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.
[tags] malingering, workers compensation, workers comp, Waddell’s signs, symptom endorsement [/tags]
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.
[tags] medical treatment under workers compensation, Georgia workers compensation, company doctor, medical benefits [/tags]
Filed under Medical benefits by
I work at a job where I am using a computer keyboard all day long. Over the past few months, my right wrist started to hurt and get numb at times. I reported my injury on November 28, 2006 to the Human Resources Manager requesting for a keyboard tray from desk.
The HR Manager told me that it was out of his hands and that I should order a tray through my manager for approval. I asked on several occasions for the tray and my injury started to become more aggravated, so I went to his boss asking him about the status of a computer tray. He told me that the tray was too expensive and I now needed a doctors note in order for me to receive a keyboard tray.
I went to my doctor and told him the same story and he suggested that I file a workmen’s comp claim since it was a work related injury. It was filed the first week of February with the correct injury date of November 28th I am scheduled for surgery this Wednesday February 28th and they are now just informing me that I have to use my PTO to compensate my time off. Now, by law if I use the 21 days from the injury date (which it has been) shouldn’t I receive full compensation?
–Alyce
Jodi Ginsberg responds: Alyce, thanks for your question. The law requires that you file your workers compensation claim within 30 days of the injury. Here it looks like your date of injury was November 28, but you did not file your claim until the first of February. Is your employer acknowledging that you “reported” your injury in November?
For the benefit of anyone reading this blog, employers and insurance companies use these “reporting deficiencies” all the time to deny claims. If you get hurt on the job, you should always try to report the claim in writing and, if possible, file a report of on-the-job injury yourself with the State Board of Workers’ Compensation.
Assuming that your employer recognizes this as a workers comp injury, you ask about the 21 day rule. The 21 days runs not necessarily from date you reported it,but rather, from date of economic disability (when you stopped working). Did you continue working after the November, 2006 “injury date?”
By the way, if your injury did not “happen” on a specific day but was the result of months or years of overuse, then the injury date you choose is called a “fictitious injury date.” In cases involving these types of “overuse” injury, it is even more important for the injured claimant to file his own Form 14 notice on injury with the State Board.
Filed under Carpel Tunnel, Case studies, Georgia Workers' Compensation by
Jodi, I am receiving TTD (temporary total disability) benefits and the authorized doctor told me that he is releasing me to return back to light duty work. Should I report to work immediately?
Jodi Ginsberg responds: No, you should not return to work right away. You should wait until you receive a form in the mail called the WC-240 form. The WC-240 form is completed by the insurance company and describes specifically a light duty job, the date and time that this light duty job will be available.
The WC-240 protects you, the injured worker. If you show up at your job site and your employer really does not have a light duty job that corresponds to the limitations on the WC-240, your refusal to try a job outside those limitations will not damage your case. Further, if you try the light duty job for up to 14 days and cannot perform it, your TTD benefits will resume immediately.
If you return to work without a WC-240, you risk the situation where the light duty job really is not light duty. If you cannot perform it and/or if your employer terminates you, your TTD will be cut off and, of course, your job is over as well. You then have to file for a hearing and wait two to three months to ask a judge to reinstate your benefits.
If you return to work with the WC-240, the burden falls on the employer/insurer to try to stop your benefits. If you return without this form, the burden may fall on you to try to get your benefits restarted. This is a big distinction and can determine whether you have money coming in every week while you recover. Further, if you have money coming in you will be less likely to be pressured into a cheap settlement.
Sometimes, an injured employee may be pressured to return to work immediately by his boss or even by a well meaning spouse or co-worker. Do not be manipulated in this manner. If you have been receiving benefits and your doctor tells you that he will be issuing a light duty release, wait for your WC-240.
As an aside, part of my job as a claimant’s lawyer is to review the WC-240 to make sure that the light duty description is consistent with the medical records, and to object if it is not. Further, if it turns out that my client cannot perform the light duty work, I will assert my client’s right to a resumption of TTD benefits.
[tags] WC-240, light duty return to work, georgia workers compensation claim, TTD benefits, temporary total disability [/tags]
Filed under Georgia Workers' Compensation, Income benefits, Returning to work 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:
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what is the insurance company’s exposure for future temporary total disability – what do the actuarial tables say about your projected lifespan?
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how much future medical care will you require?
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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
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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]
As I was loading a 400lb. piece of freight on an aircraft, my (L) knee twisted. I was sent to a clinic and evaluated that I might need a knee replacement. I have a history of several knee surgeries, my job function is loading and unloading airplanes for 30 years. My question is can I obtain my own Dr. in the state of Ga., under the workmans compensation laws………Thanks
–Andrew
Jodi Ginsberg responds: Andrew, thanks for your interesting question. Here is how I would analyze your situation. First, I would want to know if your potential need for a knee replacement is the result of your most recent injury or is it a combination of this injury and your past injuries/surgeries?
Your employer and its insurer may try to argue that your current problem is the result of past injuries as opposed to this incident, and they may try to deny coverage.
Even if your employer tries to deny coverage based on your old knee problems, your case may be winnable if a treating doctor will go on record that your most recent injury aggrevated your pre-existing condition, and if you did not misrepresent your knee problems at the time you were hired.
If your employer has accepted responsibility for covering your knee problem, then the next step would be to get you to a specialist. Under Georgia’s workers’ compensation law, an authorized treating doctor can refer you to a specialist and, generally, the insurer would be responsible for paying the specialist to treat you. If your employer has a valid "posted panel of physicians" there may be a specialist there that you could choose.
If the employer is denying coverage, you would need to request a hearing on the issue of whether your injury is compensable.
As you can see, the answer to your question depends on a number of factors. I do not think you can or should assume that your employer or its workers’ compensation carrier will act in your best interest.
Feel free to call me at 770-351-0801 if you wish to discuss further.
[tags] knee injury and georgia workers compensation, arising out of and in the course of employment, pre-existing condition and workers compensation [/tags]
I was injured in a car accident in Dec. 2004 while on the job. Workers comp accepted responsibility and paid my medical and PT expenses. Extensive injuries included broken femur, broken (upper) arm, fractured liver (which required surgery for continued bleeding), broken ribs, punctured lung, etc. Spent 24 days in ICU. After several months recovery at home, Dr. declared me at 7% disability, and worker’s comp paid several months worth of benefits based on that rating. Now it is 2 years later and while I am able to work, I still have little strength in my arm, and I walk with a limp (and occasionally my leg gives way and I nearly fall). Some days are pretty painful, although I manage to hold down a full-time job. One year ago, they asked if I wanted to settle (not naming a figure) and I declined. Nothing else has been mentioned. Can you give me a vague figure for settlement for these type injuries and also will my time run out for settlement?
Jodi Ginsberg replies: I look at a number of factors when creating a demand for settlement. There are two "big picture" concepts that apply:
1) the best time to settle is when there is maximum uncertainty in your case. Perhaps you are facing surgery, which would mean unknown medical costs and unknown lost wage benefits payable. Perhaps your doctor is proposing conservative treatment in the form of several months of physical therapy after which possible surgery. As your lawyer, I can make the argument that the insurance company’s potential financial exposure might be XYZ dollars. If your doctor has released you back to work or if your doctor has already performed surgery and you are participaing in an uneventful rehabilitation, there is less uncertainty and less reason for the insurance company to value the case at a high number.
2) insurance companies look at their potential financial exposure when deciding how much to offer you in settlement. They don’t care who you are or what you did. They are only concerned about money. If we can convince them that they may be on the hook for hundreds of thousands of dollars, they will offer substantially more than they would if they calculate their exposure at a few thousand dollars.
Here, my biggest concern has to do with the age of your case. First, you may have a statute of limitations problem. Second, you would have to link your current problems back to an accident that happened two years ago, despite your return to work. The insurance company will argue that any current problems may have to do with your post-December, 2004 work (or perhaps non-work) activity.
Returning to work, as you may have guessed, can create issues with settling a case.
They have already paid you PPD (permanent partial disability) so you would need another doctor to give you a higher PPD rating that what you already have.
I think that your case has some settlement value, but perhaps not as much as it would have had in 2005. If you want to call me to discuss, please feel free to do so.
[tags] workers compensation settlement, ppd rating, ttd benefits, georgia worker compensation [/tags]
Filed under Georgia Workers' Compensation, Maximizing your settlement, Settlements by
