Q: I am currently towards the end of my lawsuit. I have had 2 surgieres on my right shoulder in two years and 1 on my left.
In my opionion I feel like my left arm recently had to have surgery because i over compensated it from having two surgeries on my right. I have talked to my lawyer & he keeps saying to have my doctor write it down. My surgeon only could say that it can be from over use and compensation but he can’t say 100% that it is from over compensation of my right arm. From him saying that does that mean I can possibly add my left arm to my workers comp case or is it impossible to prove
A Worker's Compensation claim is not a lawsuit. You need to have a conversation with your attorney about what relief you are seeking. In other words, are you seeking compensation for a "specific injury" (here, your shoulder); are you seeking compensation for loss of trade (the injury to one or both of your shoulders will require you to accept a different, lower paying job that you had at the time you were injured); or are you seeking a wage differential (if you must work fewer hours or perform work or you earn less money per hour, after your injury, you can request the difference between what you earned at the time you were injured and what you are now able to earn, through age 67). The type of relief that you are seeking will dictate how your attorney needs to prepare your case for trial. It is true that most cases are settled but if you are not PREPARED to go to trial, you cannot go to trial and you lose all bargaining power with your opponent.
First of all, your attorney is absolutely correct when he says that you need to have the doctor write opinions down. As I tell my clients, "if it's not written down, it didn't happen." Many doctors do not want to commit themselves because they feel that they can somehow provide good medical care without rendering an opinion. In today's world of Worker's Compensation litigation, that is simply not possible. Any doctor who wishes to practice in this area of medicine needs to understand that there is an extremely high probability that they will be deposed. Many doctors try to schedule depositions after business hours and the going rate is still $1500 per hour so it's not like you're asking the doctor to donate his or her time. The doctor really needs to understand and appreciate that it is a part of his/her job.
You are asking your surgeon the wrong question. As long as the doctor can state, within a reasonable degree of medical and surgical certainty, that overuse of your left arm in compensation for the injuries sustained to your right arm, caused or contributed to the need for surgery to your left arm, your burden is proved. Many doctors are confused and Worker's Compensation cases, especially doctors who are familiar with civil litigation. In civil litigation, it is necessary to prove "sole proximate cause." That is absolutely not required in Worker's Compensation.
"Write it down" is great advice but both you and the doctor need to know what you need for the doctor to actually write down. Talk to your attorney if the "what" is ever unclear. I hope this helps.
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