Cervical injuries made worse by returning to the job

Mrs. B is a 20-year employee of a medical practice.  As the office manager, she was involved in all facets of managing the practice, including patient care, insurance submission, and handling other patient paperwork.   Mrs. B is also a licensed practical nurse and she also served as a nurse, frequently making rounds with doctors at the hospital during her work shift. Mrs. B was injured when she felt a “pop” in her neck while assisting two co-workers move office furniture and other office equipment.

After moving the furniture and equipment, Mrs. B started to experience severe pain in the arms and neck.   Additionally, she noticed that she had numbness and pain in her right leg. Despite her pain and numbness, Mrs. B. returned to work the next day and continued working for 9 full months until the pain and discomfort became so intense at she could not function.   Finally, Mrs. B returned to the panel physician who took her out of work and prescribed pain pills and physical therapy.

Perhaps because Mrs. B has a medical background, she sensed that the care she was receiving under workers’ compensation was not sufficient, so she decided to seek counsel, even though she was receiving her weekly income benefits of $500 per week and the employer/insurer was not denying her claim.

When I got involved in this case, I recognized that Mrs. B’s injury was most likely a surgical problem.   After reviewing literally thousands of pages of medical records, I have a fairly good sense of which doctors I like my clients to see for various medical problems and I wanted Mrs. B to see a particular surgeon.   The insurance adjuster would not agree to my preferred doctor so I directed my client to return to her panel physician and request a referral to this particular doctor, which he agreed to do.   Under Georgia law, this referral from an authorized treating physician to another physician must be honored by the insurance carrier and the adjuster reluctantly agreed to authorize my preferred surgeon.  In my view, all parties – my client and the insurance company will benefit from this surgical referral as my preferred surgeon is one of the best specialists in the state for neck surgery.

Mrs. B underwent a multi-level cervical fusion and followup rehabilitation.   Mrs. B had expressed a desire to return to her job but, as I expected, the insurance carrier demanded a resignation as part of any settlement.  Mrs. B recognized that she would not be able to return to her past work and she authorized me to enter in to settlement negotiations.  Our final settlement consisted of cash and 24 months of “open medical” care with the surgeon

I filed chapter 13 about 2 years ago, now I got hurt on Job and am receiving W.C.  In the process W.C. is to build a new house for me.  How does chapter 13 come to play?

My husband, Jonathan Ginsberg, has been a bankruptcy lawyer in Atlanta for over 20 years.  I asked him to respond to this question.  Here is his response:

Charlie, first of all, it is important that both your workers’ compensation lawyer and your bankruptcy lawyer know about your accident, the house construction benefit and possible settlement.  Assuming that your weekly wage benefit check is less than your regular salary, you need to make arrangements to keep your Chapter 13 plan current.  Given your injury, your bankruptcy lawyer may be able to amend your plan so that your payment is reduced to account for your reduced income.   Assuming that you foresee a settlement within the next three years, you may be able to make up the difference in a lump sum at settlement.

I have always taken the position that lump sum settlements in workers’ compensation cases may be treated as exempt property purusant to Georgia’s exemption statute.  You should speak to your bankruptcy lawyer about this.  This means that you may be able to keep some or all of your settlement even if your plan is paying only a small percentage back to your unsecured creditors.  In a similar vein, I would argue that the new house should be considered as exempt because it is necessary for your on-going support and maintenance.  Here, too, you need to seek counsel from both your bankruptcy lawyer and your workers’ compensation lawyer.

Finally, you need to advise your workers’ compensation lawyer to file an entry of appearance in bankruptcy court and to file a motion to approve both any settlement and any attorney’s fees claimed.  Bankruptcy judges usually do not have any problem with approving either a settlement or a fee contract, but if you don’t follow the required procedures, there could be delays.

This about it this way – if you were to drive your car into a repair garage, would you expect the mechanic to diagnose exactly what is wrong with your car before driving it or opening the hood?

When I open a new file, the medical record often is not very complete.  Many times no objective testing – MRI, CT scan, even x-rays – have not been done.  Objective testing helps doctors and judges evaulate the severity of your injuries.  A herniated disk or a broken bone will be much more compelling evidence than a generalized pain syndrome and thus impact settlement value.

I would also want to know who your authorized treating doctors are.  Over the years, I have become very familiar with many of the doctors in North Georgia who handle workers compensation claims.  If your treating doctor is very conservative and is likely to return you to work with no restrictions, your settlement value will be affected.  If I see an angle to argue for a change in treating physician, your case will be more valuable.

In my experience, claimants sometimes don’t realize just how seriously they are hurt.  If you are having excruitating pain in your back, you might not think abuot that nagging ache in your heel – but down the road, your heel problem and resulting inability to walk could have a more lasting impact on you.  A big part of my job is to ask the right questions based on what I would expect to see given a particular injury.  Shoulder pain may mask a neck injury.  Knee pain may mask foot problems.

Along these lines, as your case develops I will be thinking about whether you will be able to return to your past work, whether your employer is likely to create a job to accommodate you and whether you will be able to return to a job where you can earn close to what you have earned before.

In my view, the timing of our settlement demand i crucial, and the decision about when to talk settlement will be the result of a lot of discussion between you and me.  My job as your counsel is to give you the pros and cons of settlement and to help you make a good decision for yourself and your family. 

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%)

Category II (5-8%)

May include:

Or:

Or one of the following Fractures:

Category III (15-18%)

Significant signs of radiculopathy:

Or:

Or one of the following Fractures:

Category IV (25-28%)

Or:

Category V (35-38%)

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.

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]

Chris describes the concept of a Set Aside as follows:

The concept of the law is that Medicare is a "secondary payer" when any other form of insurance exists to pay claims.  Before 2001, that meant traditional health insurance, but starting in 2001 Medicare began to interpret that to mean that even third party insurance, specifically Worker’s compensation settlements that "cut off" future medical benefits (clinchers), would be subject to the Medicare Secondary Payer regulations. This meant that any Workers Compensation clincher that resaonably cut off future workers compensation benefits would have to be reviewed by CMS to determine if there should be an MSA "allocation."  Accordingly, Medicare would look at the case and decide what the future medical costs for the injury would be.  The future costs would be placed in a MSA trust for the payment of medical services related to that claim.

We frequently have to deal with Medicare in large settlements, and often the Set Aside negotiations can add time and aggrevation to a settlement.  However, Medicare Set Asides are often a fact of life that we must be aware of prior to entering settlement negotiations.

[tags] Medicare Set Aside, Medicare Secondary Payer, Georgia Workers’ Compensation, Workers compensation settlements, Medicare lien [/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]