Academy of Chiropractic’s Doctors PI Program

Lawyers & Medical 
Narratives #60
Office System #28



From the Desk of :
Mark Studin DC, FASBE (C), DAAPM, DAAMLP

“Removal from Work and Disability”

 
Taking your patient out of work or school




New York has a serious injury threshold law that is perhaps the narrowest in the nation. Meaning, that if a patient has met any one of these standards, it will meet or exceed the needs of the courts for serious injury in any state. The law states:

Article 51 of the Insurance Law provides that a plaintiff in a personal injury action arising out of negligence in the use or operation of a motor vehicle must establish that he/she has incurred a basic economic loss exceeding $50,000 or must establish that he/she has suffered “serious injury.”

Insurance Law § 5104(a), (b). Serious injury is defined as personal injury which results in one of the following: 

• Death 

• Dismemberment

• Significant disfigurement 

• Fracture 

• Loss of a fetus 

• Permanent loss of use of a body organ, member, function or system 


• Permanent consequential limitation of a body organ or member


• Significant limitation of use of a body function or system 


• Medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.


For this consultation we are going to focus on loss of work. 

One of common denominators of both the courts and Colossus is being unable to work and having it documented and removing your patient from work is often a “double-edged sword.” In addition, how you document is critical.


Most doctors “under – recommend” the patient to not work for a period of time. They often fear that the patient is either exaggerating, malingering or seeking to get disability to sit home and do nothing. As a result, doctors have become historically “jaded” and overlook the importance of either bed rest or being removed from a physical and/or emotionally stressful environment to enhance the healing process.


The next question that arises is what constitutes a valid clinical reason for removing a patient from their occupation. The answer quite simply is either one of pain or biomechanical limitations and that becomes a clinical decision of the treating Dr. to determine the best course of action to realize maximum medical improvement (MMI) as soon as possible. For me, it was always persistent pain statically or upon mild to moderate provocation (the affected body part pushing against my hand). The return to work decision was based upon the same parameters and always served me well.


A potential problem arises when your patient is unable to work and they either ignore or refuse to accept your recommendations for either economic, political or family reasons. It is during those times I mark on the chart that the patient has taken action against “AMA” or against medical advice. Since this is an accepted acronym you must use the word “medical” in your notes.


In addition, if the patient is reporting to you that they are not working and you write the disability note you MUST have them sign or initial your notes by your comments of them stating that they are not working. The absence of their initials or signature on your notes makes you liable for any disability benefits paid should they be lying. With their initials or signature, lying or not you are protected.


Based upon the one section of the New York State statute in order to meet “threshold” your patient must be out of work a minimum of 90 days during the first 180 days in order to be considered seriously injured. New York however, as you can see above has other parameters to determine serious injury. This too, is the scenario in almost every state; there are many parameters to determine serious injury inclusive of pain, loss of function, permanent loss of use of function or an organ, etc.


However, not being able to perform an injured person’s usual and customary daily activities inclusive of work is a very large part of every court’s determination of serious injury in the United States as well as a large part of the Colossus determination of the valuation of a case. Therefore, when clinically indicated it is critically important that you consider removing your patient from work and/or school for as long period of time is you be necessary to help them fully recovered without causing exacerbations or aggravations of their current condition. You also must carefully document in your notes your clinical determinations regarding work and school limitations.


Work loss should be a separate section in your narrative and should be part of the conversation with attorneys when communicating with them about the tools to utilize to help your patients get well that are currently impactful in the medical – legal environment. AND……..


Never, never, never, never, ever remove the patient from work simply because it’s in the best interest of their case and you want to make a lawyer happy and to ensure the patient wins their legal case. This is crossing the line and should never be done. It is also grounds for me terminating my relationship with you should that come to light as I feel strongly about having ethical relationships at every level of my life and I’m sure you feel the same way.