Perhaps no other element of a workers compensation case gives rise to as many questions as the subject of when and how to settle your case. In my opinion the timing of settlement negotiations can greatly influence the outcome of your case. Settle too soon and you may end up paying out of pocket for expensive medical services. Wait too late and your case can grow stale if the insurance company can calculate with certainty its exposure on your case.
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.
Filed under Maximizing your settlement, Winning Strategies by 
This past July, I discussed on this blog issues related to the participation of a nurse case manager in a Georgia Workers’ Compensation claim. In that post I pointed out that insurance adjusters sometimes assign a nurse case manager to a particular claim. The nurse case manager is not an adjuster, and they do not deal with issues related to wage benefits. Instead, they deal with the medical component of your case only and a nurse case manager can be helpful in setting up medical appointments, coordinating transportation to and from doctor’s visits and working out issues with prescriptions.
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. More on Insurance Adjuster Attempts to Use Nurse Case Manager Against Injured Worker’s Interests
Filed under Case studies, Maximizing your settlement, Winning Strategies by
Repetitive motion injuries
Repetitive motion injuries result from the repeating tasks required by certain jobs. It is also referred to as RSI or Repetitive Strain Injuries or Repetitive Stress Injuries and involves the musculoskeletal and nervous systems. These injuries can result from a number of factors such as:
- awkward and sustained positions
- forceful exertions
- pressing against a hard surface (or mechanical compression)
- repetitive tasks
- vibrations
Non-specific arm pain and upper limb work-related disorders are also included where RSI’s are concerned. In many cases of this nature, it is apparent that psychosocial and physical stressors play a significant role in these types of injuries.
RSI Symptoms
Patients who have been diagnosed with RSI typically experience the following symptoms:
- lack of endurance and weakness
- pain experienced in the arm, back, hands, shoulders, and/or wrists
- pain that worsens with activity
When you contrast RSI injuries with CTS injuries, the symptoms of the latter tend to be both diffuse and non-anatomical in nature. It crosses the proper distribution of nerves and tendons as well as not being characteristic of specific discrete pathological conditions.
Ms. A and her bilateral CTS case
Ms. A is a candidate for bilateral CTS surgery due to injuries incurred from a bilateral injury to her upper extremities while performing her job. Her job required a great deal of repetitive arm and hand work as she cut and made fiber optics. Despite experiencing pain in her upper extremities, she continued to work until she was no longer able to. Her employer referred her to Dr. S who began treating her with physical therapy. When her conservative care and PT didn’t relieve her pain, she was referred to Dr. B.
Dr. S splinted her arms and put her on “light duty” status. Unfortunately, there was no light duty work for her on the job and she could no longer perform regular work, so she was sent home and remains on full disability (temporary total disability) to this day. Dr. S ordered an MRI for Ms. A and it revealed that she had lateral epicondylitis partial thickness tearing in the proximal common extensor tendon. The proposed treatment is an initial surgery on Ms. A’s right elbow. Once the right elbow heals, she will have surgery on her left elbow.
Ms. A is now considering whether or not to settle. On one hand, there is a high degree of uncertainty with regard to the nature, extent and future cost of future medical care. Often settlement values are higher when the insurance company is facing open ended medical costs. On the other hand, if my client settles and her future medical needs involve multiple surgeries and physical therapies, even a settlement of $100,000 or more will not adequately compensate her. This dilemma of whether and when to settle is one of the more difficult decisions for a significantly injured workers’ compensation claimant.
Filed under Arms & Hands, Carpel Tunnel, Case studies, Winning Strategies by
Case Study: Private investigator sustains 2 separate injuries while on the job
“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.
Filed under Arms & Hands, Back & neck injuries, Case studies, Georgia Workers' Compensation, Winning Strategies by
I often explain to my clients that a major struggle in any workers’ compensation case relates to medical care. Georgia law gives employers the first opportunity to decide where an injured worker must go for treatment but this control is not complete:
- 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.
A front page story in the Sunday, May 24, 2009 edition of the Atlanta Journal-Constitution details the struggle of five catastrophically injured Atlanta police officers to obtain needed medical help from the City of Atlanta’s workers’ compensation office. Each of these police officers was injured in the line of duty – with injuries ranging from brain damage to paralysis arising from gunshot wounds to the spinal cord.
Like many city and county governments, the City of Atlanta “self-insures” against workers’ compensation claims, meaning that weekly wage benefits and funds for medical treatment come directly out of the City’s budget. The City does use a private claim’s administration service called NovaPro Risk Solutions out of San Diego.
The City is not denying responsibility for paying wage or medical claims, but it has been refusing to pay for various medical procedures and medical devices.
In one instance a police officer who had been rendered a parapalegic from a gunshot wound needed surgery on his Achilles tendon because his feet kept slipping off his wheelchair footrests. More on Injured Atlanta Cops Fight Workers Comp System
One of the issues that I sometimes face arises from my client’s initial report of his injury. When you are hurt on the job, you can help your case greatly by thoroughly and accurately reporting your injury.
Don’t just talk about the one injury that is hurting you right now. Instead, take an “inventory” of every part of your body that was involved. Don’t exaggerate, but don’t minimize problems either. For example, if you fell off a ladder, you might have immediate back pain. But, you might also have:
- concussion
- headaches from the hard landing or from hitting your head
- neck pain from sudden impact
- foot problems from landing on your foot ackwardly
- knee problems from landing on or twisting your knee
- hand problems from falling hard on your hands
Your employer may send you to a doctor. When you meet with the doctor, you want to begin creating an accurate paper trail. Report each and every body part that is affected, even if the doctor does not seem interested. Most doctors ask you to fill out an intake form – that form will become part of your case record. Use it to identify all problems.
If you fail to list all problems at the outset, the insurance company may use this gap to deny coverage and to limit treatment. If the insurance company identifies your case as a low back/hip case, they may not authorize your doctor to treat your knees or feet. You could literally find yourself being treated for one part of your leg, but not another part because the doctor is specifically not authorized to treat that other part.
It may sound crazy to you that your doctor will only treat part of your problems, but this is a common situation in workers compensation. The insurance companies put very specific limits on what they will pay the doctors to treat.
Now, what happens if you did not give your supervisor or your initial treating doctor an accurate description of your injury? It may not be too late. You may still be able to update your report of your injury and preserve your rights. I would advise you to speak to an attorney before trying to do this on your own.
Here is an example from one of my recent cases that demonstrates the importance of accurately reporting your injury.
My client was a carpenter who was carrying a 2×4 board on his left shoulder. His right hand was in his apron He fell down and landed on his left shoulder, leaving him in severe pain. The employer sent him to a local emergency room where he complained about his left shoulder. An MRI was done, showing a torn left rotator cuff that required surgery.
Following surgery and physical therapy, my client remained in severe pain. At this point, the injured carpenter called me. My first question – are you having headaches? I asked this because I know that headaches are a common symptom of cervical (neck) disc problems. I used the “employee’s second opinion” to have my client seen by an orthopedist who specializes in neck injuries. Sure enough, my client had a herniated disc in his cervical spine.
This cervical spine issue necessitated additional surgery and rehabilitation. Because the injury was more severe than originally thought, this case had significantly more settlement value as well. My client did have any medical background and there is no reason for him to know about the anatomy of the neck and shoulder. I do have an understanding of this anatomy because I have represented dozens of claimants with similar issues. This is a case where I was able to use my experience and knowledge for the benefit of my client.
Filed under Back & neck injuries, Georgia Workers' Compensation, Medical benefits, Winning Strategies by
