If you did not realize this already, understand that privacy in the United States is pretty much dead.  If you participate in social media like:

• Facebook
• My Space
• Yelp
• Tumblr
• Wordress (blogging)
• Blogger
• Pinterest
• YouTube
• Twitter
• and many more

information about your life can be available to anyone who is looking.  And you can bet that insurance adjusters and insurance defense lawyers are looking.   While private eye surveillance is still used, insurance defense adjusters also run searches for you on various social media platforms.  If they see you running, jumping, lifting or doing anything inconsistent with your claimed injury, they will use that video, photograph or post as grounds to cut off your benefits.

A colleague of mine tells the story of a client of his who decided to video her son’s high school wrestling match and thereafter uploaded to YouTube.  At one point the video shows the claimant climbing bleachers, then jumping  up and down to cheer her son.  Unfortunately this woman was asserting a job injury to her hips and lower back that she claimed was disabling.  When confronted with the video, she insisted that the wrestling match was a one-time event and that she ended up in bed for a week thereafter.  The workers’ compensation judge did not accept this argument and upheld the insurance company’s termination of benefits.  A case that could have settled for $50,000 to $75,000 ended up settling for nuisance value of less than $5,000.

Don’t let this happen to you.  If you are pursuing Georgia workers’ compensation benefits, close or suspend your social media activities until your case is over.

I sometimes receive calls from injured workers who are receiving weekly wage benefits as well as medical care, who wonder why they should hire counsel if everything “seems to be working out okay.”  Sometimes they sense that something is not quite right but are wary of rocking the boat.

Know Your Doctor’s Reputation

I respond that one of the most valuable services I offer my clients has to do with my knowledge of and opinions about the medical providers that accept workers’ compensation referrals in Georgia.  After 20+ years of practice in this area of law, I have seen or know about the biases and quality of work offered by most of these doctors. Having worked as an insurance defense lawyer for several years at the beginning of my career, I can quickly identify an insurance company strategy to close out your case without addressing your medical needs or paying you a fair and necessary settlement.

Often the first indication you may have that something is not quite right may be a biased medical report.  Sometimes you sense the bias right away – when you visit an “industrial clinic” with an uncaring, assembly-line approach to medicine.  Sometimes the doctor you visit seems pleasant and caring, but you are stunned to read his report that minimizes your complaints, misstates your words, suggests that you are exaggerating your symptoms and releases you back to work far too soon.

Most of us are brought up to respect physicians and to defer to their opinions.  I am here to tell you that this type of blind deference is a major mistake in a workers’ compensation case.  You – or me as your representative – must advocate and advocate aggressively for your medical care.

Options if Your Workers’ Compensation Medical Care is Substandard

We have several options if we suspect that the posted panel doctor who is treating you is biased and unfair.

One Free Switch

First, under the Georgia workers’ comp. statute, we are allowed “one free switch” from one panel doctor to another.  Assuming that your employer’s posted panel is valid, you have the right to change doctors one time without explaining why.  In my experience, the quality of physicians on a posted panel can vary widely – sometimes switching from the industrial clinic doctor to a more independent physician can make a significant difference in your case.

Invalid Posted Panel

Second, we may discover that your employer’s posted panel is invalid.  I have written about the requirements for a valid posted panel of physicians elsewhere but if the panel if not valid, then you may have the right to seek company paid care with any doctor we choose, including quality health care providers that I know from other cases.

Along these same lines, Georgia law requires that posted panels contain the name of at least one orthopedist.  I regularly see panels of doctors that contain multiple names and thus appear to be valid, but do not contain the name of an orthopedist.  The absence of an orthopedist may very well invalidate the panel and give us control of your medical care.

Claimant’s IME

Third, under Georgia law, you as the injured employee can demand you “employee’s independent medical exam” (also known as the “claimant’s IME”).  This relatively recent change to the workers’ compensation law allows employees to choose a physician to conduct an evaluation that must be paid for by the employer/insurer.  While you will not get treatment at a claimant’s IME, the resulting report can be helpful evidence in your case and can support an effort to change the authorized treating physician.

Petition State Board for Change in Authorized Treating Physician

Finally, injured workers have the right to petition a judge at the Georgia State Board of Workers’ Compensation to order a change in the authorized treating physician.  In my practice I often find that I can negotiate a change in treating physician with the insurance adjuster.  If I see that your current doctor is not doing you any good or if I know that doctor to be biased in favor of the insurance company, then I will call the adjuster and arrange for a change.  If the adjuster will not work with me, then I request a hearing on the issue – although I rarely have to take such issues to court.

I hope you can see from this brief discussion that you do have many options if your current workers’ compensation authorized doctor is either not providing you with quality care or if that doctor is biased in favor of the insurance company.  I encourage you to tap into my knowledge and experience with workers’ compensation medical providers in Georgia.  Call me at 770-351-0801 or email me.  I look forward to hearing from you soon.

I often get these cases four to six weeks later when the injured worker finds himself unable to work because of severe back pain and limited mobility.   In some instances the injured worker faces pressure and even harassment from his employer due to his decreased productivity, and when I get the case, the employer/insurer may try to argue that any serious injury to the employee may have happened at home instead of at work.

Recently I represented a very nice young man in a back injury case that clearly demonstrates why X-rays are insufficient to evaluate back pain.

My client is a 31 year old man whose job involved installing and reinstalling fence posts.  Starting at 8 AM, my client, using a sledge hammer, loosened fence posts by breaking up their cement foundations, cleaned the post base, then reinstalle the post with fresh cement.  Beside using the sledge hammer, my client had to carry heavy buckets of cement and pour them in to holes in the ground.

By 2 PM that day, my client felt a “pop” in his back when he tried to lift the sledge hammer and he felt radiating pain in both legs.  He reported the injury to his supervisor, who referred him to an industrial clinic.  The clinic doctor took X-rays which described “mild disc space narrowing at L4-5″ but no other impairment.

The clinic doctor did put my client on “no work” status, where he remained for two months.  However, during that two months, the employer/insurer did not start his weekly wage benefits (although they did authorize on-going medical care at the industrial clinic).

After two months of suffering intense pain and no weekly wage benefits, my client called me and hired my firm.  I immediately contacted the adjuster and demanded that the employer/insurer commence weekly wage benefits – my client got a check for past due benefits plus a penalty payment arising from the employer’s late payment of those benefits.

Next, I contacted the adjuster to demand better medical care.  The adjuster and I agreed on a more neutral doctor and we agreed that an MRI was necessary to properly evaluate my client’s ongoing back pain.

As I expected, the MRI showed significant damage to my client’s lower back.   Specifically, the MRI revealed:

• a central disc herniation at L3-4 and L4-5 with narrowing of signal canal and mass effect on thecal sac;
• bilateral neural foraminal narrowing  at L4-5 and on the left at L5-S1
• disc dessication at L3-4 and L4-5

My client was subsequently scheduled for surgery and is now recuperating.  Click on the link to view the actual X-ray report and the MRI report:

1. First, the employer/insurer was not looking out for my client’s best interest.  They were satisfied with the somewhat irrelevant X-ray result and would have been happy if my client has just gone away.   MRIs and CT scans are a lot more expensive than X-rays but that is what should have been ordered in this case.
2. Second, even though the employer/insurer authorized industrial clinic treatment and pain medication, they did not start weekly wage benefits.  Why?  I have no idea.  My client was on a “no work” status from one of their doctors but they just did not pay weekly wage benefits.  Perhaps the adjuster messed up or perhaps they were hoping my client would never notice.
3. Third, you have to be your own advocate and/or hire an advocate like me to represent your interests.  My client has no formal medical training but he knew instinctively that something was seriously wrong with his back despite what the X-ray said.   X-rays are not designed to show soft tissue (nerve and/or disc material) damage.  Further, the longer a spinal nerve is compressed the more likely that the patient will suffer permanent damage.  Hopefully, my client will not experience any permanent damage, but I know that he suffered two weeks of unnecessary pain because the employer/insurer was looking for the least expensive option.

“Mr. L,” a private investigator, received significant injuries when he was working a case in bad weather. He was involved in a serious automobile accident when he lost control of his vehicle and crashed into a large pine tree. His airbags deployed and his vehicle was damaged on both sides. As a result, he incurred injuries to his cervical spine, chest, left arm, right elbow, and right shoulder.

He would be treated for his injuries in the local ER and then released into the care of two doctors (Doctors M and N) where he would receive necessary follow-up care. The condition of his cervical spine could not be treated by Doctors M and N, so he was referred to Dr. S for specialized care and further testing. Dr. S performed a CT scan and an EMG. During this time, Mr. L continued to work his PI job when he was confronted by a police officer, arrested, and then handcuffed in the process.

As the arresting officer handcuffed him, he forced the man’s neck and shoulder into a position which resulted in further injury to Mr. L, therefore creating further problems for him! At this time, Mr. L went into the care and treatment of Dr. P, an orthopedist. Dr. P immediately discovered the injuries that Mr. L received during the arrest and diagnosed them as “a right C 6-7 radiculopathy; herniated disc and stenosis at C5-6; as well as a partial rotator cuff tear of the right shoulder.”

In September of 2005, he was referred to a surgeon who would perform “anterior cervical discectomy and fusion with plating.”  The surgeon also placed him on what is called a “no work” status. In other words, he was forbidden from working since he was always in pain and movements that were typically performed on the job could no longer be made. He began receiving regular TTD payments of $394.52. Additionally, he was treated with a bone stimulator to assist with the fusion part of his treatment.

In addition to the bone stimulator, Mr. L was also being treated by having to wear a hard neck brace for the ensuing several months. Additionally, he was prescribed numerous medications including Celebrex, Reglan, and Ultracet because of his intense pain and his limited ROM or Range of Motion. To this day, Mr. L continues to live with neck pain and according to Dr. D, the extent of the damage to the man’s cervical spine is now a source for the chronic pain he has been diagnosed with.

Mr. L continued living in pain and a restricted ROM because of the torn rotator cuff in his right shoulder. He continues to be under the care of Doctors A and P. At that time, arthroscopic surgery was performed on the injured shoulder which didn’t relieve his pain or his symptoms. Despite the fact that Mr. L attempted to go back to work as a PI, it was immediately apparent that the injuries to his right arm and shoulder would cause significant pain so he could not properly perform his job any longer.

At this time, Dr. P also performed another surgical procedure wherein Mr. L was anesthetized and the doctor tried to manipulate his shoulder in order to relieve his pain. To this date, he still encounters pain and discomfort when driving. Everything to this point had failed to ease Mr. L’s symptoms despite his continued medication and therapy. He was then referred (again) to Dr. A for a consult and then a decided-upon treatment. At that point in time, a post-surgical MRI revealed the full extent of Mr. L’s injuries.

Dr. A performed three different procedures including surgery to repair his torn rotator cuff. After this time, Mr. L went to Dr. M for an IME (independent medical examination) where several things were documented such as:

• constantly aching shoulder
• pain encountered with movement overhead
• rotator cuff issues

Mr. L continues to need medication and ongoing pain management. Neither post-surgery medications nor therapies have helped Mr. L live without pain or limited ROM. He is restricted with the amount of hours that he can perform functions including:

• standing
• walking
• sitting
• reaching overhead
• lifting
• pushing
• pulling

He can occasionally bend, crouch, kneel, or stoop; drive no more than 30 minutes at one time; and cannot operate dangerous machinery because of his pain medications.

Since his last surgery, Mr. L’s medical condition has not changed very much and after reading through the medical records I discussed with Mr. L the advisability of settlement.   Mr. L had indicated to me that while he would not be resuming his career as a private investigator, he was exploring other avenues to earn money.  Because he had been a private investigator, he readily understood that the insurance company would likely put  him under surveillance and that if he was seen engaging in any significant activity, the insurer would move to cut off his benefits.  We decided that this was a good time to settle and after several weeks of negotiation the insurance company agree to pay well over six figures.

An overview of DeQuervain’s Syndrome and Lateral CTS

DeQuervain Syndrome is also nicknamed Mother’s Wrist or Washerwoman’s Sprain. In more medical, technical terms it is known as de Quervain’s tenosynovitis, de Quervain’s stenosing tenosynovitis, or Radial styloid tenosynovitis. DeQuervain’s syndrome is an inflammation (or tendinosis) that occurs in the sheath or the tunnel which surround the two tendons which are responsible for the thumb’s movement.

Carpal Tunnel Syndrome or CTS is also referred to as median neuropathy at the wrist and is a condition that results from a compressing or pinching of median nerve in the wrist area. It typically leads to extreme pain, muscle weakness, and numbness of the hand. Night symptoms and waking up off and on are characteristics of CTS as well. The definitive or standard treatment of the condition is a surgical procedure known as carpal tunnel release.

It should be noted that although this surgical procedure effectively relieves the symptoms of CTS, established nerve dysfunction in the form of atrophy, constant or “static” numbness, and weakness are all permanent. Ironically, most CTS cases do not have a specific cause, and some individuals are predisposed at developing the condition based on genetics.

Workers’ Compensation case involving repetitive motion injury: The case of “Ms. C”

Our client, Ms. C, was diagnosed with bilateral CTS as a result of her repetitious work in cake decorating. According to Dr. D, she was diagnosed with “bilateral DeQuervains tenosynovitis and ulnar nerve injury.” As a result of Ms. C’s injuries, she underwent surgeries on both wrists. About 6 weeks later, she went through surgical procedures on the left wrist – carpal tunnel and DeQuervains release surgery.

Ms. C continues living in pain today, even after the different surgeries were performed. Pain is prevalent especially in the hand, at the incision, and in the wrist area. She is currently undergoing physical therapy and has limited range of movement (ROM) as well as the pain mentioned in the above areas. It is evident that she will continue to remain under medical care as well as receiving TTD for quite some time.

Given the residual problems that exist and her surgeries, the PPD (Permanent Partial Disability) rating of each wrist is 10%. Additionally, due to the repetitive nature of Ms. C’s work, it is very obvious that her capacity to perform her job has been severely limited and she will experience continued levels of pain. As a result of her case, we have demanded “X” amount in her Workers’ Compensation case and are awaiting settlement

• if your employer does not provide a valid “posted panel” of physicians you may be able to seek care with any physician and your employer and its insurer must pay for this care
• you can switch between one posted panel physician to another without prior permission
• you can request  a change in authorized treating physician
• you can request a claimant’s IME

The claimant’s IME is a very interested feature of Georgia law.  First enacted in 1990, Section 34-9-201(e) provides that an injured worker can demand an independent medical exam with a physician of his choice, paid for by the workers’ comp. insurance carrier.  In my practice I use this “claimant’s IME” frequently to get a second opinion about questionable existing care or as evidence to support a request for permanent change in authorized treating physician.

Of course your right to a claimant’s IME under Georgia law is not absolute – I recently wrote an article about this topic on one of my web sites.   Take a look if you are not happy with the quality of medical care you are receiving – and let me know what you think.

Worker’s compensation, or more colloquially worker’s comp, refers to a type of insurance which provides certain benefits to employees that are injured on the job such as income due to lost wages and medical treatment. Additionally, the employee relinquishes their right to sue the employer for negligence once they file a worker’s compensation claim. Oftentimes, the trade-off between the assured, limited coverage versus the relinquishing of legal recourse is referred to as “the compensation bargain.”

What is covered and not covered?

While there are some differences between state worker’s compensation laws, the underlying intention and premise of worker’s comp benefits is the same. For instance, in the state of Georgia, any employer who employs three or more individuals, regardless of full-time or part-time status, must provide worker’s compensation insurance. They must also provide the injured employee, at their expense, proper medical care for the on-the-job injury.

Additionally, in cases involving the loss of a limb or the death of the employee is the case, worker’s compensation benefits are also provided. For instance, if you lose an arm or a leg and this causes you to take a lower paying job or position, you are entitled to benefits to cover the loss of wages. Similarly, if you die as a result of the industry, your spouse and children are entitled to benefits.

Other benefits that may be necessary

In addition to the above, not all of the benefits provided by Worker’s Compensation Insurance involve lost wages and medical care. Sometimes it is necessary to provide the injured employee with either rehabilitation benefits or vocational benefits. If this is the case, you will receive these benefits should there be an injury rehabilitation period involved, or if you need vocational training in order to perform a different job or have to take on a new position in the company where you were injured.

Worker’s comp rehab benefits apply to a variety of circumstances when they become necessary due to the on-the-job injury you have incurred. These include:

• Prosthesis and learning how to perform your job with the artificial limb
• Physical therapy required in order so that you can function and perform your job normally
• Speech therapy
• Vocational therapy (learning how to perform a different job)

If you need further information regarding any of the above or have any questions, please call contact us by visiting our website or sending us a comment using the form below.

Any business, corporation, or individual that provides products or services to a business entity and is specified contractually or by verbal agreement is referred to as an “independent contractor.” According to the IRS tax codes, they are not defined or recognized as an employee of that business or corporation. They typically work as they are required to and are usually subject to what is called the Law of Agency.

Additionally, independent contractors (hereinafter referred to as IC’s) are responsible for paying their own federal and state taxes; this is not the responsibility of the business, corporation, or individual who has contractually procured the IC’s products or services. Compensation is normally made on a freelance basis and the IC may be working through a limited company which they own themselves or via what is called an “umbrella company,” a company that acts as the agent for the IC.

Does worker’s comp cover the independent contractor?

Under the worker’s compensation laws of the state of Georgia, independent contractors are not covered for any injury sustained while performing their work. However, the definition of an independent contractor under state statutes has very specific guidelines in order to determine if the individual is an employee or an IC. Employers do not always use this definition correctly or properly. Additionally, the IRS’ guidelines regarding IC’s are not followed by worker’s compensation law.

For these reasons, this is a very problematic area. However, it is extremely ironic that an individual who has opted for being an independent contractor and who engage in dangerous or high risk occupations are not covered by Worker’s Compensation Insurance based on their independence or freedom from an employer. But the fact that employers would love to classify employees as independent contractor is what leads some to cheat and do exactly that so they are not responsible for worker’s comp benefits.

The bottom line is that if a business owner or corporate entity has 3 or more individuals working for them and they require a method, manner, time, and the type of work that the individuals are expected perform, they cannot classify the individual as an IC. Any business owner who employs 3 or more individuals is required to carry Worker’s Compensation Insurance. It is not surprising then that some employers try to “cheat the system” in order to avoid purchasing this type of coverage.

If you would like more information regarding the independent contractor/worker’s compensation issue, please feel free to contact us at our website. We will be happy to answer any questions you may have and provide you with additional information.

More recently I have learned of a case where the insurance company’s defense lawyer used a “request for the production of documents” to demand that an injured claimant turn over his personal computer to be examined by the lawyer.  As you may know, when you file a workers’ compensation claim in Georgia, both sides are allowed to demand information from the other per Georgia’ “discovery rules.”

Apparently, in this case, the insurance company believes that the claimant’s hard drive will reveal damaging information – perhaps photos, evidence of work or physical activity, or it may be just a fishing expedition.

Now, this was not my case, and at this point, at least, this demand for the claimant’s computer has not become a regular part of defense counsel’s arsenal, but I think that this type of request sets a very bad precedent.  I learned about this case in a monthly meeting I attend with a few other claimant’s lawyers who get together to discuss current developments in the law and winning strategies.  All of us in last month’s meeting were somewhat taken aback by this discovery request as well as the presiding judge’s approval of the request.  We all agreed that if any of use are involved in a case and the insurance company asks to look at our clients’ computers, we will fight this request vigorously.

However, I would be remiss if I did not let you know about this troubling development.  It is certainly possible that a Georgia appellate court could sanction this type of discovery under certain circumstances.  Therefore, I will be telling my clients to not only be aware that their outside activities could be videotaped by an insurance company private investigator, but that their emails, photographs and other computer activities could be examined by a hostile adversary in a workers’ compensation case.

And for those of you who say “let them look – I have nothing to hide” I would respond by saying that clever defense counsel can take photos, videos and correspondence out of context that will make you look deceitful.

Case in point.  This week I received the following email from a young woman who works at a factory in north Georgia:

Where I work I have been told that carpel tunnel is not recognized as a workman’s comp injury if I wasn’t having problems with numbness before.  Is this correct?

The short answer is “no, this is not correct.”  Repetitive motion injury (often resulting in a diagnosis of carpel tunnel syndrome) is a very common work injury, especially for factory workers performing manual labor with their hands.

Any employer who tells an employee that “carpel tunnel is not recognized as a workers’ comp. injury” is either very misinformed or downright dishonest.

The point here – if you are injured on the job, you should not rely on your supervisor or the HR person at your job to advise you regarding your rights.  The employer (and its insurer) have a decided interest in avoiding claims.  And they know that if delay reporting an injury or if you do not report an injury accurately to your doctor they stand a better chance at minimizing your settlement or even convincing a judge that you did not really get hurt at work.

If you are injured on the job and you think that you may have a claim, call me or another experienced workers’ compensation lawyer for an opinion.