Asked in Workers' Compensation and Medical Malpractice for Texas

Q: I would like to know if I have a possible medical malpractice case.

Back in November of 2019, I injured my knee stepping off of a bus at work, I started a workmans comp claim the following day. My first MRI showed a tear in my miniscus, and I was recommended physical therapy. I went for about 2 months, a few times a week. During the harder weeks of therapy, I had an incident where my knee locked up, and she told me I was strong enough and didnt require rehabilitation, rather I needed surgery. In my second MRI it showed I have new tearing in my knee. I have recieved no treatment, due to my workmans comp insurance denying liability and it's now nearly July. My treating doctor then requested I do an FCE in an attempt to close my case and return back to work, and I've been in unbearable pain ever since. Currently trying to see my specialist to get another MRI to document the damage.

2 Lawyer Answers
S. Michael Graham
S. Michael Graham
PREMIUM
Answered
  • Workers' Compensation Lawyer
  • Dallas, TX
  • Licensed in Texas

A: If the Carrier is denying the tear to your knee and possible subsequent re-tear, my advice would be to contact a qualified workers' comp attorney. This matter will most likely need to go to the administrative hearing level to force the Carrier to accept your injury.

Roy Lee Warren agrees with this answer

Roy Lee Warren
Roy Lee Warren
Answered
  • Workers' Compensation Lawyer
  • San Marcos, TX
  • Licensed in Texas

A: I'm sorry for your situation. You ask whether you could have a medical malpractice claim. The WC Appeals Panel Manual provides the following:

An IW who has sustained a compensable injury is not limited to compensation of merely the compensable

injury itself if the injury, or any proper or necessary treatment of the injury, causes other injuries in addition

to the original compensable injury. Western Cas. & Surety Co. v. Gonzales, 518 S.W.2d 524 (Tex. 1975);

Maryland Casualty Co. v. Sosa, 425 S.W.2d 871 (Tex. Civ. App.—San Antonio 1968, writ ref’d n.r.e. per curiam,

432 S.W.2d 515 (Tex. 1968)). The question to be resolved in an extent of injury issue is whether the claimed

condition is causally related to or is a part of the compensable injury. APD 971725. Where the matter of

causation of the claimed injury is beyond common knowledge or experience, expert evidence to a

reasonable degree of medical probability is required. Houston General Insurance Company v. Pegues, 514

S.W.2d 492 (Tex. Civ. App.—Texarkana 1974, writ ref’d n.r.e.). The IW bears the burden to prove the extent of

his or her compensable injury. APD 001602. Extent of injury is a question of fact for the HO to resolve. APD 960407; APD 050031-s.

So I believe you may be limited to the remedy available under the WC Act, to seek benefits as allowed rather than sue for medical malpractice.

1 user found this answer helpful

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