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When “Workplace Medicine” Becomes Medical Malpractice

In this compelling 13th episode of The Jeffrey Gross Show, host Jeffrey Gross is joined by co-host Joe Dougherty and special guest Aaron Freiwald, founder of Freiwald Law. While the hour begins with a vibrant look at Philadelphia’s legendary music scene—from Pink Floyd at the Garden to Dead & Company at the Sphere—the conversation pivots to a critical and often overlooked legal intersection: Medical Malpractice within the Workers’ Compensation system.

Key Discussion Points:

• The 90-Day Rule: Jeff Gross breaks down the “Panel Physician” requirement in Pennsylvania, explaining how insurance companies use these specific doctors to rush workers back to work, often at the expense of proper diagnosis.

• The Diagnostic Delay: Aaron Freiwald discusses the “money game” played by insurance carriers, where cheaper X-rays are favored over necessary MRIs, leading to permanent injuries or, in extreme cases, tragic outcomes like septic shock.

• The Rise of Non-Physician Providers: Both attorneys highlight a concerning trend in occupational health where patients see Physician Assistants (PAs) instead of board-certified doctors, leading to a diminished standard of care.

• The “Independent” Medical Exam (IME): Learn why these exams are anything but independent and how they are used as a “reasonable basis” to deny life-changing surgeries.

• Knowing the Medicine: Jeff and Aaron reveal why injury lawyers must often know the medicine better than the doctors they depose to ensure justice for their clients.

Transcript

Show: The Jeffrey Gross Show

Episode: 13

Date: November 12, 2024

Host: Jeffrey Gross, Esq. (Gross & Kenny LLP)

Co-Host/Moderator: Joe Dougherty

Guest: Aaron Freiwald, Esq. (Founder, Freiwald Law)

Joe Dougherty: Hello, ladies and gentlemen around the Delaware Valley, welcome to the Jeff Gross Show here on WWDB Talk 860. Awesome show we’ve got planned for today. Jeff Gross, how are you, sir?

Jeffrey Gross: I’m doing great, Joe. How are you? I can’t complain. This is our sports show—oh, I’m sorry, we’re just messing around.

Joe Dougherty: We’ve got a great guest, Aaron Freiwald. How are you, Aaron?

Aaron Freiwald: I’m doing great. Thanks, Joe.

Joe Dougherty: It’s always a pleasure to have you. I was excited about today’s show because we had Aaron on recently. He is the founder of Freiwald Law, a personal injury firm that does a very unique area of the law that, in 10 years of doing this, I’ve never had anybody actually come out and talk about. To me, personally, I’ve wondered for ages. It’s an area of the law where, especially being a former ironworker, I see a lot of friends get injured. Jeff, those are people that you represent, but they’re always getting beat up when they try to represent themselves. Jeff, remind our listeners a little bit about yourself and the firm.

Jeffrey Gross: So, I handle workers’ compensation claims on behalf of the injured worker who is disabled from working due to a work-related injury; I’ve been doing that for 35 years. I have the firm Gross & Kenny, and Patrick Kenny is my partner. We’ve been going strong for a long time now.

Joe Dougherty: Fantastic. And Aaron, a little bit about yourself and the firm?

Aaron Freiwald: I’m the Founder and Managing Partner of Freiwald Law here in Philadelphia. We handle complex, big injury cases around Pennsylvania, New Jersey, and elsewhere, including medical malpractice—which I know we’re going to talk about today—auto cases, slip and fall cases, and even representing some businesses in claims against other businesses, all on the plaintiff side.

Joe Dougherty: I asked Jeff what he thought of the game. He said he didn’t see the Eagles/Dallas game. I’m like, “What could have happened? Did someone have a baby?” But he said something I could relate to immediately.

Jeffrey Gross: I got a call to go watch an artist in the evening. I had to get up there in the afternoon. I saw David Gilmour at Madison Square Garden. He was absolutely amazing. If you like Pink Floyd, he’s the man. I had never seen him before; I’d only seen Roger Waters. I was truly amazed by him.

Joe Dougherty: How was the crowd?

Jeffrey Gross: Well, it’s Madison Square Garden; it was filled. The demographic was really interesting. The youngest guy I saw there was probably about 35. I don’t think the youngins know too much about him.

Joe Dougherty: That’s a shame, because he is a part of history. I saw his daughter or granddaughter on a reel—she’s angelic. Aaron, you are a music fan yourself, correct?

Aaron Freiwald: Yeah. Actually, the last show I saw at Madison Square Garden was last fall. It was Billy Joel. I took my fiancée there for her birthday. The first concert she ever saw as a teenager was Billy Joel, and we sat almost in the same row all these many years later.

Joe Dougherty: Incredible. My wife and I were in New York while our son was doing comedy. I went and scalped a couple of tickets to the dog show at the Garden. I think I paid $100 a ticket. Her ticket was good; mine wasn’t!

Jeffrey Gross: Maybe Aaron and I should fill you in on the law that’s been changed relatively recently about the statute of limitations when it comes to dog shows—there is no statute! If you scalp tickets to a dog show, for life, you’re screwed.

Joe Dougherty: What music did you guys have growing up?

Jeffrey Gross: I’m a major, major Tom Petty fan. Love Tom Petty.

Aaron Freiwald: I remember the first Tom Petty album coming out when I was a teenager working in an ice cream shop.

Joe Dougherty: Damn the Torpedoes?

Aaron Freiwald: That was the second one. I think the first was just called Tom Petty and the Heartbreakers.

Joe Dougherty: I still play my bass guitar every day. My dad got us into music—Led Zeppelin, The Rolling Stones, The Beatles. I remember listening to The Wall in my headphones.

Aaron Freiwald: Don’t skip over Dark Side of the Moon.

Joe Dougherty: Iconic. Unbelievable. I got into Springsteen later, but I discovered Dark Side of the Moon earlier. You get a chance to see David Gilmour—holy cow.

Aaron Freiwald: I don’t think he’ll ever perform again, actually.

Jeffrey Gross: Next time we do the show, I’ll bring my guitar. We can jam out. I’ll sing and you play.

Joe Dougherty: I’m a songwriter. I spent most of my life in the recording studio. I love it.

Jeffrey Gross: There’s a lot of these small bands that crop up. I was talking to a guy Nantucket yesterday at the concert who was 35 and loved Pink Floyd. There is a band called Pink Talking Fish.

Joe Dougherty: Are they a cover band?

Jeffrey Gross: They are a cover band, but they play Pink Floyd, The Talking Heads, and Phish. They mix and match. They’re really good.

Joe Dougherty: Any Deadheads in the house?

Jeffrey Gross: We saw Dead & Company at the Sphere in Vegas.

Aaron Freiwald: Incredible. What did you think of that? I wasn’t sure about being in that closed space.

Jeffrey Gross: That closed space isn’t so closed. If you’ve been to an IMAX, it’s a four-story screen. This is 33 stories. It’s an amazing experience; you are in another world.

Aaron Freiwald: I’m a child of the 60s and 70s. My first concert was the Eagles, and we’re going to see them at the Sphere in December.

Joe Dougherty: I love the early Stones and the Beatles. Did you know Paul McCartney played on the Stones’ last record? He did a bass line. So did Bill Wyman. It amazes me that someone that age can be as agile as Mick Jagger or Bruce Springsteen.

Aaron Freiwald: Billy Joel is in great shape. The quality of his voice is still there.

Jeffrey Gross: Your voice is your voice. George Burns’ voice was the same at 95 as it was in the 1950s.

Joe Dougherty: I think of Frank Sinatra. “It Was a Very Good Year” is one of my favorite songs.

Aaron Freiwald: Willie Nelson is 90 now. He looked 90 sixteen years ago! But what a gorgeous voice.

Joe Dougherty: Dean Martin… that voice was smooth. He was a great comedian with Jerry Lewis.

Jeffrey Gross: He was the original. That whole OG swag.

Joe Dougherty: I went to see his daughter, Deana Martin. She had her dad on the screen doing a duet. It was pretty cool. All right, Jeff, we don’t need to talk sports—we can talk music! But let’s get into the law. We’re going to spotlight our attorneys.

Jeffrey Gross: I’ve known Aaron a long time. He is the utmost gentleman and one of the best guys I’ve ever met, in addition to being an amazing attorney.

Joe Dougherty: I’ve done a couple shows, I don’t get that—he seems like a real prick! Just kidding. How long have you known each other?

Jeffrey Gross: A long time. Our children—mine are 28 and 25.

Aaron Freiwald: Mine are 27 and 24.

Joe Dougherty: Let’s talk about medical malpractice. Jeff, you represent injured workers. They get hurt, they go to the boss, and the boss tells them where to go. They often end up with a doctor who says, “You aren’t going out of work,” even when they can’t lift their shoulder.

Jeffrey Gross: They call these “panel physicians.” Under the Workers’ Comp Act in Pennsylvania—unlike New Jersey, where you treat with an insurance doctor for the life of the claim—you only have to treat with a panel physician for the first 90 days. But there are qualifications. You have to have acknowledged this at hire and at injury. These doctors are geared and paid by insurance companies to get people back to work. They don’t want to take them out of work unless they are paraplegic.

Joe Dougherty: And if they make a lot of money, like police or fire, they take a huge pay cut on comp.

Jeffrey Gross: Right, so they have “Heart and Lung” benefits, but they have to treat with city doctors. Panel physicians are a cautionary tale. Often you aren’t even seeing a doctor; you’re seeing a Physician Assistant (PA). If they refer you to an orthopedic surgeon, it’s often a branded organization—the “McDonald’s of orthopedic surgery.” You know what a Big Mac tastes like, but orthopedic surgeons are all different. The standard of care can vary, and if the doctor doesn’t care, it makes things really bad.

Joe Dougherty: Aaron, what does “standard of care” mean?

Aaron Freiwald: It’s what is reasonable for a physician to do under a given set of circumstances. These workers’ comp doctors are essentially working for the insurance company, but they are still bound by the standard of care. When they aren’t reasonable, that’s malpractice. I look at the medical malpractice part. Increasingly, we see that these 90-day doctors are so interested in getting a person back to work that patients aren’t getting the tests they should. I have a case where a nurse had a bad neck injury, but they diagnosed it as a low back injury and ordered zero imaging—no X-ray, no MRI—but sent her to physical therapy. You cannot send a patient to physical therapy before you know what the actual injury is!

Joe Dougherty: I just got a call from a union business manager about a 30-year ironworker. They haven’t done imaging on his shoulder or neck, but they’re giving him therapy. He wants an MRI, and the woman dismissed him.

Aaron Freiwald: Why would an insurance company not encourage an MRI? It’s the age-old answer: money. MRIs cost money; X-rays are cheaper but don’t show the same things. Physical therapy is relatively inexpensive. I’m seeing more PAs now than ever, and it’s scary. I want a real doctor with medical school and residency. A PA doesn’t have that experience, but it saves the insurance company money until something bad happens.

Jeffrey Gross: The workers’ comp insurance company has zero incentive to foster malpractice because that comes out of a different pocket—the malpractice carrier’s pocket. The problem I have with Aaron’s role is that it’s consequential, not preventative. Aaron can’t jump in and say, “You have to give this guy a diagnostic study.” By the time Aaron gets involved, it’s too late. Something bad has already happened and resulted in permanent damage.

Joe Dougherty: What about the Independent Medical Exam (IME)? I’ve heard nightmares about five-minute exams. How do those doctors look in the mirror?

Aaron Freiwald: That doctor is not working for the worker; they are working for the insurance company.

Jeffrey Gross: An IME doctor is often used just to establish a “reasonable basis” to contest a claim. If my client needs surgery, the IME doctor says he doesn’t after five minutes. It’s just there so the insurance company doesn’t get hit with penalties for an unreasonable contest.

Joe Dougherty: How do judges react?

Jeffrey Gross: At the end of the day, we win, but it takes much longer than if we just got the surgery in the first place.

Aaron Freiwald: Insurance companies play a numbers game. They hustle people back to work and save money on the nine out of ten people who don’t get a lawyer. They’ll save money even if they have to pay more on the tenth case because that person went to Jeff.

Joe Dougherty: My buddy is a foreman, a great ironworker. He can’t wait to get back to work, but he’s complaining. If a guy like that complains, you know it’s real.

Aaron Freiwald: We aren’t the kind of lawyers who encourage people to stay out of work. We want them to live a full life, but these practices leave people permanently injured.

Joe Dougherty: A doctor once said if a person doesn’t get good treatment, they’ll never recover. How important is it for you to know the medicine?

Jeffrey Gross: It’s one of the best parts of my job. I love learning about it. My father was a radiologist and my sister is a neuroradiologist. Sometimes I’ll use her as an expert to compare films—disclosing she’s my sister, of course. I’ll have her look at an MRI and she’ll say, “Oh my goodness, this is crazy.”

Aaron Freiwald: I see a trend toward non-physician providers. It’s throughout healthcare. I have cases involving malpractice by nurse practitioners, PAs, or midwives. No disrespect to them, but I wouldn’t go to urgent care for something serious.

Joe Dougherty: This ironworker was told directly by a PA, “I’m not sending for an MRI.” His hands are tied.

Jeffrey Gross: You cannot adequately diagnose symptoms without diagnostic tools. A PA might not have the capacity to prescribe the test, but the physician who employs them does—but they never see the client.

Aaron Freiwald: The classic scenario: a worker hears a “pop” in their back. The comp doctor says it’s probably a muscle sprain. But it could be a fractured vertebrae or spinal cord impingement. They guess it’s a sprain, order no test, hustle them back to work, and then the patient gets worse. They played the odds and lost, and the loser is the patient.

Joe Dougherty: The emotional stress on someone who doesn’t want to lose their job is huge.

Jeffrey Gross: I have a client who cut his leg at work. A deep cut. He went to the infirmary; they put Neosporin and a band-aid on it. He went back to work. Two days later, he felt like he had COVID. He went to the panel urgent care. They said, “You don’t have COVID.” He told them about the leg. They did nothing. 48 hours later, he was dead from septic shock.

Aaron Freiwald: Every one of my cases is that same story where a doctor or PA makes an assumption that it’s probably nothing. The classic pattern is an ER doctor dismissing chest pain as indigestion or a panic attack when it’s an impending heart attack.

Joe Dougherty: It excites me to think of Aaron “smoking” through these panel doctors. Why haven’t I heard of more Aaron Freiwalds?

Aaron Freiwald: We prepare every case as if we are going to trial. I’ve taken depositions of doctors where I know more than the doctor because I had to learn the specific issues. Not everyone is an “A” student; some are “D” students. We have to stand up for the person.

Jeffrey Gross: Most of these cases are about facts, not medicine. A doctor might know what they are doing but make a mistake by not reviewing something consequential.

Joe Dougherty: People give so much status to doctors that they don’t feel they can make a difference if they are wronged.

Aaron Freiwald: You have to have a medical expert certify the case has merit. With the right advocate, you can make a stand to make the system better.

Jeffrey Gross: If a client has been seeing a panel doctor for three weeks and nothing is helping, I suggest seeing a different doctor using health insurance or paying out of pocket to get a truly independent opinion. That helps. But many injured workers are stuck thinking, “I don’t want to screw up my employment.”

Aaron Freiwald: If you’re in that 90-day period, can you ask the panel doctor for an MRI?

Jeffrey Gross: They can say anything they want, but the doctor can just say no. That’s when the patient goes off-panel.

Joe Dougherty: Real quick, there are no out-of-pocket costs for these services, right?

Jeffrey Gross: Correct.

Joe Dougherty: Aaron Freiwald, contact information?

Aaron Freiwald: Direct number: 215-940-6291 or freiwaldlaw.com.

Jeffrey Gross: My cell is 215-512-1500 and https://www.google.com/search?q=phillyworkerscomp.com.

Joe Dougherty: Thanks for listening, everybody!