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

• 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.

Any business, corporation, or individual that provides products or services to a business entity and is specified contractually or by verbal agreement is referred to as an “independent contractor.” According to the IRS tax codes, they are not defined or recognized as an employee of that business or corporation. They typically work as they are required to and are usually subject to what is called the Law of Agency.

Additionally, independent contractors (hereinafter referred to as IC’s) are responsible for paying their own federal and state taxes; this is not the responsibility of the business, corporation, or individual who has contractually procured the IC’s products or services. Compensation is normally made on a freelance basis and the IC may be working through a limited company which they own themselves or via what is called an “umbrella company,” a company that acts as the agent for the IC.

Does worker’s comp cover the independent contractor?

Under the worker’s compensation laws of the state of Georgia, independent contractors are not covered for any injury sustained while performing their work. However, the definition of an independent contractor under state statutes has very specific guidelines in order to determine if the individual is an employee or an IC. Employers do not always use this definition correctly or properly. Additionally, the IRS’ guidelines regarding IC’s are not followed by worker’s compensation law.

For these reasons, this is a very problematic area. However, it is extremely ironic that an individual who has opted for being an independent contractor and who engage in dangerous or high risk occupations are not covered by Worker’s Compensation Insurance based on their independence or freedom from an employer. But the fact that employers would love to classify employees as independent contractor is what leads some to cheat and do exactly that so they are not responsible for worker’s comp benefits.

The bottom line is that if a business owner or corporate entity has 3 or more individuals working for them and they require a method, manner, time, and the type of work that the individuals are expected perform, they cannot classify the individual as an IC. Any business owner who employs 3 or more individuals is required to carry Worker’s Compensation Insurance. It is not surprising then that some employers try to “cheat the system” in order to avoid purchasing this type of coverage.

If you would like more information regarding the independent contractor/worker’s compensation issue, please feel free to contact us at our website. We will be happy to answer any questions you may have and provide you with additional information.

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!

In this case, my client hurt his back badly about a year previously when he was lifting HVAC equipment.  For several months, the insurance company fought us in our attempt to get proper medical treatment but eventually I was able to get him to a good doctor who scheduled him for surgery to repair a large herniated disc in his lumbar spine.

Post surgery, my client developed complications when fluid began to build up in the spinal canal.  The surgeon prescribed a strong medication to help drain the fluid and prevent an infection.  Unfortunately this strong medication resulted in migraine headaches.

Although the migraine headaches were new, the law in Georgia is clear that medical treatment and medications necessary to treat a complication from a compensable injury is also compensable and must be paid for by the insurance company.  And, in fact, the insurance adjustor originally assigned this case, authorized my client's pharmacy to dispense his migraine medication

Several weeks into the treatment regimen, a new adjustor was assigned to this claim.  The new adjustor decided that the migraine headaches were not related to the work injury and she canceled the pharmacy authorization.  Suddenly, my client was left without medication to treat his frequent and painful migraine headaches.

As you might imagine, this development left my client in a great deal of pain.  I immediately got on the phone with the adjustor but she would not change her position.  I then wrote the treating doctor to request a statement from him that "connected the dots" and related the migraine headaches to the original work injury.   I also got on the phone to the defense attorney representing the employer/insurer to demand that my client's prescription be approved.  It took about 5 phone calls until I finally got the defense attorney to call me back – he acknowledged that our position was correct and he was able to convince the adjustor to start the medication authorization again.

This type of arbitrary action by workers' comp insurance adjustors is all too common.  Adjustors come and go and a reasonable, knowledgeable insurance claims person can be replaced by someone new who is inexperienced, stubborn or even vindictive.  As a claimant's lawyer, I make every effort to stay on top of problems like the one my client experienced and to take whatever steps are necessary to solve these problems.

It can be a blurry line between employee and contractor status, but it is important to know which you fall into. These are some tips for determining your status to make sure you receive the benefits you deserve and to prevent yourself from being taken advantage of by companies engaging in unlawful practices.

Companies Worked For – A key indicator of independent contractor status is when the worker does the same work for multiple companies.

Expense Reimbursement – Independent contractors are more likely to have expenses that are not reimbursed. Employees are typically reimbursed for business-related expenses.

Workers’ Investment – Independent contractors most often have a significant investment in the services they use, most significantly an office or work space, and are not provided tools, equipment, or supplies by employers.

Pay Periods – Independent contractors are typically paid by the job, while employees are paid by the hour, week, or month.

Pay Rate – Independent contractors make a profit or loss on the job, while employees receive paychecks regardless of whether the company makes money.

Permanency – If a worker is hired with the expectation that the job will be permanent, or until further notice, they are generally an employee.

Benefits – Independent contractors are typically not provided benefits, while employees receive benefits such as insurance, pension plans, vacations, or sick days.

Have you been injured on the job and are not sure what category of worker you fall into? Feel free to use the Free Case Evaluation form on this website to discuss your particular circumstances with an experienced workers’ comp attorney.

Case in point.  This week I received the following email from a young woman who works at a factory in north Georgia:

Where I work I have been told that carpel tunnel is not recognized as a workman's comp injury if I wasn't having problems with numbness before.  Is this correct?

The short answer is "no, this is not correct."  Repetitive motion injury (often resulting in a diagnosis of carpel tunnel syndrome) is a very common work injury, especially for factory workers performing manual labor with their hands.

Any employer who tells an employee that "carpel tunnel is not recognized as a workers' comp. injury" is either very misinformed or downright dishonest.

The point here – if you are injured on the job, you should not rely on your supervisor or the HR person at your job to advise you regarding your rights.  The employer (and its insurer) have a decided interest in avoiding claims.  And they know that if delay reporting an injury or if you do not report an injury accurately to your doctor they stand a better chance at minimizing your settlement or even convincing a judge that you did not really get hurt at work.

If you are injured on the job and you think that you may have a claim, call me or another experienced workers' compensation lawyer for an opinion.

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.

He wanted to know if he should consider bankruptcy.  As you may know, my husband, Jonathan Ginsberg, has been a consumer bankruptcy lawyer for many years and I asked him to speak with my client.   Here is what Jonathan has to say about dealing with these debt issues:

The Georgia Workers' Compensation law specifically provides that workers' compensation benefits are exempt from the claims of creditors.  This means that no judgment creditor can garnish your benefits, or levy on any funds in your bank account.   However, it is always easier to prevent a garnishment than to try and get your money back.  First, you should not co-mingle your workers' compensation funds with your spouse's money or any other money you may have.  You don't want to give a judgment creditor an angle to grab money that is not directly tied to your workers' compensation benefits.

Secondly, your workers' compensation money may not be protected from claims related to child support or taxes.  In my mind there is some inconsistency within Georgia law about this and federal law would trump state law on one or both of these issues.  If you have child support, alimony or tax claims outstanding, you should let your lawyer know.

Here is the text of a letter that you may want to send to creditors:

Dear Sir or Madame:

You have recently contacted me about a debt you allege I owe.  Please be advised that I am currently not working because of an on-the-job injury.  I am currently disabled and receiving workers compensation benefits.

Georgia law (O.C.G.A. Section 34-9-84) specifically provides that Georgia workers’ compensation benefits are “exempt from all claims of creditors.”  I deposit my weekly wage benefit payments into my checking account and I do not co-mingle these funds with any other money.    This protection will extend to any fund I might receive should I settle my workers’ compensation case.

My attorney advises me that any effort by creditors to levy or garnish workers’ compensation funds would be actionable.  I would therefore respectfully advise you not to take any action with regard to this debt.

To the extent that any Fair Debt Collection Practices Act rights are involved I hereby assert those rights as well.

My physicians have advised me to avoid stress and I therefore request that you or your agents refrain from contacting me by telephone.

Thank you for your attention to this matter.

I would recommend that you send this letter to registered mail, return receipt requested to all creditors and creditor lawyers that are asserting claims against you.

You have been injured on the job and are now receiving Georgia workers' compensation benefits.  Who decides which doctor you can see?  What if you are not happy with the company doctor?  Are there any circumstances when you can choose a doctor of your choice?

In this video, attorney Jodi Ginsberg speaks about the rights of injured workers to receive quality medical care as well as options to change treating physicians in the event that company provided medical care is sub-standard.

I hope that this blog, along with the Ginsberg Law workers' compensation web site, will be helpful resources for you as you educate yourself about Georgia workers' comp. law.  Another very useful site is the web site published by the State Board itself.   While some of the material on the State Board's site is geared towards lawyers, insurance companies and employers, there is a great deal of useful information there for injured workers.  For example the State Board web site has a very helpful FAQ section written for the benefit of injured workers.   Another section is written for employers – as injured worker, however, you can learn from this as well.  Another area of the State Board web site that you may want to review is the section that includes the various official forms that employers, insurers and claimant's lawyers must use.

One of the main themes of the State Board site relates to how workers' compensation is different than personal injury law.   If you understand, for example, that pain and suffering are not part of a workers' compensation claim, or that an insurance company does not have to settle, you can make better choices in your own case.  If you are an injured worker, you obviously have concerns that transcend the organizational structure of the State Board of Workers' Compensation.  However, you may find that an understanding of how the Board works can help you maximize your recovery should you have an injury claim.