In order to win a denied workers’ compensation claim, the claimant must show the alleged injury arose out of and in course and scope of employment. This burden of proof usually requires the submission of medical evidence from a doctor or other health care provider relating the injury to the work accident. South Carolina law [Section 42-1-160(g)] defines “medical evidence” as “expert opinion or testimony stated to a reasonable degree of medical certainty, documents, records, or other material that is offered by a licensed health care provider.” For years, the use of a “check the box” questionnaire has been used by workers’ compensation claimants’ attorneys. The letter format is much less expensive than scheduling a doctor’s deposition, and treating physicians have become used to receiving these requests for virtually all of their workers’ compensation patients. However, as claims are increasingly being defended more aggressively by insurance companies, many are now starting to question their sufficiency as “medical evidence.”
Questionnaires are customarily used in claims where there is a dispute as to the causal relationship of an alleged injured body part; where there is a question of whether the claimant has reached maximum medical improvement; whether additional medical treatment is necessary; and/or where a prior medical opinion has been changed or even reversed. The questionnaires themselves typically consist of three or four short statements regarding the issue(s) in dispute and then provide “boxes” the option to check “yes” (to agree) or “no” (t0 disagree) with the question posed. However, the questionnaires almost never seek further elaboration from the health care provider of how the opinion was reached or what objective medical evidence was used to base the opinion offered. Hence, the dilemma. While the claimant has technically complied with the statute and produced an opinion from a health care provider, stated to a reasonable degree of medical certainty. However, there is no real foundation offered for a hearing Commissioner to consider the sufficiency of the opinion.
To date, the Commission has not issued any regulation nor given guidance on the use of these medical questionnaires. For now, the questionnaires remain admissible as “medical evidence” at a hearing. But, it appears that the sufficiency and probative value of “check the box” questionnaires will be the subject of defense challenge in the future. Better make sure your lawyer’s questionnaire is clear and shows a basis for the opinion being offered.
Robert J. Reeves of Reeves, Aiken & Hightower LLP has practiced workers’ compensation law for over 23 years. His first seven (7) years was as an insurance defense attorney. He has proudly represented injured workers and their families in York County since 1996. Prior to becoming a lawyer, he was a Registered Nurse (RN). Given his insurance defense and nursing background, Mr. Reeves understands and has successfully prosecuted all types of complex, serious injury claims. He stands ready to fight for you and your family during this difficult and scary time in your life. Call him directly today on his mobile phone 803-554-4157 for a private consultation about your particular circumstances.