P. Dawn Biship, Esq. 

Watch for the Pitfall of

"Stale" Medicals

In order to file an employer's application on the basis of a release to return to work, you must file supporting medical documentation.  If the medical documentation is "stale," the Commission will reject the application.

Here is a example of stale medical documentation.  The treating physician examines the claimant in March of 2007. At that time, the treating physician releases the claimant to full duty work and prepares a report or furnishes an office note addressing the work release.  For whatever reasons, though, the carrier  fails to file an employer's application seeking termination of temporary total disability based on the full duty release until August of 2007, five months after the release.  The Commission will reject that application because the medical report and release will be stale at that point.

The Commission has been applying the "staleness" standard as set forth in McElvy v. Cottman Transportation, VWC File No. 216-32-07 (October 20, 2004).  In McElvy, the Commission held that medical evidence which was more than three months old at the time of filing was stale.

So,  the current rule of thumb is to make sure your supporting medical shows that the date of your doctor's examination and release to work is no more than three months old at the time of filing. If the medical examination and work release is three months old or less at the time of the filing of the application, the Commission should not reject the application due to staleness.  On the other hand, if the medical examination and work release by the treating physician is more than three months old at the time of filing, the Commission will reject the application.

The carrier should pay close attention to the claimant's return to the doctor for examination and a concurrent full duty release and utilize that medical report promptly to avoid the "staleness" problem.

For more information, please contact Dawn Bishop at (804) 783-7267 or DBishop@SandsAnderson.com.