• 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.

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. His treating physician and a second opinion physician both documented the need for surgery, but the City refused to pay for the procedure, and requested a hearing, causing several months delay and forcing the paralyzed officer to retain an attorney.

Five months later and just days before the hearing, the City finally backed down and authorized the surgery, but not before the injured officer developed pressure sores as a complication from the delay.

The City of Atlanta has financial issues and workers' compensation cases involving governmental entities give rise to special problems.  The plight of the injured officers serves as a lesson about the Georgia workers compensation system in general.  If the City of Atlanta will not stand behind herioc police officers injured in the line of duty where there is a powerful union and an outlet for publicity to shame the City into doing the right thing, what kind of treatment do you expect if you are hurt on your job?

By its nature, Georgia's workers' compensation system operates within an adversarial system.  Your dedication, loyalty and hard work on behalf of your employer mean nothing if you are hurt on the job.  Insurance companies that writer workers comp policies are looking to save money whenever and whereever they can.  Employers are looking to save money on premiums and claims – especially claims involving extensive medical treatment and weekly wage benefits – result in higher insurance coverage costs.

Let the experience of the paralyzed and brain damaged Atlanta police officers show you that injured workers need knowledgeable and aggressive counsel to help you obtain quality medical care from competant physicians in a timely manner.  It may not be pleasant to view your workers' compensation claim as a fight but this is how you must see it.

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.

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.

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.

The first WC Dr. I went to told me I had a pulled muscle and sent me back to work Full duty. I had an MRI, which clearly showed the damage, but this Dr. chose to withold the results from me and off I went to work!   Knowing I could not perform my job, but under the threat of termination, I did as instructed. I could not stay the day and left, got another WC Dr. and when he saw the MRI, he told me about the damage.

I eventually had surgery on my lower back which has not helped very much and another MRI revealed that the disc is still slightly bulging hence the pain I feel daily. The "well known" surgeon, has chosen to release me to work on light duty and has changed his mind about my neck. Apparently he has decided that it is due to "age" (I am 45). He refuses to treat my neck and has become defensive and evasive in my dealings with him. It is like all of a sudden he is done with my treatment even though I am only half way treated. I am in constant pain and cannot do anything!

By the way, my job was loading 8,000 pounds of freight a day, and this Dr. says it suddenly has nothing to do with 20 years of that! How can a Dr. turn on his patient like this? WC has been as unhelpful as they can be. I know the Dr. has been told by WC to end his treatment and get rid of me. What is my recourse? I am young, have a young family and can't go on in this pain and do not feel that I deserve this lack of medical care.

–Darryl

Jodi Ginsberg responds:  Darryl, thanks for your question.  In many cases if you are terminated while involved in a workers comp case, the termination can actually help your case. If you are terminated for no justifiable reason (typical reasons we often see include "disobedience," "company policy violation," etc..) and you are on light duty or no work status then your case is actually enhanced because the insurance company no longer has the leverage of finding a light duty job for, after which they could cut off your temporary total disability benefits.

We sometimes see a situation where our client is on a light duty job that was created at the request of the insurance company, but the employer does not like the idea of having a non-productive employee hanging around and the employer ends up firing the injured worker.  In such a case the insurance company then has to start paying temporary total disability benefits again because the claimant is no longer working.

Where you potentially face a problem with your case is when you are returned to full duty work.  If you have been released to full duty and are subsequently fired, then you will most likely have to go to court (the State Board of Workers Compensation) to get your benefits started. 

As you can see, your work status (full duty vs. light duty vs. no duty) is very important as is the timing of any termination.

At this point, it appears that you have been released to full duty, therefore you are exposed. There are several options here, including negotiating an agreement with the insurance company to refer you to a new treating physician, or filing for a Hearing to Change the Authorized Treating Physician, using your "claimant's independent medical exam."

Unfortunately you have discovered the truly unpleasant side of Georgia workers compensation.

Technorati Tags: termination while on workers compensation, authorized treating physician, georgia state board of workers compensation, light duty work

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.

Technorati Tags: catastrophic injury and georgia workers compensation, subsequent injury trust fund, medicare set aside, settling a catastrophic georgia workers' compensation case

Technorati Tags: employee terminated after suffering on-the-job injury, workers compensation settlements