Thursday, March 14, 2013

Editorial: Managing the Pregnant Claimant Case

Pregnancy changes everything. It’s one of those old chestnuts, and its truth resonates in worker’s compensation cases too.

It may seem odd that treatment with some work place injuries might begin with a pregnancy test. Women now represent a significant portion of the labor force, and many injuries in Missouri occur with women during typical child-bearing age.

Some workers may question why it even matters to obtain such a test, or why it  is any of the employer’s business to know the results.  Sometimes the worker may be surprised by unexpected news.

Similarly, some employers question why their worker’s compensation dollar should be testing for pregnancy which is unlikely  pregnancy had anything to do with work injury or occupational trauma. In some cases, the question arises whether the employer should pay additional disability benefits when the worker became pregnant after a work injury before thinking about her employer first and whether she had already obtained MMI.

Medical Treatment

Pregnancy arguably may meet the statutory definition of accident as an 'unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.'   In a recent case the Missouri concluded the consequences of a flu shot was an “accident” even though the shot was not. Doyle v Lakeland Regional, 2011 MO WCLR Lexis 243 (Dec. 8, 2011).  This could certainly describe a number of pregnancies in Missouri that being expecting is a totally unexpected traumatic event.

A claimant’s rehabilitation may be prolonged due to pregnancy such as the decision not to pursue diagnostic testing or elective surgery because of concerns about tetragenic damage. See Nickels v Wireless Northwest, 2007 MO WCLR Lexis 109; Reid v Security Armored Care Services, 2005 MO WCLR Lexis 122. Delay in such diagnostic testing may delay treatment recommendations, determination of MMI, and appropriate work release decisions. A work place injury may also accelerate the need for bed rest or other restrictions because of concerns of instability or risk of fetal injury.

Pregnancy may  divest the employer’s statutory control to designate medical providers in work place injuries and indirectly influence return to work decisions.  An employer has no statutory authority to designate a provider for a non-occupational injury. It is often the OB-GYN who assesses capacity to work and the reasonableness of certain treatment. Cases in which there is treatment for both the work injury and for pregnancy complications further raises difficult issues segregating what treatment reasonably flows from a work injury.
In more difficult cases, the chronic pain patient may become pregnant which requires special considerations on appropriate treatment. See Bernardi, etal, Difficult issues in chronic pain patients arise when a candidate for spinal cord stimulator becomes pregnant, Neuromodulation. 2010 Oct;13(4):270-4.


Pregnancy may raise disputes whether the work injury itself was the prevailing factor in the medical condition.

For example, some falls may arise due to idiopathic conditions associated with pregnancy. Pregnancy changes to hormonal fluctuations, fluid shifts, and musculoskeletal changes may cause carpal tunnel syndrome more likely than some work place exposures. Bosch v Reuters America, 2010 Mo WCLR Lexis 8. Osterman, etal Carpal Tunnel Symptoms in Pregnancy, Orthop Clin. North Am. 2012 Oct;43(4):515-20. A claimant after childbirth may attempt to attribute residual back pain associated with the pregnancy and childbirth to a remote back injury early in the pregnancy.  When the original accident had minimal medical attention such allegations are closely scrutinized.  Post-partem depression can be an important factor to apportion mental conditions allegedly attributed to work.  See Healy, C, etal; Arch Women’s Health. 2013 Mar 6. Self-harm in postpartum depression and referrals to a perinatal mental health team: an audit study.


One issue that arises is whether an employer has an obligation to continue to pay benefits when treatment or diagnostic testing is postponed due to an existing or subsequent ‘superseding’ pregnancy prior to MMI. The Commission in a pre-reform case recognized an obligation to continue to pay TTD benefits, citing Larson’s treatise concerning the treatment of pregnant claimants. Carter v Tri State Motor Transit, 2006 MO WCLR Lexis 116, however, did not involve a pregnant claimant. The answer is not always that clear and the issue requires close analysis whether the claimant could work as a result of the work restrictions on light duty but for the pregnancy. A similar problem exists for the employee who could have worked with pain medication but can no longer take pain medication because of a pregnancy.

Other issues

Pregnancy issues can arise in unusual situations, such a determining or tolling the date of disability, Wales v Govt Employees Hospital Assoc, 9 MO WCLR (LRP) 1006 or assessing the rights of a posthumous child. Hanneken, Dec. v Storage USA, 2007 Mo WCLR Lexis 141.

This issue raises a public policy concern whether pregnancy  tests should be more routinely performed as a health screen prior to any imaging study or elective surgery or if the refusal to take a pregnancy test  warrants a basis to suspend statutory comp benefits. The issues of privacy are further implicated by disseminating privileged health information about pregnancy not caused by the work injury but which may have an important outcome on case management decisions.

The issue of pregnancy is often neglected in the evaluation of worker’s compensation cases. Pregnancy, and the related issue regarding the use of prescribed fertility medications to become pregnant, warrants closer attention to assess appropriate treatment guidelines of the injured worker.