As we all know when a workers’ compensation claim is brought forward, the claimant needs to prove two basic points: (1) that he or she has an injury or illness and (2) that the illness or injury was obtained while in the course and scope of his or her employment. For a claim that is accepted from its inception, the above two points are generally easy to find in the initial reporting to the client However, the aspect that is generally overlooked is that a mere report of injury or illness is not enough to establish a claim – a report of prima facie medical evidence is required.
As per the New York Code, prima facie medical evidence is a “medical report referencing an injury, which includes traumas and illness . . . .” (12 NYCRR 300.1). Furthermore as discussed in, Mohawk Correctional Facility, WCB # 60609076 (3/16/07), “[a] finding of PFME is properly made when there is medical evidence in the file which contains a sufficient history of how the injury occurred, a diagnosis for the injury, and a medical opinion stating that the injury is causally related to the claimant’s employment.”
Therefore, it is essential that the initial medical documentation not only reports something similar to “John hurt his ankle on 1/1/18,” but also diagnoses an ankle contusion which occurred when he twisted his ankle tripping over an extension cord in his office.
It is often forgotten that prima facie medical evidence is not only required for controverted or denied claims, but also for accepted claims.
For example, there have been many times when an adjuster reports in their directives that this is an accepted claim arising from an employee tripping at work and injuring his ankle, but this is an accepted claim for the ankle, knee, and back. As defense counsel, my first reaction is to check the medical evidence submitted to the Board file to determine if there is PFME for each site mentioned. There are many scenarios when a claimant will report pain to many sites initially and will never attempt to follow up with that site in the future.
A medical report only diagnosing pain is another common scenario where strategically there is an opportunity to argue there is no PFME. As noted in Woodworks Construction Co. Inc. (G1718466 11/27/2017) when no reports “contain an assessment of trauma or injury to the [site in question], beyond passing references to pain, clarifying medical will be needed.
In a practical sense, the argument that pain is not a diagnosis for PFME will work only in front of some Law Judges. Generally, if the Law Judge agrees with the argument of no PFME, the claimant will be required to obtain a clarifying medical report. Many Judges will make a finding of PFME and allow for the issue of the establishment of the site to be determined by further litigation. However, if you are continuing to deny the additional site in question, the argument that pain is subjective and not a diagnosis is an argument to be raised regarding why this site should not be found to be causally related or established in the claim.
Another strategic approach to handling additional sites in reference to PFME is to conference the claim beforehand with claimant’s counsel to determine what sites are being raised. In many different types of compensation accidents, especially slip and falls, claimants will cut up or bruise their hands in addition to fracturing an ankle or injuring a knee. However, due to the fact it was a mere scrape, they were not planning on raising that site. In that scenario, we would not want to accept the additional site first. Furthermore, there are scenarios where claimant’s counsel will concede that one or more of the sites they are alleging does not amount to PFME.
As such, even if a claim is accepted, there is also reason to understand whether there is PFME for each site that the claimant is alleging. When a claim is first filed and there are multiple sites alleged, it is always important to determine if there is prima facie medical evidence for each site. If there is a question regarding whether there is sufficient PFME for a site, we are always willing to analyze the medical and give our recommendation.