What is the biggest trap that you can face in your Georgia workers’ compensation case? Without question, issues relating to your return to work after being injured must be handled very carefully.
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.
Filed under Georgia Workers' Compensation, Income benefits, Returning to work, Winning Strategies by 
I am often asked how I know when a case is ready to settle. There are many factors that go into this judgment call, one of the most important being the disability rating assigned to my client.
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%)
- No significant clinical findings
- No muscle spasm or guarding
- No documentable neurological impairment
- No alteration in structural integrity
- No fractures
Category II (5-8%)
- History and exam relevant to a specific injury
May include:
- Muscle spasm
- Asymmetrical loss of range of motion
- Complaints of radiculopathy without objective findings
- No alteration of structural integrity
Or:
- Significant radiculopathy
- Disc herniation at expected site verified by imaging study
- Patient improved after nonoperative treatment
Or one of the following Fractures:
- Less than 25% compression of one vertebral body
- Healed posterior element fracture without loss of structural integrity or radiculopathy
- Spinous or transverse process fracture with displacement
Category III (15-18%)
Significant signs of radiculopathy:
- Dermatomal pain and/or sensory loss
- Loss of reflexes
- Loss of strength
- Muscular atrophy
- Neurologic impairment verified by electrodiagnosis
Or:
- Significant radiculopathy with disc herniation verified by imaging study
- Improvement of radiculopathy following surgery
Or one of the following Fractures:
- 25-50% compression of one vertebral body (healed without loss of structural integrity)
- Posterior element fracture with displacement into the spinal canal (healed without loss of structural integrity)
Category IV (25-28%)
- Bilateral or multilevel radiculopathy.
- Alteration in motion segment integrity determined from flexion extension radiographs as 3.5mm or greater of translation or angular motion 11 degrees greater than each adjacent level (radiculopathy need not be present).
Or:
- More than 50% compression of one vertebral body without residual neurological compromise.
Category V (35-38%)
- Significant impairment of the upper extremity requiring adaptive functional devices.
- Single level total neurologic loss.
- Multilevel neurological dysfunction.
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.
Filed under Permanent impairment benefits, Settlements, Understanding the Law, Winning Strategies by
I have worked for my employer for 20 years. Due to the type of extreme work that I did, over a period of time I damaged my spine and was told I had 2 herniated discs, one in my neck, the other in my lower back. Both areas also have bone spurs.
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.
[tags] termination while on workers compensation, authorized treating physician, georgia state board of workers compensation, light duty work [/tags]
Filed under Returning to work, Winning Strategies by
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?
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will home modifications be required because of your injuries
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will vehicle modifications or a vehicle purchase be required
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will home health care services be needed?
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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
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what future benefits will Social Security provide for post-settlement living costs
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would a structure settlement be in your best interest?
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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]
I was in Savannah, GA. attending a seminar at my employer’s request. On Thursday, 9/21/06, I slipped in the bathtub and suffered a spiral fracture of the fifth metatarsal bone in my left foot. As a result of that injury, I had to undergo a four-hour surgery on 10/11/06 to repair the fracture. I have not been able to return to work due to doctor’s orders. Last Friday I got a phone call from my supervisor who told me I was being terminated. Jodi Ginsberg responds: I am happy to speak with you about your case; your injury; rights to benefits; specialized medical care; potential lump sum settlment and reason for termination. I am curious why your employer called you to terminate you. Is it due to the time missed from your injury? Are you on TTD (temporary total disability) benefits while on the no work status? If so and there is no reason to fire you other than injury then this termination may actually help your case. If you are being terminated because of an on-the-job injury, you may be gaining additional leverage to obtain more weeks of TTD benefits, and perhaps a larger lump sum settlement. Assuming that your doctor releases you to either light duty or full duty work, the question becomes whether your employer has a job for you. If you have been terminated, this question is more difficult to answer and you can use this uncertainty to argue for a larger settlement. In addition, when you settle, your claims under the Americans With Disabilities Act might be part of the negotiations. As in any workers’ compensation case, timing and leverage are all important. Knowing when to push for settlement and knowing how to use the circumstances of termination for the benefit of our clients are part of what workers’ compensation lawyers like me do on a day to day basis. [tags] employee terminated after suffering on-the-job injury, workers compensation settlements [/tags]
Filed under Georgia Workers' Compensation, Maximizing your settlement, Winning Strategies by
