Author: Betsylew R. Miale-Gix

From whether there was a cognizable claim, through development and presentation of evidence, key words and phrases control how the case unfolds and whether the injured person receives necessary treatment and rehabilitation. There are words and phrases which have either a positive or a negative meaning for insurance companies and juries in the medical legal context. Knowing what they are and the ramifications of their use or disuse is of particular relevance for your patients and their attorneys. The following is a discussion of some of those key words and phrases.

APPORTIONMENT: Washington law requires each cause of the claimed injuries and damages be determined. If there is more than one cause, a percentage must be assigned to each of the causes of the claimed injuries and damages. This most often comes into play where there are alleged pre-existing conditions and, or subsequent injury causing incidents in particular.
KEY POINT: Percentages in provider reports will become a baseline for the adjusters when reviewing payment decisions and can, for better or worse, establish the parameters of what the attorney can do to assist the patient in presenting their claims. Consult with the patients attorney before assigning them if the patient is represented.

COMPARATIVE FAULT: An affirmative defense allowing a reduction of the plaintiffs recovery in proportion to the percentage of negligence or fault attributed to the plaintiff. Includes any failure to mitigate (to do something or not do something that would have reduced the nature and extent of injury, care, or recovery period) on the part of the injured person.
KEY POINT: Clear references to failure to follow care recommendations or statements to the effect they could have been better sooner or not required as much care had they stopped doing what they had to do to survive are potentially damaging to the injured person. These types of statements are used by the insurance company to make a mitigation of damages argument that there must be a reduction in the amount of compensation and care the patient can recover for.

CAUSATION: What caused the injuries and conditions for which treatment is being provided. This determination is within the sole purview of credentialed health care providers.
KEY POINT: Causal opinions in reports and testimony must be given in terms of reasonable medical or chiropractic certainty, the more probably than not, or 51% certainty standard.

DUTIES UNDER DURESS - Equates to partial temporary disability. This is a Colossus phrase which applies when the injured person has activities they had to, and did perform at home, work and recreation which were made more difficult due to the injuries from the incident.

FIXED AND STABLE - This concept belongs in the context of Labor and Industries claims - NOT in a personal injury claim for injuries from an auto accident, bicycle or pedestrian collision, or trip and fall incident. The appropriate term to be using in the context of a personal injury case is Maximum Medical (Chiropractic) Improvement. “Fixed and stable” means the post injury recovery period where the injured person has reached a plateau where no further regularly scheduled treatment will result in additional clinical progression of their condition.
KEY PONT: When writing a report and stating the person has reached this status, make sure any residual subjective and/or objective manifestations of the injury, including specifically ongoing function impacts in activities of daily living are specifically included when saying the patient is fixed and stable in L&I, or has reach MMI in a personal injury case. One must also specify additional care required to maintain the functional and level of recovery attained, and for periods in which active care will be required for flareups or exacerbations from activities of daily living.

FUTURE TREATMENT EXPENSES - Those future care expenses that are more likely, probable and definite. Establishing this requires the same level of certainty and verbiage required for all expert medical legal opinions: More probable than not, or to a 51% certainty.

GENERAL DAMAGES: Money damages for pain and suffering, disability, impact on relationships and activities with spouse and other family members, limitations in activities and reduction in quality of life. This encompasses all changes in life circumstances proximately caused by the injury causing incident according to both lay(non-expert witnesses) and provider testimony, past, present and future.
KEY POINT: Having this information charted consistently can do much to help your patient tell their story and be able to be compensated for the damage to their quality of life. The other part of their claim is for “Special Damages”, items with a hard and fast dollar amount like treatment costs and income loss.

HEARSAY: Refers to statements made by persons other than the person testifying repeating what the witness has heard others say out of court, offered as proof in the matter on which the witness is testifying. Generally, hearsay evidence is not admissible. There is an important exception to the rule for statements made for the purpose of medical diagnosis or treatment, including description of medical history, past or present pain, sensations, etc. for which the injured person is entitled to be compensated. Including these items in charts and reports is important to the patient being able to recover General Damages as these changes detailed in the provider records are considered more credible.

MAXIMUM MEDICAL (CHIROPRACTIC) IMPROVEMENT: The appropriate phrase to use in a personal injury case when the patient has returned to pre-injury status, or has reached a point at which their injury condition has plateaud or when over time, there are multiple evaluations which do not show additional, even gradual, continued progress in the patients overall recovery from the injuries.
KEY POINT: When one states their patient has reached MMI//MCI without stating more in a personal injury case context, it serves as the end point of active care, and potentially the claim overall. This is likely contrary to the doctors intent and damaging to the patient. As discussed previously, reaching MMI or MCI does not mean the injured person is without residuals or may not need further treatment. Include evidence of any permanent injury or ongoing subjective and/or objective residuals of injury and ADL impacts as well if they are present when MMI/MCI is achieved.

PALLIATIVE CARE - The active total care of patients whose disease is not responsive to curative treatment. The goal of palliative care is the achievement of the best possible quality of life for patients and their families.
KEY POINT: This is a specific type of care regime which has no place in the context of a personal injury PIP claim in particular, and should not be used at all by the provider regardless of how the insurance company phrases a report request question. This term is one half of the bogus insurance company two part construct (Palliative vs Curative) designed to further their cost containment goals by limiting the injured persons access to care.

PERMANENT IMPAIRMENT - This is an expert medical assessment of the permanent changes in physiology and function one has sustained as a result of the injuries and conditions from the injury causing incident.
KEY POINTS: Quantifying the life time impacts of residual physiologic changes and functional impacts enables the claimant to be compensated those changes. It enables them to have a realistic idea of what those changes are, and better understand how the injured person needs to be shaping their future work, home and recreational activities. It is usually most appropriate to rate permanent impairment under the comprehensive assessment based AMA guidelines, and not the L&I charts.

PREPONDERANCE OF THE EVIDENCE: When it is said that a party has the burden of proof on any proposition, it means you must be persuaded, considering all the evidence in the case, that the proposition on which that party has the burden of proof is more probably true than not true. This equates to the same 51% certainty for opinions given during expert medical and chiropractic testimony at trial, or in reports.

PREVENTATIVE / MAINTENANCE CARE: Care therapeutically necessary, ideally long term and given at regular intervals to prevent disease, prolong life, promote health and enhance the quality of life.
KEY POINT: Most insurance companies will not recognize this type of care as reasonable and necessary in a traumatic personal injury case. There are specific parameters built into the adjusting software to detect and reject maintenance care. One of the specific triggers for this when chiropractic care is involved is the provider using only a subluxation diagnosis. This phrase is one that should not be used when reporting and testifying in the context of a personal injury claim.

PRE-EXISTING CONDITION. A health condition that was present, symptomatic AND under care immediately prior to the injury causing incident. A condition that chronologically pre-dates the date of the traumatic incident, such as degenerative disc disease identified on an MRI, does not automatically qualify as a pre-existing condition. This is a key concept to keep in mind when asked to provide opinions on causation in a traumatic injury case.

PROXIMATE CAUSE: The term proximate cause means a cause which is a direct sequence unbroken by any new independent cause, produces the injury complained of and without which such injury would not have happened. In this context, whether or not the injuries to your patient and treatment for them were a direct result of the traumatic incident caused by the at-fault person.

REASONABLE MEDICAL or CHIROPRACTIC CERTAINTY: Standard for admission into evidence of opinions of a health care provider concerning his/her patient's condition, diagnosis, or prognosis. The doctor's opinion cannot be based on possibilities, but rather must be founded on probabilities. Reasonable medical or chiropractic certainty is essentially an opinion based on "more probably than not”, the 51% certainty standard.

REASONABLE AND NECESSARY - Treatment that is reasonable and necessary for the diagnosis or treatment of illness or injury and includes the reasonable and appropriate diagnosis, treatment and followup care as determined and prescribed by qualified, appropriate health care providers. As set out by many insurance policies: NECESSARY = essential in achieving maximum medical improvement; REASONABLE - consistent with the usual fees charged by the majority of similar providers in a geographic area.
KEY POINTS: Washington law says at fault parties are liable for all reasonable and necessary care and treatment proximately caused by their negligent conduct. Most automobile policies Personal Injury Protection (PIP) policies state “reasonable and necessary” medical expenses from an automobile collision will be paid. PIP insurers often retain doctors for insurance examinations designed to deny payment on the basis treatment was “palliative” and not “curative”. Under Washington State law however, where there is no language in the auto policy defining “reasonable and necessary” care to mean “curative,” or using the curative and palliative language, denial of benefits on these grounds is unfounded in the PIP contract or the law.

The provider must refuse to be caught in the “Curative and Palliative” trap. Keep the dialogue in the realm of what the law actually requires “Reasonable and Necessary”. Avoid using the “Curative and Palliative” terminology entirely. Remember, treatment needed to progress the patient toward pre-injury condition which would not have been required without the injury causing incident it is more probably than not Reasonable, Necessary and Related.

The experienced personal injury attorneys at Adler Giersch PS stand ready to assist you and your patients with personal injury claims when medical/legal and insurance issues arise. Free consultations are available through our offices in Seattle, Bellevue, Everett and Kent.