There is a nasty, fairly new law out there in Workers’ Compensation involving an aggravation of a pre-existing medical condition.
For over 75 years, hearing commissioners have had no problem in finding on their own that an injured worker has suffered a compensable aggravation of a pre-existing condition. After all, it’s not rocket science. They simply review the medical records. They might see that the claimant had a bulging disc before his injury, but an MRI afterwards reveals a herniated disc and a need for surgery.
Now, however, this determination is rocket science. Unless a claimant comes to a hearing with a signed statement from a doctor stating that with a reasonable degree of certainty, most probably, the claimant has suffered an aggravation of a pre-existing condition, the claim is barred.
There are several problems with this. First of all, doctors don’t like to hand out such opinions.
Secondly, they work on their own time, and are not bound by Workers’ Compensation deadlines.
Thirdly, there are some doctors who just won’t give opinions on legal matters. Under S.C. law, the employer has the right to choose the doctor. Guess which doctor the insurance adjuster is going to make a beeline for?
Fourth, most unrepresented claimants don’t have a clue that this requirement even exists, so they are sitting ducks.
This law in operation could go like this: The claimant has a bulging disc before this injury, but herniates the disc after a heavy lifting injury. He goes to a hearing, but his doctor doesn’t provide the required aggravation statement to his lawyer within the 15 day deadline for evidence. The defense lawyer objects and the commission sustains the objection.
In order to sustain this objection, the commissioner himself must find that there is an aggravation of a pre-existing condition as opposed to a new injury.
The cockeyed result is that because there is no doctor’s statement, the commissioner himself makes a determination that there is an aggravation of a pre-existing condition and uses that determination to completely bar the claimant from further benefits that he is absolutely entitled to.
This is not a true law — it’s a back-stabbing perversion, bought and paid for by the insurance lobby.
Jack W. Swan