When preparing Stipulations with Request for Award, specificity is key
How many times have you come across an Application for Adjudication of Claim alleging injury to the “upper extremities – not specified” or “arm – not specified”? Bilateral upper extremities include the hand, wrist, elbow and shoulder, essentially, the entirety of the arm. Some define it even more expansively to include the neck and shoulders. You simply chalk it up to laziness on the part of the applicant attorney and proceed to have the physicians clarify exactly what part of the upper extremities or the arm have been injured. Once clarified, and the case is ready for settlement, you are tasked with drafting the settlement documents. If settlement is by Stipulations with Request for Award, you must reconcile listing the body parts as pled (to appease EAMS) and limiting your exposure to future medical care to only the body parts injured. Specificity is the key.
In the unpublished opinion from the Court of Appeal, Perani v. Workers’ Compensation Appeals Board and Island Graphics, insured by National Surety Company, the Court addressed the question of whether treatment for the condition thoracic outlet syndrome was encompassed within an award for future medical treatment for “bilateral upper extremities.” If defendant had been more thoughtful and specific in preparing the Stipulations with Request for Award, would the result have been different?
In 1994, while working as a software engineer for Island Graphics, Mr. Perani filed an Application alleging injury to his “upper extremities” after he began suffering from pain, inflammation and swelling and impaired range of motion in his hands, wrists and arms. The job involved heavy keyboard use on a computer. He was not specifically diagnosed as having thoracic outlet syndrome, although his medical records described symptoms consistent with thoracic outlet syndrome the year following his claim. He was evaluated by a QME who diagnosed him as having a chronic repetitive strain injury and reported degradation of his fine motor skills.
He settled his case by Stipulations with Request for Award in 1998 with the carrier for Island Graphics, National Surety Corporation (Fireman’s Fund) which resolved “injury arising out of and in the course of employment to his bilateral upper extremities” and provided for 37.2% permanent disability and an award for medical treatment “to cure or relieve from the effects of said injury.”
In 1999, Mr. Perani consulted with a neurologist who diagnosed thoracic outlet syndrome. He was then involved in a non-industrial motor vehicle accident in 2001 which resulted in a cervical musculoligamentous strain and an increase in his upper extremity problems. He reported being “back to baseline” after one year.
Between 2002 and 2005, Mr. Perani did not use a computer for his work and reported some improvement in his symptoms. In 2005 he took a job as a part-time product manager for Autodesk, a software company. He worked at Autodesk through 2009 when he was laid off.
In 2009, Mr. Perani submitted medical bills for treatment of the thoracic outlet syndrome to Fireman’s Fund for reimbursement. Fireman’s Fund denied the request, noting, “Please note that . . . has now also diagnosed you with thoracic outlet syndrome. Your claim is for wrists only [;] therefore this diagnosis is not covered.” In 2012, Fireman’s Fund issued a denial of the claim of injury to thoracic outlet syndrome “on the basis it was non-industrial and unrelated to the workers’ compensation injury. In addition, the Future Medical Award . . . is only for the bilateral wrists and hands.”
Mr. Perani filed a workers’ compensation claim against Autodesk and its carrier, Travelers, and was evaluated by neurologist QME Robert Ansel MD who diagnosed applicant as suffering from thoracic outlet syndrome and found the injury 100% attributable to the work at Island Graphics. After being deposed, Dr. Ansel authored a supplemental report stating that the need for future medical care should be apportioned as follows: 40% to the original injury with Island Graphics; 10% to the non-industrial motor vehicle accident; and 50% to the injury with Autodesk.
Prior to the supplemental report from Dr. Ansel issuing in July 2016, Mr. Perani settled his case with Autodesk and Travelers by Compromise & Release. The settlement was not an acceptance of the case, noting that AOE/COE was not admitted, and stating that “[n]o part of this settlement is for the self-procured medical alleged against Fireman’s Fund.”
In 2019 the WCJ issued an award denying Mr. Perani ’s claim for reimbursement of expenses related to thoracic outlet syndrome stating that the alleged thoracic outlet condition fell outside the scope of the future medical care award as the award issued in 1998 was expressly limited to the upper extremities. Further, a petition to reopen was never filed within the five years of the 1995 injury and the WCJ was not in the position to expand the existing award to new body parts. It was the WCJ’s position that thoracic outlet syndrome involves chest and girdle, not upper extremities. Applicant filed a petition for reconsideration, which was denied. The Board concluded that because thoracic outlet syndrome involves a compression of the thoracic outlet, which is located in the upper torso, it was not an injury to the upper extremities per se and was not subject to the 1998 stipulated award. The petition for writ of review followed.
The Appeals Court disagreed with the Board’s conclusion that thoracic outlet syndrome was not encompassed in the 1998 stipulated award because it did not involve an injury to the “bilateral upper extremities.” It was not at issue whether the Mr. Perani suffered from thoracic outlet syndrome; what was at issue was if thoracic outlet syndrome fell within terms of the stipulated award.
The Appeals Court did note that the 1998 stipulated award did not specify that future medical care was authorized for a particular medical condition such as a repetitive strain or carpal tunnel syndrome, which can be distinguished from thoracic outlet syndrome even when symptoms overlap. Instead, the award broadly stated that injured body parts were “bilateral upper extremities,” without specifying a particular medical condition, and, that there was need for medical treatment for that injury. Had the parties wished to limit future medical treatment to treatment for a particular condition, they could have done so.
The lesson learned – Specificity is best when drafting Stipulations with Request for Award. Avoid broad and overly inclusive language and limit, to the best of your ability, the body parts that are accepted and the conditions for which future medical treatment will be provided. Had defendant specified the accepted body parts as “bilateral wrists” and the condition for which future medical care was to be provided as “carpal tunnel syndrome” the outcome may have been different and much less costly.