WCDefenseCA

Happy Friday, dear readers!

Is that a new injury or just a flare-up?  An aggravation or an exacerbation?

A recent panel decision on this point just landed on the writ denied pages of workers’ comp history.

In Clark v. City of Los Angeles, applicant sustained increased symptoms, need for medical treatment, and need for temporary disability due to a temporary flare-up of a pre-existing chronic back issue.

However, defendant took the position that this was not a new injury, but JUST A FLARE-UP, which meant that there was no obligation to provide benefits such as medical care or TD.

The WCJ ruled in favor of applicant and the WCAB affirmed.

So what the heck happened?

Applicant was doing push ups as part of his physical for the police department, and hurt his back.  He exhausted his modified/light duty and resigned his employment.  In pursuing his claim, applicant was examined by an AME who ultimately found that this was NOT a new injury because his condition had improved so much that this could not have been a new injury.

With that opinion in hand, defendant proceeded boldly into trial and was likely surprised by this result.

So if applicant returned to baseline… how could the WCAB have found a new industrial injury?

The commissioners drew a distinction between permanent disability and a new injury.  Even if applicant’s new permanent disability was 0%, this was an incorrect basis upon which to find no new injury.  Because the contribution of work activities made applicant unable to work, this was a new injury.

Conceivably, an applicant can sustain an injury, miss time from work and need medical treatment, and then return to work with 0% PD and no work restrictions, discharged as cured, right?  So why can’t the same thing happen for a worsening of a pre-existing injury?

Defendants should be particularly aware of this for the sake of mitigating exposure on active claims.  Applicants can aggravate their existing injuries and thus allow a defendant on the hook for benefits from a prior claim to drag a new pocketbook to the negotiating table.  Even shifting 20% of the cost of future medical care onto another policy might be worth the few hours it takes a defense attorney to file the relevant paperwork.

In any case, dear readers, remember – a new injury isn’t just permanent disability, but time lost from work counts too!

Have a good weekend!