The North Dakota State Legislature is considering a bill that could dramatically alter how pain and its relation to pre-existing medical conditions are interpreted in future worker's compensation decisions.
House Bill 1163 would amend an existing law, adding language that says pain is only a symptom and not a sign that a pre-existing condition is worsening. The way the law reads now states that a claim is compensable if an injury "substantially accelerates [the] progression or substantially worsens [the] severity" of a pre-existing condition. The new language added to the bill would not allow pain to be used as evidence of an acceleration or worsening.
The existence of pain, then, would not be a valid diagnostic tool for doctors to use and present as evidence in a worker's compensation claim. Should the bill pass, only diagnostic imaging such as x-rays and MRIs would be allowed to be submitted as evidence.
Proponents of the bill such as Workforce Safety and Insurance (WSI), the fund that is the sole provider of worker's compensation coverage to employers in North Dakota, say it is merely a clarification of the language of the law. The motivation seems to be a North Dakota Supreme Court decision that reversed a previous ruling in which the lower court had denied benefits based on evidence of pain in a work-related aggravation of an equipment operator's arthritic back.
Under the new bill, that operator's back pain would not be allowed to be used as evidence in a worker's compensation claim.
Physicians have testified, however, that pain is a vital diagnostic tool that shouldn't be removed by a "brief, general and poorly defined addendum to existing law."
Pain management specialist Dr. Michael Gonzalez says that "The wording of this legislation is based on a profound misunderstanding of what pain is."
Even a doctor who is a member of the board of WSI seems to agree. Orthopedic surgeon Dr. Michael Moore said in a written statement "In an age of sophisticated medical technology, there is a public misperception that every condition can be detected or diagnosed by a scan or test."
He continued that pain as a diagnostic tool can be "crucial in determining the severity or significance of an injury, disease or condition."
Moore also sees some possible unintended effects of the bill.
"If the presence of pain or worsening of pain cannot be considered evidence of an injury or of a condition's worsening, then it follows that the absence of pain or improvement of pain cannot be considered evidence that an injury has healed or a condition improved."
By limiting what can be used to determine the validity of worker's compensation claims, legislators -and employers- just might limit their own ability to accurately assess the welfare of employees and "raise all manner of new contentious issues surrounding questions of when a patient could return to work." Clearly, that isn't in anyone's best interest.
Moore has submitted his own language to the legislature to try to better clarify existing law and avoid opening the possibility of an unlimited number of claims. He says WSI "reasonably wishes to avoid accepting liability for every ache or pain that accompanies the normal process of aging."
HB 1163 has passed the House of Representatives but has not yet been acted on by the State Senate.
Thank God Georgia's workers' compensation laws don't include a proposed provision like the one analyzed and reported above. Taking a person's pain level out of consideration and/or evidence when evaluating or adjudicating a workplace injury is ridiculous.