Any injured worker over the age of 30 with a serious work injury is likely to find some reference in his or her medical records to degeneration of the body part being examined. Degenerative disc disease, for example, is actually a normal part of the aging process. But insurers and their third-party administrators start to drool when they see those words in x-ray and MRI reports, because it gets them thinking about how they might reduce medical expenses or subtract from the PPD award on the claim.
Some insurers are very aggressive about denying claims for the reason that the injured worker has a pre-existing condition. Most physicians, not knowing what Nevada law says about pre-existing conditions, don’t help the situation. Many doctors on the insurers’ exclusive provider lists simply shrug their shoulders when their requests to perform surgery are denied. They tell the patient that they will have to use their private insurance or pay out of pocket to have a surgery for a work injury that aggravates a pre-existing condition. If the patient was probably going to need surgery at some future time anyway, these doctors think that the insurer is justified in limiting the scope of the claim. However, under Nevada statutory law and Nevada case law, many of those types of injuries should be treated under the workers’ comp claim.
NRS 616C.175 actually shifts the burden of proof to the insurer to show that the work accident that aggravates, accelerates, or precipitates a pre-existing condition is not a substantial contributing cause of the resulting condition. In other words, if the employee was working without complaints and didn’t need a surgical repair of the rotator cuff of his shoulder until he wrenched his arm while working, sending him to the clinic on the day of the work accident, the fact that he has degeneration in the shoulder joint should not preclude him from getting medical care. It has been the law since 1999 that the employer must prove that the work accident was not a substantial contributing cause of the present need for medical treatment. Yet, insurers are still handling claims as if it is the employee who must prove that a work accident that aggravates an underlying pre-existing condition is a substantial contributing cause of the need for medical treatment.
Things get even more complicated where there are prior industrial injuries and successive employers. Then, the insurer and hearings and appeals officer, must sort out whether the injured worker has had a recurrence of his first injury or is an aggravation that amounts to a new injury. A recurrence would require reopening of the first claim, while an aggravation would be the responsibility of the second employer. Which employer and insurer is responsible affects the injured worker because his average monthly wage might be different with each employer. See Grover DIls Medical Center v. Mendito, 112 P.3d 1093 (Nev. 2005) for a discussion by the court of what is a recurrence and what is an aggravation. See also, Mikohn Gaming v. Espinosa, 137 P.3d 1150 (Nev. 2006).on recurrences and aggravations.
This is an area of the law that has many pitfalls for injured workers. It is dependent on the individual facts of each case, and is heavily dependent on how doctors discuss injuries in their medical reporting. If the doctor is asked about causation, the question should properly reflect the language and intent of NRS 616C.175. Be aware that once the claim is accepted, that you will again revisit your pre-existing non-industrial condition when it is time for your impairment evaluation. The issue then will be whether the rating doctor can apportion the award (subtract from it) for the pre-existing condition. See my posts on apportionmnet.
–Written by Virginia Hunt, Hunt Law Office