New Rule for Disclosure of Nurse Case Manager’s Notes?
One of the several issues at Formal Hearing in Wayne LaHaye v. Kathy’s Caregivers was the compensability of the injured worker’s left hip condition. The accepted injury was a back claim, stemming from a work-related lifting and twisting event. But when the symptoms (back, buttocks, groin) persisted despite treatment, the employer paid for diagnostic hip injections under the accepted back claim. (This happens in the course of claims all the time; when an injured worker’s right upper extremity symptoms, for example, prompt evaluations by both shoulder and cervical specialists in an effort to identify the source of pain). Come to find out, claimant had severe osteoarthritis of his left hip and went on to have a total hip replacement. He also went on to have medial branch blocks and radio frequency ablations for his unresolved lower back pain. Meanwhile, though, the employer had filed a Form 27 to discontinue any further treatment for the hip on the basis of its expert’s opinion that the need for a total hip replacement was not causally related to the twisting event, which he said neither caused nor aggravated the underlying osteoarthritis. That opinion was in part based upon the absence of evidence that claimant had complained of hip pain contemporaneous with the original twisting event.
The rules require employers to provide all relevant evidence “including both supporting and countervailing evidence” to support a proposed discontinuance of benefits, and the employer properly submitted the medical records. One week later, the employer supplemented its filing and produced the nurse case manager notes. Those notes document that claimant did complain of hip pain within several weeks of the back injury, which clearly counted as “countervailing evidence” given the employer’s expert opinion. The Form 27 was nonetheless approved by the Department as reasonably supported.
At Hearing, claimant argued that the Form 27 was invalid despite the Department Specialist’s approval at the informal level, and that he was entitled to disability benefits retroactive to the effective date of the discontinuance as a matter of law. ALJ DiBernardi found that the delayed filing was harmless error because the Specialist in fact had access to the nurse’s notes at the time she ruled on the Form 27. Thus, she declined to undo the discontinuance on the procedural technicality. However, she did not reject the argument on its face. In fact, she made a point to limit her finding of harmless error to the “narrow circumstances” of the case.
What does this mean? Well, to those employers that review nurse case manager notes to investigate whether they contain information relevant to whatever dispute surrounds a proposed discontinuance, the ruling has no impact because that practice is already being followed. However, this seems the probable exception to the rule of most employers, adjusters and attorneys for whom the nurse’s notes are probably not regularly reviewed or otherwise considered significant in the typical case when filing a proposed discontinuance of benefits. For many of us then, the ruling necessarily has to prompt a change in practice because if those notes contain “relevant evidence” later discovered, under LaHaye an approved Form 27 could be rescinded on procedural grounds alone without consideration of whether the discontinuance remained reasonably supported, even taking into account the new evidence.