Most of us have seen police dramas on TV where the arresting officer tells the suspect that “anything you say can and will be used against you.” In your Georgia workers’ compensation claim not only do you have to worry about what you say, but you also have to worry about what you do not say.
In my practice, I often have to deal with the situation where my client does not discuss with his doctor all of the physical problems that arise from the accident.
- Example: you fall from a ladder and land on your tailbone but you do not mention to the doctor that your neck is sore as well.
- Example: you strain your lower back lifting a heavy box but fail to mention to the doctor that your wrist is swollen and sore and that your thumb is numb where the box fell on it
If you do not provide a complete list of your medical problems to the first doctor who sees you, later on you may find that the insurance company will refuse to authorize treatment for that omitted body part.
This results in a situation where later on in the case, for example, the insurance company notifies the doctor that they will pay for treatment of your lower back but not your neck, wrists or hands. You can find yourself meeting with a doctor who will literally refuse to treat you for the unapproved body part even if you are in extreme pain and likely to suffer permanent nerve injury if you do not get treatment. [Read More...]
You might think that if your employer is paying weekly benefits and has paid for medical care, you are not likely to have any significant disputes in your work injury case. As the case I am about to discuss shows, however, challenges from the insurance company may be right around the corner.
The case I want to highlight is not one of my cases. The decision in this case is part of the public record in that it is published on the web site of the Georgia State Board of Workers’ Compensation. I bring this case to your attention for several reasons:
- first, I want you to see how a State Board judge analyzes evidence
- second, there are certain elements of this case that are not discussed in the decision, but we can assume they are there because the insurance company did not raise the issue and the judge did not mention the issue. We’ll read between the lines to reveal these issues.
- third, this is a case that shows how insurance companies operate to cut off the benefits of a deserving claimant and to force a below market settlement.
The case I am discussing was decided in 2013 in south Georgia. Because State Board files are confidential, neither the name of the claimant nor the name of the employer is disclosed. Here is a link to the written decision.
The employee is a female who worked as the manager of a restaurant. In December, 2006 the employee hurt herself and developed neck pain which radiated into both hands and lower back pain that radiated into both legs. The employer accepted the claim and began paying her TTD (weekly wage) benefits. The employer also paid for medical care that include surgery on her cervical spine and surgery on her lumbar spine. [Read More...]
In many respects the right kind of rehabilitation and follow-up medical care can make the difference between a return to full function and long term (and sometimes permanent) restriction of movement, stiffness and pain.
Recently I received a call from a prospective client who tore her right rotator cuff and underwent surgery, but was seeking legal advice because she sensed, correctly, that her workers’ comp doctor was not providing appropriate follow-up 1.
The prospective client told me that she hurt herself attempting to move a heavy box over her head and that shortly thereafter her right shoulder became painful, swollen and weak. The industrial clinic doctor was unable to do much (other than waste a couple of weeks) and she was referred to a local orthopedist for consultation. [Read More...]
- I have changed the details of this case to preserve confidentiality, but the underlying principles are real. ↩
What would you do if your employer asked you to accept a higher salary in exchange for “opting out” of the workers’ compensation system. What would you say if a prospective employer offered you a job, but insisted that you classify yourself as an independent (1099) contractor so that payroll taxes would not have to be withheld and workers’ compensation insurance would not have to be provided?
Unfortunately for employers like this, workers’ compensation is not an optional coverage. Under Georgia law, any employer who employs three or more full or part time employees must carry workers’ compensation insurance 1.
Generally, if the person or company you work for controls the time, manner and method of completing a final work product, you are considered an employee for workers’ compensation purposes. Note that questions of employee vs. independent contractor for cases that involve the jurisdiction of the Georgia State Board of Workers’ Compensation are not the same questions asked by the IRS when considering whether you would be subject to tax withholding (although there is some overlap). [Read More...]
- The State Board website offers this example: a regular part-time employee works regularly on a part time basis, such as employees who only work on weekends. ↩
Certain terms that can be found in medical reports carry significant meaning. If you see the term “malingerer” applied to you, this could be a significant problem for your workers’ compensation claim.
In a work injury claim setting a malingerer may be defined as one who fabricates or exaggerates the symptoms of physical or mental disorders for the purpose of avoiding work, obtaining drugs, remaining on weekly benefits, or increasing settlement value 1. In other words, a malingerer is someone who claims that he/she cannot return to work despite the absence of medical evidence of a continuing disability.
Unfortunately in the adversarial world of workers’ compensation within the state of Georgia, accusations of malingering are tossed about with little to back up these claims. However, if the judge in your case starts to accept this accusation it can leave you exposed to unfavorable rulings regarding termination of benefits, changes in treating physicians and disability ratings. [Read More...]
Every year the Georgia legislature considers a variety of proposed laws which may impact workers’ compensation. This year, several bills passed the Georgia House and Senate and were signed by Governor Deal:
TTD maximum increases to $525 per week. If you were injured on July 1, 2013 or after, your maximum temporary total disability payment amount increases from $500 per week to $525 per week. The formula for calculating TTD benefits remains the same – you are entitled to 2/3 of your average weekly wage with a maximum benefit payment which is now $525 per week.
Mileage payments must be made faster. When we submit documentation to recover mileage reimbursement (for travel to and from the doctor, a deposition or other approved reason), the insurance company must reimburse you within 15 days of submission date. Previously they could wait up to 30 days to send the reimbursement. If the mileage check is late, then you will be owed a penalty.
WC-240 return to work procedure changed. If you attempt to return to work under a WC-240 or not, you must attempt to work for at least 8 hours or one shift for that attempt to be considered reasonable 1. I continue to encourage my clients to make good faith work attempts. Under the law if you cannot work for more than 15 days under the work attempt your TTD benefits must be reinstated.
Medical care now limited to 400 weeks. As of July 1, 2013 injuries, the insurance company is obligated to pay for medical care up to 400 weeks (which is more than 7 years). Only if your case is deemed catastrophic will the 400 week medical benefit cap not apply 2.
- I strongly suggest that you not return to work without a WC-240 form. The WC-240 is completed by your doctor and sets out your work activity limitations. Read more about the WC-240 procedure here ↩
- I have long argued that timing is one of the most important factors in maximizing your settlement. This change – limiting the insurance company’s obligation to pay for medical treatment makes it even more crucial that we understand and calculate the insurance company’s possible exposure properly. I discuss this timing issue more in this video ↩
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