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Patrick Springer, Published March 23 2013

Bill would classify pain as only a symptom, not sign of worsening pre-existing condition

FARGO – Proponents say a bill being considered in the state Legislature seeks to clarify North Dakota workers’ compensation law regarding how pain and pre-existing injuries affect claims decisions.

But a physician who is a pain expert testified that the measure is based on a “profound misunderstanding” of pain that dates back to the 17th century.

Critics say the legislation, if passed, would be the most significant alteration in workers’ compensation law in decades, to the detriment of injured workers.

House Bill 1163 would declare that pain is only a symptom and not a sign of a substantial “worsening” or “acceleration” of a pre-existing condition under workers’ compensation law.

That language is important because only instances where work causes substantial worsening or acceleration of a pre-existing injury or condition are eligible for workers’ comp benefits.

If work simply triggers symptoms in a pre-existing condition, it is not a compensable claim, under North Dakota law.

The bill passed the House of Representatives 61-28, and has been heard by a Senate committee, but has not yet been acted upon in that chamber.

Tim Wahlin, a lawyer and chief of injury services for Workforce Safety and Insurance, is advocating the change in law. He said it will clarify the law, which he said has frustrated members of the North Dakota Supreme Court.

“No portion of this bill renders pain irrelevant or unimportant,” Wahlin said in written testimony. “No portion of this bill denies medical coverage for treatment of pain in compensable conditions.”

Dean Haas, who worked for workers’ compensation for 11 years and now represents injured workers, said passage of the bill would mean a “profound change” to the law.

“The legislation introduced at the request of Workforce Safety and Insurance states that a significant change in pain – even chronic pain – cannot be used to show a worsening in a pre-existing condition,” Haas said.

That means that without evidence of a worsening condition from a medical scan or test, a patient’s work injury would not present a valid claim, under the proposed law, Haas said.

“I think the significance of this is starting to dawn on people,” he added. “I don’t think workers’ comp can keep minimizing this.”

Physicians testified that pain is important in diagnosing injuries and medical conditions, and can be evidence of alterations in the nervous system following an injury.

“The wording of this legislation is based on a profound misunderstanding of what pain is,” Dr. Michael Gonzalez, a pain management specialist who practices in Fargo, said in written testimony.

“It mixes the idea of acute pain with chronic pain and does not reflect at all what we know about pain from contemporary scientific study,” Gonzalez said, adding the bill is based on a “17th century” understanding.

If lawmakers believe there is a “compelling need for a change in the law,” Gonzalez pleaded with legislators to consult with medical experts before considering legislation dealing with pain and medical conditions.

“It is far too complex to be dealt with by a brief, general, and poorly defined addendum to existing law,” he said.

He added: “The determination of what pain is and the significance of pain and its disabling effects should rightly be the province of medical practice.”

Dr. Michael R. Moore, an orthopedic surgeon based in Bismarck and a member of the board of Workforce Safety and Insurance, also offered testimony.

In an age of sophisticated medical technology, there is a public misperception that every condition can be detected or diagnosed by a scan or test, Moore said.

A symptom of pain can be “crucial in determining the severity or significance of an injury, disease or condition,” he said in written comments.

Still, Moore said WSI “reasonably wishes to avoid accepting liability for every ache or pain that accompanies the normal process of aging,” or comes from a pre-existing condition.

Moore submitted what he said was language to better clarify existing law to avoid opening the door to “an unlimited number of claims.” He also noted that House Bill 1163 could have an unintended consequence:

“If the presence of pain or worsening of pain cannot be considered evidence of an injury or of a condition’s worsening, then it follows that the absence of pain or improvement of pain cannot be considered evidence that an injury has healed or a condition improved.”

That could, Moore said, “raise all manner of new contentious issues surrounding questions of when a patient could return to work.”


Readers can reach Forum reporter Patrick Springer at (701) 241-5522