Last month I wrote about the basics of getting a claim reopened after a closing order has become final. The statute of limitations for doing so, as I pointed out in that article, is seven years from the date of the first, final closing order. But the question arises: what is the legal basis for getting a claim reopened? The common mantra uttered by the Department of Labor and Industries claims managers and the Self Insured claims managers is that there must be objective medical evidence of worsening of one or more of the medical conditions allowed under the claim. This is partially correct, but it doesn’t tell the whole story.
When you submit your application to reopen your claim, RCW 51.52.060 provides that the Department, or the Self Insured Employer (SIE) has 90 to act upon the application. For good cause, that period can be extended another 60 days. Typically good cause is found when the Department or the SIE needs more information about the basis for the medical findings to determine if your condition(s) worsened. However, it does happen that every once in a while, no action is taken on the application. In that scenario, when there is no response within the 90 window and no order extending the time to act; or if an order was issued that extended the time another 60 days but still there was no action, then in that case, the application to reopen is deemed granted and the claim is reopened.
Objective Medical Evidence of Worsening
It is important to understand that for physical injuries, as opposed to mental health conditions, some degree of objective evidence must be present to justify reopening of the claim. That is, subjective complaints of pain or discomfort alone are not sufficient to warrant reopening of the claim. However, what constitutes objective evidence is often in dispute. Clearly, laboratory tests like blood tests, heart monitoring, radiographic tests like an MRI or x-ray, these things are considered patently objective because they require no input whatsoever from the patient. But what about other tests that require some input? The answer is that is may depend on the test and on the examiner.
For example, in the Significant Board Decision of In re: Peggy S. Anderson, Dkt 09 11986 (2010), the claimant was found to have carpal tunnel syndrome. Her doctor performed standard tests for carpal tunnel called a Phalen’s and Tinel’s tests. These tests essentially have the doctor palpate the patient’s wrists to test for a response, or put the patient’s hand and wrist in a particular position to determine the patient response. Purely objective? Purely subjective? The answer is that it is a little of both. Why? Because the doctor is performing two tests specific to the condition but he or she does require verbal input from the patient. However, the Board of Industrial Insurance Appeals found that it was sufficient proof of objective medical evidence to prove her case.
Frequently, the defense will argue that things such as range of motion and tenderness are not objective evidence because they require volitional control from the patient, or subjective complaints of tenderness or pain. Often, physicians will even be challenged on whether range of motion and tenderness are objective when they testify. Fortunately for the injured worker, there are two key supports. First, there is a jury instruction approved by the State Supreme Court which states that findings which can be seen, felt, or measured are objective findings. Well, range of motion can be measured, therefore, it may be considered objective. And there is a Supreme Court case on worker’s compensation which states that tenderness is also an objective finding. So if this is so clear, why is there a battle? Because there is still the element of patient input, patient response, and this sounds a lot like a subjective complaint to the defense. Remember, subjective complaints alone are not sufficient to warrant reopening of the claim. The key for the patient is to have the various medical providers measure range of motion and test for tenderness on repeated bases. For example, if you are seeing a PAC for treatment and also a physical therapist, have them both check for range of motion and tenderness on multiple occasions. The more often these things are tested, the more they are checked by more than one medical provider, the greater the inclination will be to accept range of motion and tenderness as objective medical findings by the Board of Industrial Insurance Appeals. Tenderness is a particularly difficult finding. Where tenderness is global, that is, one’s entire back hurts when it may be the lowest vertebrae in the spine or that disc, one would expect tenderness in that specific area, not over the entire back. Often tenderness is rejected because patients complain of tenderness on palpation over regions not directly affected by the industrial injury.
Remember, the most important thing if you are considering filing an application to reopen is that you have no more than seven years from the date of the first, final closing order for the Department or the SIE to receive your application to reopen. This doesn’t mean that you can go into your doctor’s office to reopen your claim on the last day. It means that the Department or the SIE must receive that application. If you think your condition has worsened, don’t delay, see your doctor and seek the advice of competent legal counsel familiar with worker’s compensation.
Furthermore, do not be discouraged if your application to reopen is denied. If you have support from your doctor indicating that your condition has probably worsened yet your application to reopen is denied because the Department or the SIE indicated that there is no objective evidence of worsening, obtain the advice of an attorney experienced in litigating worker’s compensation cases. Your attorney may be successful in getting your claim reopened so that you can get the treatment you need.