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.
Technorati Tags: medical reimbursement under workers comp, Georgia workers' compensation, SBWC fee schedule
Filed under Georgia Workers' Compensation, Medical benefits 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.
Technorati Tags: termination while on workers compensation, authorized treating physician, georgia state board of workers compensation, light duty work
Filed under Returning to work, Winning Strategies by
The term "malingering" can cause you a great deal of problems if it appears in your medical records. If a judge believes that you are a malingerer, he will likely disregard much of your testimony and he will have an unfavorable attitude about you and your case. Malingering suggests lying and judges rarely award benefits to claimants who appear to be dishonest.
Physicians regularly employ a variety of tests to help identify a malingerer. Although these tests are not always accurate and can be rebutted, you are much better off doing everything in your power to avoid the malingering label in the first place.
Tests that physicians, psychologists and psychiatrists use to spot malingering usually fall into one or more of the following four categories:
- Effort tests – are your scores too low based on what prior tests have shown to be your capability?
- Pain scales – are you identifying pain in parts of your body inconsistent with diagnostic or clinical evidence?
- Symptom Endorsement – are you identifying too many symptoms, or symptoms inconsistent with your diagnosis?
- Waddell's signs – physical actions that should not cause pain but elicit complaints. A classic Waddell test is the "distracted leg raise" where a patient has no complaints of knee pain when seated, but painful on straight leg raise.
As you might imagine, your physician will not necessarily tell you that you are being tested for malingering. Obviously, you should be completely honest and forthright with your physician – you want to create a physician-client relationship based on trust, not on trickery.
If you get the sense that your doctor has a bad attitude about you or is suggesting that you are being less than honest when you are telling the truth, report this situation to your lawyer at once.
Technorati Tags: malingering, workers compensation, workers comp, Waddell's signs, symptom endorsement
Filed under Medical benefits by
As I have written in this blog and on my Georgia workers' compensation web site, the quality and nature of your medical care following your injury will have a lot to do with whether you win your claim and with how much money you can expect at settlement.
I spend a good part of my day looking at my clients' medical records and talking to my clients about the treatment they recieve. It is not at all uncommon for the physician chosen by the employer or its insurance company to release my client back to work with limited or no restrictions, when in reality my client is unable to perform his regular job, a "light duty" job, or any job at all.
Unfortunately, the quality and effectiveness of the medical care that you receive in your workers' compensation case depend in large part upon who has selected the doctor. Many doctors work at medical clinics that get most of their patients from insurance companies for workers' compensation treatment. Insurance company adjustors frequently speak with these doctors and encourage them to release claimants back to work, and to release them with limited or no restrictions.
If I take on a new case and I see that the insurance company has directed my new client to certain doctors, you can be sure that my first course of action will be to call the adjustor and argue for a more neutral physician. The law also gives us the right to demand an "independent" exam in certain circumstances and we also have the right to ask the State Board to designate a change in treating physician.
Sometimes insurance adjustors or defense lawyers will agree to a change in treating physician if I challenge their choice of a doctor who is known to be firmly in the insurance company's camp. In fact, I would say that knowing the reputation of many of the doctors that you are likely to see in a Georgia workers' comp case has helped me become a more effective advocate for my clients.
In a workers' compensation setting, you cannot assume that a doctor recommended to you by your employer or its insurer will have your best interests at heart. Although most of us are conditioned to trust and respect physicians, you have to trust your gut if you find yourself in a workers' compensation setting. And if your gut tells you that your current doctor does not have your best interests at heart, you and your lawyer need to take immediate action to regain control of your medical treatment.
Technorati Tags: medical treatment under workers compensation, Georgia workers compensation, company doctor, medical benefits
Filed under Medical benefits by
