Re-opening Your Claim
By Dennis R. Kurth, Associate Attorney
Certified Workers' Compensation Specialist
One of the best features of the Arizona Workers’
Compensation law for claimants is the right to reopen a closed case for active
medical treatment and temporary compensation anytime during the injured
worker’s lifetime. The statute requires
that, in order to reopen a case, the claimant must prove that he/she has some
new, additional or previously undiscovered condition and some objective,
positive findings on clinical examination or imaging studies that are related
to the original injury and were not present when the case was closed.
The ability to reopen an old case is very important
to the injured worker whose knee has deteriorated over time and has developed
severe arthritis since an industrial meniscectomy or whose back or neck has
developed arthritis (‘adjacent level disease”) above or below the level of a
fusion surgery. In these examples there
is usually a chain of causation from the original injury and surgery to the
subsequent degenerative condition. Such
connection must, of course, be established by competent medical evidence.
Once these cases are reopened the claimant is able
to have treatment, including surgery, completely paid by the workers’
compensation carrier and can again receive temporary and later, permanent,
compensation indemnity benefits paid for any attending disability. It goes without saying, of course, that
carriers usually resist reopenings and put claimants to their full burden of
proof.
While generally, one might think that a subsequent
and independent traumatic injury to some body part previously injured on the
job and treated surgically might not sustain reopening of the worker’s compensation
case, that is not always the case and workers’ compensation practitioners would
do well to acquaint themselves with the law in that regard.
In a seminal case[1]
from many years ago an injured worker tore a meniscus in his knee and underwent
a meniscectomy. Several months later,
while playing frisbee with his friends, the claimant tore his anterior cruciate
ligament and needed surgical reconstruction. The carrier denied liability for
the torn ligament and surgery.
The claimant’s doctor testified that, while playing
frisbee caused the torn ACL, it would not have occurred had the knee not been
weakened by the meniscectomy. He also,
along with the claimant’s physical therapist and frisbee teammates, testified
that it was not unreasonable for the claimant to have been playing frisbee
despite the prior surgery.
According to the Arizona Court of Appeals, the
claimant had established a right to have the ACL reconstruction surgery covered
under the industrial claim even though the industrial injury did not cause the
ACL tear as long as it was established that the weakness of the knee from
surgery made it more susceptible to further injury and the claimant’s
subsequent activity was reasonable, i.e., not something that his doctor told
him not to do.
The Klosterman case, though not technically a
reopening case, is more commonly applicable in reopening situations where there
might be a long interval between the industrial injury and surgery and the
subsequent injury. In the context of a
prior industrial back surgery, for example, a conscientious practitioner would
do well to inquire whether a new, traumatically-induced herniated disc above or
below the surgical level, ostensibly due to say, bending over to pickup a
folding chair for example, might have been partially caused by a weakness of
the spine due to removal of some part of the vertebrae in the prior
laminectomy. If so, reopening of the
workers’ compensation case might be indicated and a petition to reopen should
be filed.
In these subsequent injury situations, it is
important to realize that an intervening, traumatic injury off work does not
always break the chain of causation from the original injury and, in situations
like those described above, some contact with the attending surgeon to
investigate the matter is called for.
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