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 
When speaking to prospective clients, I often get the questions "what is my case worth?" and "when will my case settle? I cannot think of any situation where I would be able to answer this question truthfully before I would have an opportunity to dig into the file and read all of the medical records. I think that any lawyer who throws numbers and dates at you is not being straight with you because there are so many factors that influence the timing and settlement value of your case.
This about it this way – if you were to drive your car into a repair garage, would you expect the mechanic to diagnose exactly what is wrong with your car before driving it or opening the hood?
When I open a new file, the medical record often is not very complete. Many times no objective testing – MRI, CT scan, even x-rays – have not been done. Objective testing helps doctors and judges evaulate the severity of your injuries. A herniated disk or a broken bone will be much more compelling evidence than a generalized pain syndrome and thus impact settlement value.
I would also want to know who your authorized treating doctors are. Over the years, I have become very familiar with many of the doctors in North Georgia who handle workers compensation claims. If your treating doctor is very conservative and is likely to return you to work with no restrictions, your settlement value will be affected. If I see an angle to argue for a change in treating physician, your case will be more valuable.
In my experience, claimants sometimes don't realize just how seriously they are hurt. If you are having excruitating pain in your back, you might not think abuot that nagging ache in your heel – but down the road, your heel problem and resulting inability to walk could have a more lasting impact on you. A big part of my job is to ask the right questions based on what I would expect to see given a particular injury. Shoulder pain may mask a neck injury. Knee pain may mask foot problems.
Along these lines, as your case develops I will be thinking about whether you will be able to return to your past work, whether your employer is likely to create a job to accommodate you and whether you will be able to return to a job where you can earn close to what you have earned before.
In my view, the timing of our settlement demand i crucial, and the decision about when to talk settlement will be the result of a lot of discussion between you and me. My job as your counsel is to give you the pros and cons of settlement and to help you make a good decision for yourself and your family.
Filed under Settlements by
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
If you are injured on the job, start to miss work, and your employer accepts your Georgia workers' compensation claim, you become eligible for temporary total disability benefit payments. How does TTD work and how much can you receive? In this video, I discuss the basics about TTD benefits.
Filed under Income benefits by
Have you received a light duty return to work? What happens if you try to work but the light duty job is too difficult? What does "light duty" mean anyway? Will your temporary total disability benefits be restarted? Returning to work under a light duty release can be very tricky and you can jeopardize your benefits if you do not handle this process correctly. In this video, I explain how a light duty release is supposed to work and why a WC-240 form is so important.
Filed under Income benefits, Returning to work by
This morning I received a bill in my name for payment due. I called the establishment to inform them that this is a Worknman"s Comp claim and the employee there told me that it has not been filed with Workman's Comp Insurance Company . I relayed this information to our office with a fax number for the paperwork to be sent to the company expecting their money. What else can I do to have this matter resolved? The company I work for is in the process of being closed and I want to make sure this bill is paid.
–Alice
Jodi Ginsberg responds: Alice, thank you for your email. Many times medical offices/hospitals will send bills to patients when it is a workers compensation injury. The law in Georgia prohibits them from collecting money from you when the medical provider is authorized under workers comp. In your case, you indicated that your employer or the workers comp insurer directed you to go to the local hospital. If this is the case then the hospital visit is "authorized" for workers' compensation purposes and the workers' comp. insurer is required to pay the bill.
You should first make sure you put in writing and keep a copy for yourself the fact this is a workers comp case; name and address of employer and workers comp insurance company with your name and date of service etc. Send that info to the hospital with a letter telling them to file it under workers comp. As well, send a copy of the bill to the employer and workers comp ins co and tell them to pay the bill. Keep a copy to the letter you send them as well. This should take care of it. If not, you may need to get an attorney to ask for a hearing.
Also be aware that workers comp pays on a reduced fee schedule in Georgia. This means that the hospital will get paid a set amount for services rendered and this set amount will likely be less than they might bill a non-workers' comp. patient. Any balance remaining over the reduced fee schedule is NOT your responsibility and you should not be sent any bills for the differential owed. If you get billed for the differential, tell the hospital this is workers comp and you are not paying it and do not have to by law.
It is important that you are proactive and assert your rights. If your account is not coded as a workers' comp account, you may find that your credit is damaged even if the charges are eventually paid by the workers' compensation carrier. Don't let this happen – be firm and insist on fair treatment.
Finally, you note your company is going out of business. Do not worry. Despite the fact they are closing, as long as there is workers comp insurance you have a claim with the carrier regardless of whether the employer is or is not open for business.
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Filed under Georgia Workers' Compensation, Medical benefits by
