Generally the best time to settle your case is when significant uncertainty remains regarding your future medical and lost wage eligibility.  Remember – insurance companies are in the business of risk management.  If we can show them that your future medical costs could soar into the tens of thousand and that  your return to full duty work could be far into the future, they will be more likely to offer more money to eliminate that risk.

I tell my clients that identifying that “sweet spot” is more art than science.  Sometimes a single line in a medical record, or a brief comment from my client will tell me that we are entering the zone where my client’s medical condition is stabilizing but enough unknowns remain for me to put forth a settlement demand that will result in a fair and generous settlement.

Issues arise when the nurse case manager tries to influence your doctor about signing off on a return to work release or suggesting to the doctor that he include in his reports statements which say that your pain has subsided and that you are doing better.  Some nurse case managers even try to influence the drug prescriptions written by the doctor.  Others appear at each one of your appointments and try to stay in the room when your doctor examines you.  You have the absolute right, by the way, to insist that your nurse case manager step outside during your examination and conversations with your doctor.

Other issues arise when the insurance adjuster uses the presence of the nurse case manager to damage the injured claimant’s claim and to improperly influence medical treatment.

While I have seen instances where the nurse case manager truly cares about the health and welfare of the injured worker, more often than not the nurse case manager serves as the eyes and the ears of the insurance adjuster, with the primary goal of minimizing cost and to the insurance company.

I generally take a very cautious view towards nurse case managers and I will not hesitate to demand their removal from your case, as Georgia law allows a claimant and his attorney to reject the participation of a nurse case manager. I would, for example, most likely terminate the participation of a nurse case manager who wanted to stay the room during my client’s examination with his doctor.

Case Study: Insurance Adjuster Attempts to Use Nurse Case Manger Improperly

Recently, I represented an injury worker in a case (which we have now settled) where the insurance adjuster hired a nurse case manager because my client’s injury was complicated and because the injured worker decided to move from Georgia to another state.  Because of these factors and because my client needed specialty care, I agreed to the participation of a nurse case manager for the purpose of coordinating doctor’s appointments out of state, and to help arrange for physical therapy and rehabilitation.

As permitted by Georgia law, I asked the adjuster for copies of the nurse case manager’s notes as well as the memos and letters issued by the adjuster to the nurse case manager.   Here is the actual text of a memo written by the adjuster to the nurse case manager:

Nurse X…” our main concern is to have the claimant undergo the surgery, if Dr A agrees that it is indicated, and to get her released to full duty and maximum medical improvement status ASAP. We are continuing to pay her temporary total disability benefits. Please note she is represented by an attorney.  If you receive any requests for Attorney Ginsberg, do not comply but forward the request to me for approval. I would ask that you send your status reports  directly to me only and I will determine what information should be forwarded to (injured workers) attorney.

As you can see from this memo, the adjuster is telling the nurse case manager not to cooperate with me and that the adjuster intends to withhold information from me!

The nurse case manager (to her credit) responded to the adjuster and advised the adjuster that Georgia law obligated her to cooperate with me.  Here is what the adjuster said next:

I am aware of the statutory requirements in Georgia and I do not have a problem with your complying [with the law] in providing Attorney Ginsberg with all correspondence.  What I do not is any ex parte communications with Attorney Ginsberg. I want a copy of ALL emails, faxes and letters to her. I have had a problem with Attorney Ginsberg in the past with her over involvement with this claim and her attempts to direct  how this claim is managed.

Now, we have the adjuster continuing her improper and unethical behavior by re-stating that the nurse case manager should not respond to correspondence directly from me.

Once I saw these memos, I immediately wrote the adjuster to advise him in no uncertain terms that his actions in trying to deny me access to the nurse case manager’s notes was improper under Georgia workers’ compensation law.   I also advised the adjuster that if this case went to a hearing, I intended to put him on the stand to explain his actions to a workers’  compensation judge.

After receiving my email the adjuster did not respond to me but turned this case over to an insurance company lawyer.   The lawyer cooperated fully with me and agreed to a very favorable settlement, which I suspect had something to do with my discovery the illegal actions of the adjuster.

This kind of nonsense goes on all the time and if you or your attorney is not paying attention you will find yourself at a disadvantage in terms of access to medical and other case records.  I will, by the way, take as a compliment the adjuster’s complaints about me and my efforts to “control” the management of my client’s claim.  Georgia workers’ compensation is an adversarial system and I will not allow an insurance adjuster (or a nurse case manager) to get away with anything that damages my client’s case.

When her initial workers’ comp benefit was calculated, she was awarded a weekly TTD benefit that was a gross underpayment when you looked at all the care she needed and the specifics of her case. After a careful review of the case, it became obvious that her benefit was mis-calculated due to her position as a waitress – where a lot of the money she brought in was due to TIPS.

You see, many times servers and bartenders and other workers who bring in significant income from tips end up experiencing improper wage calculations and mis-calculations of benefits owed when in pursuit of workers’ comp cases. The same is true for workers who work off commissions or receive large bonuses.

In my client’s case, we were able to get her the benefits she deserved (we ended up securing higher TTD benefits, plus TPD and PPD as well), and we were also able to re-calculate her wages to reflect a more accurate picture of what she had been making at the time of the accident. This is why it pays to have a workers’ comp attorney helping you with your case – we see these situations often and can often help you maximize your benefits.

In any case, the tip of the day is this: To anyone bringing in significant income from tips, commissions, or bonuses, KEEP GOOD RECORDS in the event that you are one day injured and have to pursue a workers’ comp case!

How can an account at Facebook or many of these other sites hurt your workers’ compensation case?  When you create a profile on Facebook, your account has a default privacy setting that offers no privacy.  Anyone who has a Facebook account anywhere in the world can find your profile and read what you have posted, what others have posted on your “wall” and view photos that have been “tagged” with your name.

Insurance defense lawyers are well aware of Facebook, and they are aware that many Facebook users may not be very savvy about changing privacy settings.   Perhaps there is a photo of you attending a ball game or a family gathering.  Maybe you listed yourself as the CEO of ABC Enterprises. Thanks to New York workers’ compensation lawyer Jim Reed who posted about this issue on his New York InjuryLaw blog.

Photos and updates can easily be taken out of context.   Even your frequency of posting can be used as evidence that you have the capacity to perform clerical type of work.   Posts on Facebook and other social media sites can be used against you to put you on the defensive and as leverage to reduce the value of your case.

So, if you enjoy using Facebook or similar sites, take a few minutes to learn about the privacy settings.  Block your profile to all but known friends and avoid “friending” someone that you don’t really know.

If you were not already aware that there is no real privacy in the world, now you know.  Take steps to protect yourself.

I have been classified Catostrophic by GBWC and am totally disabled. Everyone concerned has no objections. My insurance Co. has said that they may want to settle. Medicare setaside has already benn set. What should I be looking for in a settlement. Is there an amount that I should be looking for . I am 55 and will not be able to work again. My claim is covered by the SITF. , but my Ins. Co. is in rehab. Thanks I look forward to your answers.
–James

Jodi Ginsberg responds:  James, thank you for your email.   Here are my thoughts.

I look at a number of issues when settling a catastrophic workers’ compensation claim.  By the way, since some of those reading this blog entry may not be familiar with the term "catastrophic injury," I would like to briefly define the term.  Under Georgia workers’ compensation law, the State Board has the power to designate a claimant’s injuries as catastrophic.   This means that the Board recognizes that a claimant like James will not likely be able to return to work because of the severity of his injuries. 

Most importantly, once a claim has been deemed catastrophic, the 400 week cap on benefits does not apply.  In theory a catastrophic claimant could collect temporary total benefits for the rest of his life, as opposed to a maximum of 400 weeks for a non-catastrophic claim.  Note, however, that just because a claim has been deemed catastrophic, there is no automatic right to 400 weeks.  In theory a treating doctor could return a catastrophic claimant back to work.

That being said, catastrophic claims have a higher value for settlement purposes since the employer/insurer’s exposure is unlimited.  Also, when a case is deemed catastrophic, a "rehabilitation supplier" is assigned to your case – these case workers are neutral in theory, but usually their interests lie more with the insurer.

Now, back to James’ question.   I go through a checklist to evaluate the value of a catastrophic claim.  My checklist includes factors like:

• what is the insurance company’s exposure for future temporary total disability – what do the actuarial tables say about your projected lifespan?
  

• how much future medical care will you require?
  

• what is the likelihood of needing future surgeries?
  

• will home modifications be required because of your injuries
  

• will vehicle modifications or a vehicle purchase be required
  

• will home health care services be needed?
  

• what are the provisions of the Medicare Set Aside
  

• since the Subsequent Injury Trust Fund (SITF) is involved, and your because the insurer is not fully solvent (the Insolvency pool is involved), timing would be an issue.  My experience has been that the SITF complicates matters because there are layers of bureaucracy involved in getting an SITF case settled
  

• what future benefits will Social Security provide for post-settlement living costs
  

• would a structure settlement be in your best interest?
  

• should you settle in the first place? – sometimes your best bet is to maintain the status quo and continue to receive benefits for a period of months or years

These factors are among the ones that I consider when looking at a catastrophic case.  I can’t really comment more without  knowing about your specific case, but I think you get the idea.  If I can be of service to you, please do not hesitate to call me.

[tags] catastrophic injury and georgia workers compensation, subsequent injury trust fund, medicare set aside, settling a catastrophic georgia workers’ compensation case [/tags]

Jodi Ginsberg replies:  I look at a number of factors when creating a demand for settlement.  There are two "big picture" concepts that apply:

1) the best time to settle is when there is maximum uncertainty in your case.   Perhaps you are facing surgery, which would mean unknown medical costs and unknown lost wage benefits payable.  Perhaps your doctor is proposing conservative treatment in the form of several months of physical therapy after which possible surgery.  As your lawyer, I can make the argument that the insurance company’s potential financial exposure might be XYZ dollars.  If your doctor has released you back to work or if your doctor has already performed surgery and you are participaing in an uneventful rehabilitation, there is less uncertainty and less reason for the insurance company to value the case at a high number.

2) insurance companies look at their potential financial exposure when deciding how much to offer you in settlement.  They don’t care who you are or what you did.   They are only concerned about money.   If we can convince them that they may be on the hook for hundreds of thousands of dollars, they will offer substantially more than they would if they calculate their exposure at a few thousand dollars.

Here, my biggest concern has to do with the age of your case.  First, you may have a statute of limitations problem.  Second, you would have to link your current problems back to an accident that happened two years ago, despite your return to work.  The insurance company will argue that any current problems may have to do with your post-December, 2004 work (or perhaps non-work) activity.

Returning to work, as you may have guessed, can create issues with settling a case.

They have already paid you PPD (permanent partial disability) so you would need another doctor to give you a higher PPD rating that what you already have.

I think that your case has some settlement value, but perhaps not as much as it would have had in 2005.  If you want to call me to discuss, please feel free to do so.

[tags] workers compensation settlement, ppd rating, ttd benefits, georgia worker compensation [/tags]

If the insurance company has paid benefits, paid for medical care and accepted the on-the-job injury claim as compensible, then the only type of settlement permitted is a standard settlement.

On the other hand, if the insurance company has denied (controverted) the claim and not paid benefits, then the case can be settled with either a standard settlement or with a no-liability stipulation. In a no-liability stipulation, the parties agree to disagree. The employer/insurer denies that a compensible accident happened but agrees to pay a lump sum to settle the worker’s outstanding claim for benefits.

Often, my client (the injured worker has a hard) with the concept of a no-liability stipulation. Frequently, the language of the stipulation contains assertions by the employer that the accident did not happen at all. Even if a substantial sum of money is involved, many injured workers have a hard time signing off on a document that essentially says that they are lying.

In my role as the claimant’s lawyer, my focus is on getting my clients enough money and sufficient medical care so that my client can live his life with dignity. Sometimes, as a matter of business, a no-liability stipulation is the best alternative.

A few weeks ago, I settled a case with a no-liability stipulation and I believe that my client is better off with this solution than if we had taken the case to the State Board of Workers’ Compensation and won.

At the time of his accident, my client was a 30 year old man who worked for a poultry processing plant. He was told by his supervisor to clean out a large machine that made filets out of chicken breasts. This machine was a large tube (large enough for a man to fit inside) with sharp blades rotating alongside a conveyor belt that carried the chicken breasts.

My client crawled onto the conveyor belt and started to clean the blades when someone turned the machine on. He tried to pull a manual cut-off rope but the manual cut off did not work. He tried to yell for a co-worker, but the person on watch did not speak English. My client was cut all through his midsection by the sharp blades and suffered a crushed pelvis.

Although there were numerous witnesses to this accident, the insurance company denied coverage on the grounds that my client was engaged in “wilful misconduct.” The insurance company’s adjustor advised me that my client’s supervisor would testify that my client failed to use a magnetic card to turn off the machine himself.

My client and several of his co-workers advised me that no one had ever trained them in the use of the magnetic cards and that the employees were told to sign forms verifying their training – despite the absence of actual training – if they wanted to get paid. So, every month, the employees of this poultry plant signed forms verifying their completion of training courses when no such courses were ever given.

As you might imagine, my client was extremely hurt and upset that his employer was trying to put the blame on him for this horrible accident. His problem, however was that he needed immediate medical care if he hoped to recovery.

I recognized that part of what was motivating the company was a fear of huge liability – not just this workers’ compensation case, but perhaps an OSHA investigation and even criminal negligence charges.

I suggested to the adjustor that rather than firing my client, they keep him on as an employee and cover the cost of his group medical insurance. I pointed out that if they totally cut him off and we ended up winning at a hearing 6 months down the road, they would have a much more disabled person requiring much more intensive and expensive rehabilitation.

The adjustor agreed and the company allowed my client to continue to receive medical care. Six months later, when we went to a mediation, my client was recovering from his injuries and was ready to move on. Our “no-liability” stipulation included $80,000 in cash plus the insurance company agreed to reimburse the health insurance carrier for all medical costs. In addition, the employer agreed to provide COBRA medical coverage to my client at a discounted rate of less than $100 per month.

Was my client made totally whole? No, of course not. His injuries are pemanent and he will never be able to perform certain types of physical activities. He also carries with him some resentment against his former employer for trying to shift the blame for his accident on to him.

However, in this case, the no-liability stip solution made sense for everyone. My client got the medical treatment he needed and avoided the stress of extended litigation. He also got a lump sum of money that will help him cover his bills until his recovery is more complete. Had we taken this case to a hearing we might have won – but then again, the employer was prepared to present testimony and written documentation supporting its position.

After laying out the possiblities, my client decided that the no-liability stipulation was the way to go and I agree with his decision. What do you think?

[tags] no liabilty stipulation, Georgia workers compensation on-the-job injury-georgia workers’ comp mediation [/tags]

This case involved a 47 year old construction worker who was struck in the head by a 100 lb. beam that fell on top of him from a height of over 14 feet. Although my client was wearing a hard hat, the impact from the steel beam knocked him unconscious and resulted in a fractured vertebrae in his neck.

Over the next 12 months, my client, acting without a lawyer, looked to his employer’s workers’ compensation insurance carrier to provide medical care. During that time he visited six different doctors on referral from the worker’s comp adjustor. Each time, he had to fill out an extensive new client questionnaire and he had to explain, as best he could, what had happened to him. This repeated new client intake process was very difficult for my client because he was in pain, suffering from memory loss and depression as well as severe emotional turmoil resulting from his accident. Despite all of these doctor visits, my client had not been referred for surgery and his condition was not signficantly improved.

Approximately 12 months after the accident, this gentleman called me to ask for help with his workers’ compensation case. Because the medical treatment so far had not helped much, I was able to convince the adjustor to approve as treating physician a top orthopedic surgeon here in the Atlanta area. My client subsequently underwent a two level fusion in his cervical spine (neck). We were then able to get a pain management physician approved as well as a psychiatrist to help with my client’s depression. And, after deciding that the timing was right to settle, we engaged in arbitration with the insurance company and agreed to settle the case for $195,000.

This was not a case where the insurance company denied the claim – there was no dispute that my client’s injuries arose out of and in the course of employment. When I was retained, my client was receiving his weekly wage benefits. The problem I had to deal with here was the insurance company’s unwillingness or inability to offer my client needed medical care.

Because my client was in pain, emotionally distraught and, most of all, unfamiliar with the Georgia workers’ comp system, he was not able to formulate a “big picture” strategy for his case.

The lessons you can learn from this case:

1. you need to have a case strategy to follow and you need to demand that the insurance company fulfil its responsibilities to you
2. do not assume that because the insurance adjustors are polite and cooperative that they are also working in your best interest.  The adjustor’s primary goal is to minimize the insurance company’s financial exposure
3. physicians on the “posted panel of physicians” or who are referred by the adjustor may have divided loyalties.  You and your attorney are entitled to participate in the choice of physicians who treat you
4. delay in getting appropriate medical treatment can result in longer recovery times and less satisfactory results

[tags] georgia workers’ compensation, posted panel of physicians, workers comp settlement [/tags]