By Judge Brian Addngton, Gray
If you’re Gen X or older, you likely remember the Vicks Formula 44 cough syrup commercial’s famous line, “I’m not a doctor, but I play one on TV.”
The actor in that commercial was Peter Bergman, who played Dr. Cliff Warner on “All My Children,” an ABC soap opera. I’m not sure why the ad was so successful, other than his good looks, charm and frank admission that he was totally unqualified to recommend a cough syrup. Consumers took his advice.
It’s sort of a funny memory, and I’m sure it made Vicks a lot of money. But in the real world, it’s probably a better idea to take real advice from real doctors whenever possible. Especially if you’re a workers’ compensation patient.
Of course, no one, not even a workers’ compensation judge, can make an injured worker do what the doctor asks if the injured worker doesn’t want to. But going rogue can cause problems for the injured worker.
The Worker’s Compensation Statue says an injured worker “shall” accept the medical benefits it affords. Also, a panel-chosen physician’s recommendations are presumed to be medically necessary to treat the injured worker. An injured worker’s benefits may be suspended for failing to comply with physician requests.
This doesn’t leave the injured worker without options. An injured worker can request a second opinion on surgery recommendations and prescribed pain management plans. An injured worker may also pay for an independent evaluation and present findings from the exam to the employer and the panel physician for consideration.
Generally speaking, however, what an injured worker shouldn’t do is treat himself. And if the worker isn’t taking the doctor’s advice, she needs sound reasons for doing so. I write this in consideration of a pair of cases.
The first is Guill v. Aetna Life & Cas, Co., a 1983 case. Guill was injured at work and received authorized medical treatment for back pain. This eventually included injections, which the doctor instructed the worker’s wife to give him at home. When this didn’t ease his pain, the doctor referred him to an orthopedic specialist.
The orthopedist eventually learned that his wife was still giving him the injections. The orthopedist told them to stop, but he didn’t. The wife attempted another injection several weeks later and accidently penetrated an artery in his arm. This resulted in gangrene and a partial amputation, for which he sought additional workers’ compensation benefits.
The trial court denied any benefits for his arm because the worker’s actions weren’t part of the recommended treatment for the workers’ compensation injury. The Guills’ actions were an “independent intervening cause” of the injury. He appealed, but the Tennessee Supreme Court affirmed.
On the other hand, a more recent case, from the Appeals Board, suggests that not following a doctor’s instructions is acceptable only when the worker credibly testifies as to sound reasoning for her actions.
In Boutros v. Amazon, the trial judge awarded past temporary total disability benefits based on the authorized treating physician’s time off work on a C-32. This included a period where a referral physician recommended an injection that the injured worker declined. That doctor also noted “symptom magnification” on her part. She also missed an appointment with a pain management physician and said that recommended physical therapy was too painful.
On appeal, the employer argued she was “medically noncompliant.” The Appeals Board held that the employer didn’t raise the argument at the compensation hearing, so it was waived.
But even if it weren’t, the Board went on to reject the argument, writing:
“Employee testified that she failed to attend or was late to medical appointments because her prescribed medications made her drowsy and unable to drive safely. She testified that she declined an injection because she would not be able to use her arm to drive home afterward, but that she attempted to return the following day to receive the injection when someone would be available to drive her. Finally, Employee testified that she had difficulties with physical therapy and that it made her symptoms worse. The trial court heard these explanations and found them to be reasonable. We cannot conclude the preponderance of the evidence weighs against the trial court’s determinations in this regard.”
The Appeals Board released this opinion in February, and the employer appealed to the Supreme Court Special Workers’ Compensation Panel. Stay tuned. There’s another reference that only Gen X and older will get.
So, injured workers, the safest course probably is to always take the worker’s compensation doctor’s advice. Don’t be Peter Bergman. Or Debi Morgan (Dr. Angie Hubbard, also on “All My Children.” Or even my wife’s favorite TV doctor, Rick Springfield (Dr. Noah Drake on “General Hospital”). Yes, we Gen Xers watched a lot of soap operas back in the day. And if you disregard your doctor, you’d better have good reasons for doing so, that you’re willing and able to credibly explain to a judge.