I am often asked how I know when a case is ready to settle. There are many factors that go into this judgment call, one of the most important being the disability rating assigned to my client.
What is a "disability rating" and how does it impact the settlement value of a Georgia workers compensation case?
The Georgia workers’ compensation statute looks to the American Medical Association (AMA) Guidelines as the required framework for a physician to assign a disability rating to a claimant. The AMA Guidelines are designed to assist physicians in objectively evaluating a claimant’s injuries and limitations. AMA Guidelines currently exist for a wide variety of body systems – including, for example, the muskuloskeletal system, the cardiovascular system, the immune system, etc. The AMA Guidelines are used in Georgia workers’ compensation cases, but they can also be used in personal injury matters. Click on the link to read how a Virginia accident lawyer discusses how he uses the Guidelines when evaluating a vehicle accident caes.
Here is a summary of the current AMA Guideline for the cervical spine (thanks to Spinal-Logic.com):
Category I (0%)
- No significant clinical findings
- No muscle spasm or guarding
- No documentable neurological impairment
- No alteration in structural integrity
- No fractures
Category II (5-8%)
- History and exam relevant to a specific injury
May include:
- Muscle spasm
- Asymmetrical loss of range of motion
- Complaints of radiculopathy without objective findings
- No alteration of structural integrity
Or:
- Significant radiculopathy
- Disc herniation at expected site verified by imaging study
- Patient improved after nonoperative treatment
Or one of the following Fractures:
- Less than 25% compression of one vertebral body
- Healed posterior element fracture without loss of structural integrity or radiculopathy
- Spinous or transverse process fracture with displacement
Category III (15-18%)
Significant signs of radiculopathy:
- Dermatomal pain and/or sensory loss
- Loss of reflexes
- Loss of strength
- Muscular atrophy
- Neurologic impairment verified by electrodiagnosis
Or:
- Significant radiculopathy with disc herniation verified by imaging study
- Improvement of radiculopathy following surgery
Or one of the following Fractures:
- 25-50% compression of one vertebral body (healed without loss of structural integrity)
- Posterior element fracture with displacement into the spinal canal (healed without loss of structural integrity)
Category IV (25-28%)
- Bilateral or multilevel radiculopathy.
- Alteration in motion segment integrity determined from flexion extension radiographs as 3.5mm or greater of translation or angular motion 11 degrees greater than each adjacent level (radiculopathy need not be present).
Or:
- More than 50% compression of one vertebral body without residual neurological compromise.
Category V (35-38%)
- Significant impairment of the upper extremity requiring adaptive functional devices.
- Single level total neurologic loss.
- Multilevel neurological dysfunction.
As you can see, this particular Guideline requires the examining physician to look at numerous factors and requires conclusions that fall within a proscribed range. In other words, a claimant with a Category IV cervical spine injury can qualify a disability rating of between 25 and 28%. The doctor has some leeway but the goal would be for similarly limited claimants to receive similar disability ratings regardless of who conducts the exam.
Not all physicians will issue an AMA Guideline rating and I have found that sometimes, treating doctors will refer a claimant out for a functional capacity evaluation (FCE) to determine the patient’s specific capacity for various physical activities like lifting, pushing, pulling, etc. In my experience, FCE evaluations often introduce a level of subjectivity into the disability rating process as clinicians performing the FCE tests are called upon to evaluate effort and motivation. This is especially true when the facility conducting the FCE receives most or all of its business from insurance companies.
In some instances, I will challenge the validity of a disability rating if I feel that the evaluating physician introduced too much subjectivity into the process.
Once a disability rating has been assigned, the Code provides for a calculation whereby the rating percentage is multipled by the claimant’s average weekly wage number and by a multiplier. The resulting product is called the Permanent Partial Disability amount and that figure becomes part of my settlement negotiation.
Obviously the higher the disability rating, the more serious the injury and the more uncertainty there will be for the claimant’s future.
Disability ratings are almost always issued when the claimant is approaching "maximum medical improvement" or that point where the claimant’s condition is beginning to stabalize. If you have been receiving weekly wage benefits and your doctor is beginning to talk about issuing a disaiblity rating, you need legal representation to help you understand what is happening and to mazimize your recovery.
Filed under Permanent impairment benefits, Settlements, Understanding the Law, Winning Strategies by 
What is the biggest trap that you can face in your Georgia workers’ compensation case? Without question, issues relating to your return to work after being injured must be handled very carefully.
Let me give you an example. Earlier this month, I received a call from a potential client. This young man – I’ll call him "Tom" – had been working with earth moving equipment for a large construction company that was building a dam on a river in north Georgia. Tom and a co-worker were working late – all of the supervisors and most of the co-workers were gone. The co-worker pushed a large boulder towards Tom and when Tom tried to control the boulder, it rolled onto his hand, crushing a finger and badly injuring his hand.
Tom’s co-workers took him to the emergency room at a local hospital where his condition was stabalized and a hand surgeon was brought in. Tom underwent surgery that very night to repair his hand. Tom was released to go home late that night with a prescription for strong pain medicine and instructions not to use his hand until further notice.
The next morning, a supervisor from Tom’s employer called. Although the accident had literally happened the night before, the supervisor began pressuring Tom to return to work. During that first day after the accident, various supervisors from the employer called and emailed Tom repeatedly to demand that he return to work.
Within a few days, Tom received a letter from the employer’s workers’ compensation insurer stating that his claim would be accepted and that his TTD (temporary total disability benefits) would be forthcoming. At the same time, during this first week, Tom continued to receive calls from his employer requesting that he report back to work.
Tom does not know much about workers’ compensation law, but he sensed that the employer’s actions were not in his best interest. He found Ginsberg Law Offices on the Internet and he called our office. When I first spoke with Tom, he advised me that his employer had never posted a panel of physicians, they had not offered him a prescription drug card, nor had anyone from the employer ever explained to him anything at all about how to file a workers’ compensation claim or about any of his rights thereunder.
Where is the "return to work trap?"
The trap arises when an employee returns to work. Under the Georgia workers’ compensation law, if an injured worker who is receiving his weekly TTD benefits returns to work without a form WC-240, and he cannot perform the assigned job, the TTD benefits stop. If the employer does not volutarily restart them the employee will have to request a hearing (and wait the two to three months for a hearing date) to try and get them restarted.
However, if that same employee returns to work with a WC-240, and cannot perform the assigned job, his TTD benefits will start again immediately.
What is this special form, the WC-240?
A WC-240 is a State Board from that sets out a specific light duty job description. The WC-240 includes the start date for the light duty return to work, specific activity limitations as described by an authorized treating physician, the name and contact information for a supervisor and the light duty rate of pay.
If you return to work with a WC-240 and cannot perform the job duties, you notify the contact supervisor, then you return home knowing that your TTD benefits will start again automatically.
In Tom’s case, had he returned to the dam building site without a WC-240 and been unable to resume work in his heavy construction job, there is a good chance that the employer would have cut him off. At that point, Tom would have no job, no income and no workers’ compensation benefits.
As you can imagine, Tom’s settlement leverage would be very minimal.
I think it is fairly obvious that Tom’s employer has taken an aggressive, "in-your-face" approach to Tom’s case. Even the insurance company adjustor confided to me that the employer was not acting properly in what amounts to harassment of Tom.
Sometimes employers understand Georgia law fully and they use this "return to work trap" to squeeze injured employees. They know that an injured employee who has no money will be more likely to settle for a miminal lump sum out of desparation.
Other employers are not based in Georgia and they don’t know anything about a WC-240, but will take adavantage of the leverage associated with an undocumented return to work.
I think that Tim’s case also illustrates why an injured employee needs legal representation.
Finally, you should be aware that the WC-240 was appropriate in this case because Tom had already been receiving TTD benefits. If your employer has controverted the claim and no TTD benefits have commenced, a different strategy might be necessary.
Many of the calls I get from injured workers are triggered by questions about returning to work. If your doctor has suggested that you are ready to return to work – full duty or light duty, or if your employer is pressuring you to return to work, please do not make any decisions without talking to me or to competent legal counsel.
Filed under Georgia Workers' Compensation, Income benefits, Returning to work, Winning Strategies by
