Many of my clients are surprised to learn that their husband, wife or significant other can ask for payment for “attendant care” of an injured worker at home. Why? Often my seriously injured clients cannot take care of basic necessities such as:
- bathing
- dressing
- meal preparation
- driving
- cleaning
Given that hospitals often release patients home as soon as possible, I see more and more instances where my clients recover mostly at home, with outpatient visits to rehab.
Under Georgia law (Georgia Code Section 34-9-200(a)), the employer/insurer must provide care that “shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.” In the case of Medical Office Management v. Hardee, the Georgia Court of Appeals held that:
There is no express prohibition in the Workers’ Compensation Act against the recovery by an employee of attendant care services provided by a family member, including a spouse. Nor does the employer show that a family member cannot provide attendant home care under the Board’s rules and regulations…
The employer had argued against this “spousal reimbursement” on the grounds that the spouse was performing tasks he/she would do otherwise. The Georgia Court of Appeals, as you can see, ruled otherwise, and permitted Ms. Hardee’s husband to collect a fee under the State Board fee schedule for attendant services.
What does this mean to you? More on Can my Spouse Get Paid by the Insurance Company for Helping Me Recover at Home from my Injury?
Filed under Medical benefits, Medical Care, Recent developments by 
If you have never been involved in the Georgia workers’ compensation system before, you may be shocked and disappointed to learn that some of the physicians you meet seem to have an agenda other than your health and best interest. The Georgia workers’ compensation statute has created an environment where insurance companies have a financial interest to find and use doctors who downplay the seriousness of your injuries and who intentionally avoid referring you for necessary, but expensive care. The net result of this system can mean delay and unnecessary suffering for you.
I sometimes receive calls from injured workers who are receiving weekly wage benefits as well as medical care, who wonder why they should hire counsel if everything “seems to be working out okay.” Sometimes they sense that something is not quite right but are wary of rocking the boat.
Know Your Doctor’s Reputation
I respond that one of the most valuable services I offer my clients has to do with my knowledge of and opinions about the medical providers that accept workers’ compensation referrals in Georgia. After 20+ years of practice in this area of law, I have seen or know about the biases and quality of work offered by most of these doctors. More on What to do About Substandard Medical Care in Your Workers’ Compensation Case
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
Often, when a worker injures his back on the job, the human resources manager will take down a claim and refer the worker to an industrial clinic for evaluation and treatment. All too often, the industrial clinic or other posted panel doctor will take X-rays, perform some basic neurological tests, then release the worker back to full duty work after a day or two of rest.
I often get these cases four to six weeks later when the injured worker finds himself unable to work because of severe back pain and limited mobility. In some instances the injured worker faces pressure and even harassment from his employer due to his decreased productivity, and when I get the case, the employer/insurer may try to argue that any serious injury to the employee may have happened at home instead of at work.
Recently I represented a very nice young man in a back injury case that clearly demonstrates why X-rays are insufficient to evaluate back pain.
My client is a 31 year old man whose job involved installing and reinstalling fence posts. Starting at 8 AM, my client, using a sledge hammer, loosened fence posts by breaking up their cement foundations, cleaned the post base, then reinstalle the post with fresh cement. Beside using the sledge hammer, my client had to carry heavy buckets of cement and pour them in to holes in the ground.
By 2 PM that day, my client felt a “pop” in his back when he tried to lift the sledge hammer and he felt radiating pain in both legs. He reported the injury to his supervisor, who referred him to an industrial clinic. The clinic doctor took X-rays which described “mild disc space narrowing at L4-5″ but no other impairment. More on Company Doctor Uses X-Rays Instead of MRI and Misses Herniated Disc
Last year I published an article on this blog entitled “How Facebook Can Undermine Your Workers’ Compensation Case.” I pointed out then that the default “privacy” settings on Facebook offered very little privacy at all – your “wall” containing status updates and comments from friends, and your photos are publicly viewable and insurance defense lawyers as well as human resource supervisors will eagerly view your profile to gather evidence. Some of these photos and comments could be taken out of context and could either reduce the settlement value of your case, or could convince a judge that your injury is not as severe as you content.
I suggested last year that you review your Facebook privacy settings and block access to your wall, photos and other personal information to trusted friends only.
Now, it seems that some defense counsel are taking the next step – that is they are using the discovery rules (interrogatories, requests for production of documents) to require you to make your Facebook profile available as part of the investigation of your case. This means that the insurance company’s lawyer can demand that you provide access to your Facebook photos, wall and profile.
I recently reviewed a law review article entitled Social Networking and Workers’ Compensation Law at the Crossroads, by Professor Gregory Duhl and attorney Jaclyn Millner. The authors correctly note that the rules of evidence are more relaxed in an administrative forum like a state workers’ compensation board and that workers’ compensation judges see value in considering the social networking profiles of claimants.
In my Georgia practice I regularly advise my clients that insurance companies will hire private investigators to conduct video surveillance, hoping to videotape a claimant performing a physical activity that is inconsistent with his claimed injury. Now I am adding to that warning a suggestion that my clients refrain from posting on Facebook, MySpace, Twitter and other social networking sites that could produce screen shots or other evidence that could be used to fight a claim.
Filed under Surveillance and investigation 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
