What Not to Say to a Workers’ Comp Doctor

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From one perspective, it doesn’t matter what a job injury victim says to a workers’ comp doctor. Most doctors only listen to most patients for about eleven seconds. So, no matter what you say, the doctor most likely isn’t listening. From another perspective, doctor-patient conversations mean a lot. Lying to a doctor is evidence of workers’ compensation fraud. Most authorities in most states don’t need much evidence to launch full-blown fraud prosecutions.

An open and honest relationship with a doctor, even a company doctor, is the best way for these injury victims to get back on the job. Doctors need to know what’s wrong with their patients before they can properly diagnose and treat them. So, saying the wrong thing isn’t just detrimental to your legal claim. It could also be detrimental to your personal health.

Be Honest About Your Medical History

My mother always told me “be sure your lies will always find you out.” I’m not sure if that’s an actual proverb or something she came up with on her own. Either way, the statement was generally true. It’s nearly always true in this context.

Many job injury victims aren’t forthright about pre-existing medical conditions. They believe the insurance company won’t pay in these cases.

That belief is understandable but downright wrong. The eggshell skull rule, a well-established legal principle, applies in workers’ compensation cases. Some people have eggshell skulls, glass jaws, genetic predispositions, or other inherent physical weaknesses. No state allows insurance companies to use a pre-existing condition against a victim in court. That’s like bullying a kid in the schoolyard because he’s shorter than the other kids.

Let’s go back to my mother’s aphorism. Almost all hospitals now have access to electronic health records. After a few keystrokes, a doctor sees your entire medical history. S/he instantly knows you lied, and all possibility of trust evaporates.

Be Honest About Your Symptoms

In a nutshell, job injury victims shouldn’t exaggerate their symptoms. They also shouldn’t go too far the other way and gloss over them.

Some victims exaggerate their symptoms, usually to extend the injury recovery process and extend their financial benefits. Once again, doctors usually detect these lies. Once again, trust quickly evaporates.

These financial benefits usually include medical bill payment and lost wage replacement. If their injuries were work related, victims need not prove negligence or fault to obtain these benefits. Some victims have additional legal options.

Glossing over symptoms is much more common. That’s especially true if the victim sustained a head injury. The brain conceals its own injury symptoms. Additionally, glossing over symptoms is often a natural reaction. Most victims are anxious to get back to work, even if that means saying the wrong thing to their workers’ comp doctors.

On a related note, victims shouldn’t lie to themselves about their symptoms. Treatment delay usually lowers the chances of a full recovery.

Does Surgery Increase My Workers’ Comp Settlement?

Major surgery normally increases workers’ comp settlements. Minor surgery might not affect them much, if at all.

Major medical procedures aren’t just costly. Major surgery also involves a longer recovery time, which means additional lost wages. Physical therapy is also longer, more difficult, and more expensive in these situations. Other ancillary medical costs, like prescription drugs, also often go up as well.

Workers’ compensation pays both wage replacement benefits and medical payment benefits, as outlined below.

These benefits are available, but insurance companies don’t hand them out like toys at Christmas. In these situations, insurance company lawyers typically argue that the surgery was unnecessary, or at least over the top. To counter these arguments, workers’ comp lawyers usually partner with independent doctors who give Administrative Law Judges the straight dope.

Benefits Available

A couple of workers’ compensation defenses are available. Usually, however, insurance company lawyers cannot contest fault in these cases. But they can, and do, contest the amount of damages the victim should receive.

Temporary and permanent disability lost wage benefits are based on the victim’s average weekly wage (AWW). Most insurance companies calculate lost wages the way schools calculate grade point averages. They take the worker’s last five or six paychecks and divide by five or six.

But the AWW must also account for future wages the victim loses because of a job-related disability. If Max breaks his arm and he will miss three weekends of possible overtime, he deserves compensation for those losses.

As for medical bill payment, many insurance companies use boilerplate tables to determine what’s “reasonable.” THese tables are usually based on large amounts of data. Usually, such data collection makes these calculations more accurate. But in this case, it makes these calculations more inaccurate.

Not all broken arms are the same. Some victims require extensive surgery, and some just need casts. Additionally, not all victims respond to physical therapy at the same rate.

What Kind of Drug Test Does Workers’ Comp Use?

The answer to this question varies significantly among different insurance companies and in different states. The most reliable drug tests are also the most expensive ones, and we all know how stingy insurance companies feel about spending money. Additionally, some drugs are legal in some states, but not others. As of November 2023, about a dozen states, mostly in the West and Northeast, have legalized recreational marijuana.

Very few states require injured workers to take drug tests. Workers’ compensation is no-fault insurance. Thus, strictly speaking, if the injury was work-related, it doesn’t matter if the victim was clumsy, high, or anything else. In fact, the Occupational Safety and Health Administration forbids drug testing in these situations, if the employer requested the test to retaliate against the employee.

Nevertheless, some states require them. Taking drugs is a pre-accident choice. Additionally, some insurance companies flatly don’t pay benefits in these situations. Some of the most common workers’ compensation drug tests are outlined below. Even the weaker ones are almost impossible to “beat,” unless the employee cheats.

Breath Tests

These tests are usually only available for alcohol and, in a few cases, marijuana. Breathalyzers indicate current impairment but not past use. Not many employers use these tests, partially because they’re so limited, and partially because most employers don’t have spare Breathalyzers laying around the office.

Urine Tests

Peeing into a cup is the cheapest, most effective, least invasive, and most common type of drug test. It’s also the only kind of drug test that federal law approves of.
Alcohol and most other substances linger in urine for about twelve hours. So, unless job injury victims take urine tests almost at the same time as they report their injuries, the tests are completely unreliable. A later test only proves the victim was high, not that the victim was high at the time of the injury.

Saliva Tests

These tests, which are also called oral tests, are almost as cheap, reliable and non-invasive as urine tests. Usually, an FDA-approved technician swabs the victim’s mouth. So, it’s very difficult to cheat on this test. The lookback period is a little longer as well. Most saliva tests detect most substances for up to forty-eight hours.

Swab tests also have additional moving parts. The technician, not the employer, sends the sample to a lab. Therefore, a lawyer can challenge a positive result based on the slightest irregularity. Generally, where there’s smoke, there’s fire.

Hair Tests

In some ways, hair tests are the most reliable drug tests. They detect almost any drug, including prescription drugs. Most hair tests also have ninety-day windows. Additionally, a technician usually plucks a hair. These two things together make it almost impossible to cheat.
In other ways, hair tests are the least reliable drug tests. At best, they’re about 50 or 60 percent accurate. The accuracy rate for some substances, notably amphetamines and methamphetamines, is substantially lower. As a result, at appeal hearings, workers’ compensation lawyers almost always convince Administrative Law Judges to throw out these test results.


Picture of Bret Thurman

Bret Thurman

Bret is a former lawyer and full-time writer who knows how to simplify complex topics. He received his law degree from the University of Texas at Austin. For over twenty years, he handled a wide variety of cases, including criminal defense, personal injury, family law, and consumer bankruptcy.

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