Dealing with Workers' Compensation Boards
by: Douglas A. Swanson
Chapter 11 of: OCCUPATIONAL SKIN DISORDERS
Daniel J. Hogan, M.D., Chief of Dermatology
Bay Pines VA Medical Center, Bay Pines, Florida.
Professor, Department of Medicine (Dermatology and Cutaneous Surgery)
Professor, Department of Pediatrics (Dermatology and Cutaneous Surgery)
College of Medicine, University of South Florida
Professor of Environmental and Occupational Health Department of Public Health University of South Florida Tampa, Florida
IGAKU-SHOIN - New York á Tokyo
Table of Contents
The objectives of most workers' compensation systems are:
1. To provide sure and prompt medical care and reasonable replacement income to injured workers, regardless of fault.
2. To provide a relatively rapid administrative system to deliver medical care and compensation.
3. To restore the injured worker, physically and economically, to a self-sufficient status.
With these objectives in mind, it is the purpose of this chapter to provide the medical dermatologist with a brief overview of workers' compensation systems and a framework for writing reports that will be utilized by insurance companies, workers' compensation lawyers, and workers' compensation judges.
There are two primary points to keep in mind when providing reports on behalf of an injured worker.
First, all workers' compensation systems are no-fault. This simply means that the injured worker is to be compensated for his or her injury without regard to whose fault it is, the employer's or the employee's. Therefore, if the worker is somehow negligent in exposing the body to an offending substance, such negligence should not defeat the claim. The only test is whether the injury is work related. Contrast this situation to an auto accident case in which a person cannot recover for injuries unless he or she proves that another person is at fault.
Second, the worker has the burden of proving that the injury is work related. The worker must produce medical evidence connecting the work exposure with the injury. In the workers' compensation setting, such medical evidence is almost always produced by the treating doctor, either by generating a report or by giving a deposition. If the claim has been denied by the insurance company and the treating doctor is unwilling or unable to provide such a report or deposition, the injured worker will not be able to prove that he or she has a work-related problem.
With these two principles in mind, let's consider the confluence of medical and legal terminology found in almost all workers' compensation systems.
WORKERS' COMPENSATION TERMS
Aggravation. 1. Recurrence or worsening of a once-stationary compensable condition without intervening accident or disease;
2. As a result of work activity or exposure:
a. manifestation of a latent, underlying condition which was previously asymptomatic; or
b. worsening of a manifest preexisting condition.
Compensability. Means the condition is covered under the workers' compensation law as an injury or disease which arose out of and in the course of employment. Relates to causation question.
Disabling Claim. Condition is considered disabling if:
1. Worker is required to remain off work during the healing period (temporary disability); or
2. If permanent disability (either partial or total) or death results.
Disability. An administrative or judicial evaluation of the patient's ability to perform the activities of daily living and/or work as affected by permanent medical impairment and by social factors such as age, sex, education, training, and work experience. Refers to an incapacity, because of the injury or disease, to earn the wage previously earned by the worker, or to perform past work. May also refer to loss or impairment of physical or mental function.
Impairment. Purely medical evaluation of loss or abnormality of psychological, physiological, or anatomical structure or function, including a specifically acquired altered immunological capacity to react, which does not remit nor is likely to remit after a period of reasonable medical treatment and rehabilitation.
Medically Stationary. No further material improvement would reasonably be expected from further medical treatment or the passage of time.
Occupational Disease. Disease or infection which arises out of and in the course of employment due to continued or repeated exposure to workplace hazards (e.g., dermatitis, asbestosis).
Occupational Injury. Injury arising out of and in the course of employment resulting from the unexpected results of exertion and strain or trauma of violent or external means (e.g., fracture, laceration).
Permanency. May refer to situation in which:
1. Signs of skin disease will continue to be present; or
2. Recurrence is inevitable with reexposure to allergens or irritants, making avoidance of offending substances essential.
Reasonable Medical Probability. Legal standard which must be satisfied for condition to be considered compensable. Means the likelihood that a given condition or illness was caused by the particular employment is greater than 50 percent. (Possibility implies a less than 50% likelihood that the condition was caused by employment.)
Scheduled Injury. Definition used in connection with disability ratings. Refers to injuries to body parts or organs specifically enumerated in statutory schedules (e.g., hands, arms, legs, feet, eyes, ears). Payments are fixed for loss of specified member or loss of function equal to partial loss regardless of effect on earning capacity.
Sensitization. 1. Medical definition: allergy.
2. Medico-legal definition: Refers to a worker's skin having become fragile or vulnerable to a specific substance or group of substances, not necessarily because of an allergic reaction, but which nonetheless requires avoidance of that substance.
Systemic. 1. Medical definition: Involvement of organ systems, as heart, lungs, etc.
2. Medico-legal definition: Entire skin surface is susceptible to reaction if exposed to the offending substance. Allergic contact dermatitis is an example of systemic skin disease; irritant dermatitis is not.
Unmasking. In the context of skin disease, refers to situation in which an atopic person, whose condition was previously latent, develops dermatitis as a result of the work environment which thereafter may become a persistent problem. (See Aggravation 2[a].)
Unscheduled Injury. Definition used in connection with disability ratings. Injuries or diseases affecting body parts not enumerated in the statutory schedules are considered unscheduled (e.g., back injuries, psychiatric problems). Disability is evaluated upon impairment of the whole person and requires evaluation of loss of earning capacity as affected by the physical impairment and social factors, including age, sex, education, training, and work experience.
The most important report a doctor provides addresses the question of whether or not the work exposure caused, at least in part, the dermatitic injury. Without such a report, the worker simply will not have a workers' compensation claim. A good compensability report must include the following:
The patient's occupational history. This means that you must be aware of the nature of the patient's job and understand what chemicals or other offending substances the patient was exposed to.
The relevant medical history. This should include the history of any prior dermatologic conditions, allergies, or atopy; the date of the first contact with the irritants or allergens; and a review of the present condition. It's important to note whether or not the patient has suffered any previous eruptions, in either the same or different work, and if the patient has improved with withdrawal from work and has suffered recurrence with occupational exposure.
Note off-the-job exposures or allergens and compare them to on-the-job exposures or allergens.
Discuss other cases with which you may be familiar or literature with which you may be familiar relating to the patient's problem.
Describe the patch tests applied and the results. Attach copies of the test results.
Diagnosis. Clearly state your diagnosis. You can indicate here whether this is work related and if the condition is irritant or allergic.
Conclusion. State your opinion as to whether or not this condition is work related. If you believe the condition is work related, explain your reasoning. If there are off-the-job exposures to offending substances, compare the degree and intensity of on-the-job versus off-the-job exposures. Discuss the relationship between preexisting skin conditions and the present condition, if appropriate. Explain if the present industrial exposure worsened, accelerated, aggravated, or unmasked the condition.
Indicate whether the claim is disabling. Indicate whether or not the patient should remain away from work during the recovery or, if appropriate, indicate that the patient can work but cannot work near certain substances. This is generally referred to as light duty work or restricted work.
Indicate the long-term prognosis. Is this an allergic reaction such that the patient must avoid all contact with the substance in the future? Or is it an acute irritant reaction that should subside without permanency?
Is the worker medically stationary or stable (i.e., has the worker achieved maximum medical improvement?)? In workers' compensation, those phrases generally mean the same thing, and the phrase you use will generally depend on your state laws. The phrases basically mean that no further medical improvement can be expected with either the passage of time or further medical treatment. Once the worker is medically stationary, permanent impairment can be rated.
Permanent impairment. You must address the degree of permanent impairment, if appropriate. It is at this stage that the distinction between impairment and disability comes into play (see "Workers' Compensation Terms"). It is important to keep in mind that impairment is a medical term and disability is a social/vocational term. (For example, a 60-year-old concrete finisher may develop a mild to moderate skin impairment but may be totally disabled because of his particular social/vocational factors of no formal education and having performed only this work throughout his life. However, a 60-year-old architect may have developed the same sensitivity and may also have a mild to moderate skin impairment, but may not suffer any disability because of his better education and ability to work in a setting which can be more controlled.)
In Section 11 of the report, it is important to discuss whether or not the dermatitis is allergic (systemic) or irritant (affecting only that part of the body that comes into contact with the offending substance).
Most American workers' compensation systems recognize, on one level or another, the American Medical Association's Guides to the Evaluation of Permanent Impairment.4 The Guides contain the criteria for evaluating permanent impairment of the skin and are accompanied by numerous examples.
In Section 11 of the report, it is important to note how the impairment affects the patient's work life. You should indicate whether or not the worker can return to his or her employment at all or in a restricted work capacity. If there are reasonable modifications the employer can make to accommodate the worker, suggestions from the treating physician are generally appropriate.
The following example is taken from a chart note that does an excellent job of relating the patient's allergic contact dermatitis to his work as a photography professor. Because the case was contested by the insurance company, the patient's attorney felt it necessary to follow up on the chart note and asked the doctor a series of specific questions, to which he responded.
In the chart note, see that the doctor paid particular attention to the question of the preexisting atopic condition and how it related to the developing allergic contact dermatitis.
The patient came to ask for help in determining what component of his long-time derrnatitis was allergic contact dermatitis compared to his life-long atopic dermatitis. He clearly has had atopic dermatitis from infancy.
He recalls that he had waxing and waning of his dermatitis and that it was better for the first few months when he was first married and moved here, but he always noted more irritation when exposed to photo-related chemicals. His testing had also shown allergy to cats, acacia trees, peanuts and many other allergens--
The reactions that he noticed to chemicals were relatively briefer in the past, but beginning 10 years ago, it seemed to take him longer to get over the insults. He notes that the onset was also sooner in the past, possibly within one to eight hours, whereas the onset now is 12 to 24 hours. This change in onset also began about 10 years ago and it was at that time that he began cutting down on his "own creative work" and he tapered off dark room work gradually until about five years ago when he consciously stopped the serious work. He was doing only occasional prints and that postponed dealing with his problem. Thus, he feels a qualitative change began in his dermatitis approximately 10 years ago and increased even more dramatically five years ago.
He also has made observations about the quantitative aspects of his previous work exposures. Prior to his working at City College and State University, his photographic developing was primarily in the gallon-sized range and required relatively little contact with the skin. When he began teaching, the magnitude increased five-fold; i.e., five gallons exposure per week and he also began working with dichromate and gum arabic mixtures which involved considerable contact with the hands and close exposure when viewing and applying these materials. The number of prints also increased considerably to perhaps at times 150 prints per day from the students versus eight prints on occasion at home when he would be printing. Also, with the teaching, he had to mix the chemicals himself and do all of the dark room work himself, including painting tables and cabinets with epoxy paint on the dark room sinks, etc. His work at the universities also expanded from 60 students originally to 175 students per quarter.
I explained to Mr. Smith that he has had the unusual condition of having two types of allergic hypersensitivity. He probably was born with atopic dermatitis which is sometimes referred to as an "intrinsic" dermatitis and then at some point later he developed the extrinsic allergic contact dermatitis to photo developers, chromate and possibly other materials as well. It appears that he had typical atopic dermatitis and, from the multiple positive skin tests, was extremely atopic. Probably his skin was sensitive to any number of irritants through the years as well. He occasionally noted this irritation throughout the time that he was working at City College and State University. I would estimate this was most likely an irritative phenomenon rather than an overt allergy because of the rapid onset and the very rare instances of immediate hypersensitivity to chemicals such as CD3, chromates, etc. Through the years of his work exposure, he always noted a clear temporal association with the days of the week when he was in class. Probably the critical change point occurred approximately 10 years ago when he began developing lesions that, rather than being brief, became much more lasting, consistent with allergic contact dermatitis.
Since his last appointment, I received a report of a consultation by Dr. Brown on February 8, 1991. Dr. Brown elicited the history that the patient first noted having allergic problem following exposure to photography chemicals in the 1960's and consisting of palmar vesicles with extension of the rash to the elbows and also extension on to the neck and face and occasionally into axillae chest and legs. A problem seem to be the interpretation of the term "allergic problem." It seem more likely that this was a flare of his atopic dermatitis, possibly exacerbated by chemical exposure but by no means evidence of allergic contact dermatitis, especially with the history of problems on the palm rather than on the dorsal surfaces. Improvement during vacation times is also no sure proof of allergic contact dermatitis, since atopic dermatitis often improves during vacations and removal from stress. Only in the past two to three years has the patient actually noted definitive problems with welting when chemicals were spilled on the arms, according to an evaluation by Dr. Brown. Part of the problem with Dr. Brown's evaluation is that he noted positive reactions to potassium dichromate and epoxy but did not see the strongly positive responses to the developers that we elicited at the time of path testing. There is also confusion as to the current diagnosis which he states is "contact dermatitis," which is congenital and not related to Mr. Smith's occupation. There is a problem here with definition of terms, and it is unclear whether he means irritant contact dermatitis or allergic contact dermatitis. Regardless, contact dermatitis is not congenital. In the next response as to etiology of the diagnosis, he states that the cause is the atopic dermatitis which is a congenital condition. There is also considerable question about his response to the third question, stating that exposure to potential vapors are not consistent with development of contact dermatitis and this simply is not true. Certainly, his overall condition has improved markedly since the patient has been avoiding these chemicals and at the present time he shows minimal evidence of any dermatitis. I certainly agree with Dr. Brown's suggestion that the atopic dermatitis can limit the patient's ability to work in the dark room directly with photographic chemicals due to irritation, but the question of allergic aggravation again is poorly defined. Dr. Brown was not aware of the fact that the patient had allergic contact dermatitis. It appears that he is referring to immediate-type airborne allergies often associated with dermatitis but probably irrelevant in the dark room.
In the follow-up letter, some of the questions might seem redundant. Since a workers' compensation judge was to review the medical record in order to determine whether or not the condition was work related, the patient's attorney felt that the condition and its cause needed to be clearly stated. It was also important to show that the reports of the doctors retained by the insurance company were considered and, if appropriate, refuted:
Dear Mr. Attorney:
I am responding to your specific questions regarding the diagnosis of Mr. Smith's skin condition:
1. Please clarify that allergic contact dermatitis is a distinct entity from atopic dermatitis.
Definitely allergic contact dermatitis is a distinct entity. It is a specific immunologic reaction to a chemical applied to the skin, whereas atopic dermatitis is a non-specific hyperactivity to all manner of exacerbants, including infection, emotional stress, irritants and allergens.
2. Please indicate that the allergic contact dermatitis has actually been caused by his work-related exposures and is therefore a completely work-related condition. Please indicate that you have reviewed the file, you have reviewed Dr. Milten's and Dr. Butter's reports, and it continues to be your strong opinion that Mr. Smith's allergic contact dermatitis was caused by his work exposures.
i. The patient has allergic contact dermatitis, documented by patch testing, to chemicals that are present in his work environment.
ii. His dermatitis continued whenever he was exposed to his work chemicals.
iii. The dermatitis remitted when he avoided contact with those chemicals. This is definitive evidence for work-related allergic contact dermatitis.
I have reviewed the consultations by Drs. Milton and Butters. Dr. Butters apparently was not aware of the patch testing information showing allergic contact dermatitis. Dr. Milton recognized the diagnosis of allergic contact dermatitis and atopic dermatitis. Both consultants demonstrated some ambiguity in distinguishing between allergic contact dermatitis and atopic dermatitis. Atopic dermatitis is a condition that usually comes on early in life and, from the patient's history, this form of dermatitis was clearly active during his early years. This is a constitutional condition and the predisposed individual is subject to recurrent exacerbations of atopic dermatitis for many years, sometimes throughout life. Thus, Mr. Smith had both conditions and that is quite unusual. The fact that Mr. Smith's dermatitis remitted when he began avoiding the chemicals that caused his allergic contact dermatitis indicates that the previous, constitutional atopic dermatitis is not presently active.
3. My understanding is that you have treated Mr. Smith for approximately one year now, and he essentially has no atopic dermatitis.
See above. I have treated Mr. Smith since February 4, 1992. I cannot say that he has no atopic dermatitis, since it is a lifelong constitutional trait, but he apparently has no active atopic dermatitis at the present time (I have not seen the patient since June 2, 1992).
4. Was Mr. Smith taking steroids to control his work-related allergic contact dermatitis?
The best treatment of work-related allergic contact dermatitis is avoidance of the specific allergenic chemicals. Since the diagnosis of allergic contact dermatitis had not been made at the time he was treated with steroids, that therapy was apparently directed at a presumptive diagnosis of atopic dermatitis. In retrospect, Mr. Smith had allergic contact dermatitis and the steroids were being given to control that dermatitis.
5. After treating Mr. Smith for a year, please explain how your treatment and his response to that treatment confirm your diagnosis. In other words, has Mr. Smith improved once he was restricted from working around chemicals?
See above (answer to #2). Yes, Mr. Smith has improved after restricting his contact with chemicals to which he has contact allergy.
If you have other questions or need clarifications of the above answers, please feel free to call on me.
The following example is from a slightly different perspective. The doctor who authored the report was asked to provide a consulting opinion to the state insurance fund. From the report, it can be seen that the examining doctor reviewed the treating doctor's records and noted the treating doctor's patch testing. In her report, the consulting doctor indicates that she patch-tested the patient again, and then clearly points out that the chromatic exposure at work was the cause of this patient's allergic contact dermatitis.
Dear Ms. Claims Adjuster:
I was happy to see the patient on June 30, and July 2, 1994. You know that he first injured his right thumb in October of 1992 while working as a cement finisher. He had worked as a cement finisher since September, 1991. The original injury "never healed" and developed into an extensive hand eczema with patches of eczema occurring elsewhere on his body as well. It became such a severe problem that he finally stopped working as a cement finisher on December 28, 1993, and he has not worked since that day. His back was involved in July, 1993, after he was patch tested and it then cleared for six months. The involvement of his back returned approximately a week ago.
During this period of time, the patient has been cared for by Dr. Jones, who has documented his chromate sensitivity and has treated him with a variety of topical and systemic corticosteroids. Dr. Jones has frequently worked with your office in an effort to secure retraining for the patient in a chrome-free environment,
The patient has a father with asthma and hay fever but no eczema. He himself has never had any asthma or hay fever, nor did he have eczema as a child, according to a conversation he had with his mother while he was under my care.
On the 30th of June, the patient had a patchy, nummular, eczematous dermatitis in several spots on his hands. His back was involved diffusely with plaques of a serpiginous, scaling, eczematous looking eruption which was KOH negative on several tries. His feet and legs, scalp and face were all clear.
I was certainly satisfied with Dr. Jones's records and presentation as an example of a chromate contact dermatitis. I did, however, repatch him to nickel, chrome and cobalt in an effort to document this, as you evidently were seeking a second opinion. I saw the patient a second time on July 2nd and Dr. Jones has seen him on July 1st. He had an exquisitely positive chromate patch which I have documented with photographs and will include one of them with this letter, but it is possible that his cobalt will come up. He is instructed to return on July 7th if either of these two patch tests are positive, and I will so inform you. Dr. Jones biopsied his back on the first of July to rule out the unlikely possibility that he was developing psoriasis as well as eczema, and we will include a copy of that biopsy report for your information as well. The real issue at stake here, however, is what to do with the patient's chromate contact dermatitis. Men who work in the cement business who become sensitive to chromate have one devil of a time ridding themselves of this problem. Typically, chromate contact dermatitis lasts far longer than exposure to chromate. By far longer I mean years. It is not unusual for these men to develop plaques of eczema on many parts of their body where chrome never touches them. This seems to be one of those allergic contact dermatitis problems that in a way is "systemic." Despite the most conscientious efforts of these people to avoid chrome in their work and their personal environments, they do indeed tend to continue to have difficulties despite chrome avoidance. It should be pointed out that chrome can be found in a great number of places in our environment and for your information as well, I will include the sort of information sheet that we give to our chrome sensitive patients. This sheet does not mean that chrome is definitely found in all of these areas, but that it may be.
In summary then, the patient is likely to have contact dermatitis on his hands and here and there on his body for many years to come, no matter what line of work he engages in. This does not mean, however, that he cannot work. Indeed, if he works in as chrome-free an environment as one can find and if he will avoid very wet work, he is likely to do as well as can be expected. He may, from time to time, have acute flare-ups of his eczema, but this can be treated with systemic and topical corticosteroids and he can continue to work. Some sort of office work, warehouse work, maintenance work, or security work would be ideal. Surely, the industrial hygienist employed by the workman's compensation people could assist in this regard.
The final example involves another request for consultation by the state insurance fund. Note that the physician initially indicates that additional information is needed. This is important to ensure that the physician's report is complete and that she arrived at her opinion with full knowledge of the medical history.
Note further that the doctor indicated that there was "probably" a causal relationship. Remember that reasonable medical probability is the legal standard that must be satisfied. Possible or possibilities are generally not considered legally significant. Probable simply means "more likely than not," a 51% chance or more. Scientific certainty is not required in the legal arena.
Dear Mr. Claims Adjuster:
I have reviewed the information you provided me concerning Mr. Turner. Several important pieces of information are absent from that report:
1. Is Mr. Turner an atopic, i.e., does he or do members of his family have asthma, hay fever or eczema in their present or past medical histories?
2. Does Mr. Turner have varicose veins in either his right or left leg?
3. Had he ever had any leg edema or leg eczema before his 6/20/92 injury?
4. Has the possibility of the use of topical agents (other than steroids or Tinactin) on his legs after the 6/20/92 injury been carefully excluded?
If the answers to my questions 1 through 3 are "No" and to question 4 is "Yes," then I would answer the question you put to me as follows:
Yes, I would say there is probably a direct causal relationship between Mr. Turner's 6/20/92 injury and his present "eczema condition." The lateral malleoli are particularly prone to develop stasis dermatitis, especially in the setting of deep tissue injury and longstanding peripheral edema of the sort described in your report. Once this condition begins, it tends to be chronic, to be associated with further local injury, to frequently develop "flare ups" which we seldom explain very well, to become secondarily infected and often sensitized and, finally, to become associated with extensive patches of eczema on the body (so-called auto-eczematization or "id" reactions). Again, we don't explain this situation very well, but it is a definite and reproducible clinical experience. If Mr. Turner had no prior eczema or a history of it, no varicosities, no peripheral edema, then his crushing leg injury on 6/20/92 could have permanently altered the deep tissues in his left leg under the supramalleolar skin in such a way that he may have trouble with stasis dermatitis~is and even stasis ulcers there for the rest of his life.
It is very unlikely that an underlying medical problem is causing this difficulty, unless, of course, Mr. Turner is a roaring atopic, and even then his atopy would probably be only partially responsible.
From my above comments you can tell that the precise etiology of stasis dermatitis is not perfectly understood. However, tissue injury with consequent edema, vascular compromise and secondary infection are all factors which participate in the development of this chronic problem.
Leg elevation, lubrication, support such as an ace wrap, topical steroids for eczema, and systemic antibiotics for infections should all assist Mr. Turner in maintaining a leg that he can work on easily, but he is likely to have medical problems related to this difficulty for many years to come.
I do hope my comments are helpful. Don't hesitate to contact me further.
Letters discussing occupational skin disease obviously vary greatly among authors and depending on whether the report is rendered for a patient or as a consulting exam. However, addressing most, if not all, of the points raised here will go a long way toward addressing questions that insurers, attorneys, and judges will have concerning occupationally related skin disease. Next to providing treatment for your patient, producing a thorough, well-written report detailing the work-related problem may be the most important service you can give.
1. This chapter is based on and quotes extensively from Goldstein A: Writing report letters for patients with skin disease resulting from on-the-job exposures, Dermatologic Clinics 2:631-641, 1984. The "Workers' Compensation Terms" and the section "Causation Questions" are from this article.
2. The medical reports used as examples were authored by Dr. Jon Hanifin and Dr. Francis Storrs, both professors of dermatology at Oregon Health Science University in Portland, Oregon.
1. Adams RM: High risk dermatoses. J Occup Med 23:829-834, 1981.
2. Adams RM: The diagnosis of occupational skin disease. In Maibach HI, Gellin GA (eds): Occupational and Industrial Dermatology. Chicago, Year Book Medical, 1982, p2.
3. American Medical Association: Guides to the Evaluation of Permanent Impairment, ed 2. Chicago, American Medical Association, 1988, p 2.
4. Larson A: The Law of Workmen's Compensation. New York, Matthew Bender, 1982-1983, section 1, 6, 12, 29, 37, 41, 57, 58~,83 and Appendix B, Tables 2, 2A, 6, 13, and 15.
5. Whitmore CW, Adams RM: Medicolegal aspects. In Adams RM: Occupational Skin Disease. San Francisco. Grune & Stratton, 1983, pp 179-188.