 U.S.C. 1395(y); 42 C.F.R , Protection of Medicare's interests is established through repayment for any past ("conditional") payments, and also through the establishment of an MSA account for future medical care and associated costs related to the work-related injury. Attorneys, in their settlement agreements (i.e. Section 15 Compromises), cannot draft around Medicare's rights, including specifying any waiver of past or future claims. One of the harshest weapons in CMS's1Medicare1s arsenal is the ability to completely ignore a settlement agreement that has not consideredlprotected its interests, or even garnered the proper approval. If such a

18 situation arises, CMSIMedicare could even deem the entire settlement to be set aside for future medical care - try explaining that one to your client!!! IV. Apportionment of Future Medical Expenses A trap that many newer worker's compensation attomeys (herein "newbies" as we elder attomeys like to refer to them) fall into is evaluating a potential case strictly from the standpoint of what type of pre-existing condition "baggage" the injured worker brings with himlher. When these "newbies" sit down to talk to a potential client in order to obtain intake information, many of them want to run for the hills when the injured worker gets into hidher past medical history. Many, many clients that come into my office have had some sort of work injury in the past, whether they are of the "non-serious" variety (i.e. strains, stitches), the more "serious" variety (i.e. neck or shoulder injuries), or degenerative conditions (i.e. back). It is inevitable that if a person works rather heavy duty labor for a number of years, helshe is going to suffer some type of occupational injury or degenerative process. Regardless, it is these initial feelings of fear and panic that overcome a "newbie" and their automatic discounting of the injured worker's case based on pre-existing conditions, that results in money walking out the door and down the street to the more experienced practitioner. The Indiana Worker's Compensation Apportionment statute outlines the policy that the employer should only be responsible for compensating those injuries which result solely from events within its employ, by providing that if an employee comes to the employer with a preexisting impairment or disability which combines with a subsequent accident to result in further impairment or disability, the employer will not be liable for that portion of the injury not directly related to the employment. See LC Section 12 of the statute states in pertinent part:

19 [I]f the permanent injury for which compensation is claimed, results only in the aggravation or increase of a previously sustained permanent injury or physical condition, regardless of the source or cause of such previously sustained injury or physical condition, the Board shall determine the exteut of the previously sustained permanent injury or physical condition, as well as the extent of the aggravation or increase resulting from the subsequent permanent injury, and shall award compensation only for that part of such injury, or physical condition resulting from the subsequent permanent injury. Consequently, as long as your client is open and honest about pre-existing medical conditions and work injuries, helshe will not get "zipped" by the Single Hearing Member when it comes time to deciding compensability. The Apportionment statute goes on to indicate that it applies to injuries which merely combine with pre-existing impairments or disabilities to render an employee disabled, and disabilities which are merely aggravations of pre-existing impairments or disabilities, but not to those injuries which occur, perhaps to mentally and physically imperfect employees, solely from events at the current employer's workplace. Id. Thus, even though an individual has a long and documented history of problems with his back and then suffers an aggravation of that condition, the "newbie" shouldn't decline taking the case merely out of fear that it will be a tough road to climb to get statutory benefits. "Newbies" have to be very weary of evaluating and declining a case merely based on a civil analysis of the facts involved. When evaluating whether or not to take a case based on pre-existing conditions, one should always look at whether the current symptoms are the same as those in the past. It is easy,

20 and quite common, for an injured worker to simply state that he had a back injury, for example, many years ago, but it is another course of analysis to get into the specifics of the back injury (i.e. the level of the back that is hurting now as compared to the past; if the worker is currently experiencing numbnessltingling into his extremities and whether he felt such symptoms in the past, etc.). It is this type of detail-oriented approach to breaking down a potential case that allows an attorney to pick the "winners" and decline the "losers". It is imperative to gain as much insight as possible into a prior medical condition that is currently at issue, in order to make the proper analysis and choice of cases. Also, it is important to acquire information from the injured worker as to the length of time helshe has been working for their current employer, or any other past employers for that matter, with hisher disability andlor impairment. If the claimant suffered a back injury 20 years ago, but has been working heavy-duty, hard labor ever since with no problems and up until their most recent work event, than that increases the current employer's liability, thus lessening the potential for any adverse apportionment. Conversely, when Medicare is involved, you want to argue that the pre-existing, degenerative condition is greater and therefore, Medicare's Set Aside should be less. Pertaining directly to the Apportionment issue, lndiana case law has given us the rule that an "employer takes an employee as he finds him, if he takes him at all." See Goodman v. Olin Matheison Chemical Corp., 367 N.E.2d 1140 (Ind. App. 1977). Worker's Compensation legislation attempts to strike a balance between these policies and attempts to protect both the employee and the employer in settling claims arising from workplace accidents. See Kinzie v. Gen. Tire & Rubber Co., 134 N.E.2d 212, 216 (Ind. 1956) (obvious purpose of Apportionment

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