WHEN IS A PERMANENT TOTAL NOT ALWAYS A PERMANENT TOTAL ??? With the many new changes in the Worker's Compensation Laws in Florida, we and our clients are seeing more and more claimants trying for permanent total. Although medical documentation will, in some cases, be concrete in its support of the claim of permanent total, many times there is only subjective medical documentation, and then medical opinion is based heavily upon the claimant's complaints. As we have stated in numerous articles, claimants and their attorneys all too often control the information that medical personnel have to use in their medical diagnosis. Medical opinions can and do change drastically if information and/or evidence is gathered that shows the claimant engaged in activities contrary to what he or she is telling the doctor. But the burden, fair or unfair, is upon you, the claims handler, to provide the doctor with truthful visual evidence that a claimant is not being honest concerning his condition. Videotaped evidence is best used when the doctor is treating the claimant, not in a court or hearing room. The best time to change a doctor's medical opinion is before court, when he has time to confirm and revise his medical opinion at ease. Using evidence before a jury, judge or hearing officer, who are looking for an excuse to dismiss the validity or impact of such evidence so as to sustain the claimant's allegations of permanent disability, is not prudent use. Given the current climate concerning malpractice suits, can you blame a doctor for treating the complaints of his patient? It would take a very bold physician to accuse a patient of malingering for lack of objective medical documentation to support the patient's complaints. However, if you, the claims handler, provide evidence that supports the doubts or concerns of malingering that the doctor probably already has, then he can much more easily revise his medical opinion. The amount of evidence necessary to provide a doctor with what he considers overwhelming evidence sufficient to protect him in changing his medical opinion varies from doctor to doctor. Also affecting the amount of evidence necessary is the degree of limitation that the patient places upon himself to his doctor. Fortunately or unfortunately, our current system of justice concerning injured claimants, whether Worker's Comp. or civil liability, looks for any reason possible, any thread of evidence to believe and find for the claimant. This seems to include just about everyone involved from medical provider to judge to jury. The concept appears to be " Presumed Injured until proven, beyond any shadow of a doubt, Healthy". So, when is a permanent total not a permanent total ?? When he is a malingerer or worse, a coached claimant. How can you tell the difference? There are no sure fire rules as any claims handler can tell you. Most of the time however, the injury, the subjective medical documentation and reports and/or the reputation of the claimant's attorney or physician, are all the elements necessary to determine whether a particular claimant needs surveillance. Surveillance will either confirm or deny, but at least you will know. Those injuries, where it boggles the mind that they could lead to a permanent total status, usually scream out for investigation. What kind of evidence do I need to provide the doctor? You need to provide good quality video tape of the claimant involved in activities that he, the physician, can see for himself are in conflict with what his patient is telling him. The physician is not going to change his medical opinion of a patient based upon what some one else tells him; for that matter neither would you. How much evidence is enough for the doctor? The answer depends upon the previous complaints by the claimant and how severely he restricted himself. One thing for sure is unless the claimant has restricted himself very severely, you will need more than a single incident. Sometimes it will take evidence of three or four incidents of conflicting activity before a doctor feels confident that he his safe to change a medical evaluation. As a claims handler reviewing the file you can get a fairly good feel for how much evidence is going to be necessary based on the medical information the doctor has filed concerning where he has objective medical documentation or whether he is having to treat a claimant based on the patient's complaints. This is not to say that surveillance has not found many claimants with objective medical documentation of permanent total injuries, engaged in activities showing that they had risen above their injuries and continued to lead normal productive lives. Many times what makes a permanent total a permanent total is not necessarily the injuries suffered but the "system" that encourages malingering and remaining injured. It is indeed a sad commentary when an injured worker or individual considers his injuries in the afterthought as having hit the "Lottery of the Personal Injury Legal System" and he awaits his monetary award. Aggressive claims handling, surveillance and investigation are about the only tools you have to combat this societal mind set.