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
Welcome to the 7th installment of my summer long series on Georgia Workers’ comp case studies. In the following case study, I discuss a recent workers compensation case involving a severe ankle and foot injury.
Severe ankle and foot injury Workers’ Compensation case
This case involved an ankle injury incurred by woman (Mrs. K) who worked in a warehouse environment. While moving a bulky 250-pound steel panel, Mrs. K and her co-workers paused to rest after moving the steel panel only about 10 feet. The panel became extremely unsteady and fell on her Mrs. K’s foot, snapping and breaking the ankle and foot. Mrs. K was immediately rushed to her local hospital’s ER where she would undergo surgery to stabilize and immobilize the fracture.
After her surgery, Mrs. K was referred to a physician from the posted panel of physicians who saw her 3 days after her surgery. Despite the severity of her fracture, the panel physician did not take X-rays to evaluate the union of the bones, nor did he conduct any nerve function tests to evaluate any possible loss of function. Instead he left the cast on and prescribed pain medications.
After just over a week living in intense pain, Mrs. K. found me through my web site and retained me to represent her. After reviewing the medical record, it was obvious to me that Mrs. K needed additional surgery and she needed a surgical consult quickly. I contacted the insurance adjuster and persuaded the adjuster to refer my client to a foot and ankle specialist. The foot and ankle specialist diagnosed the foot fracture as a “displaced” fracture, meaning that another surgery was needed and that plates and screws would have to be used to stabilize the foot. This, of course, means that a third surgery likely would be necessary to fully or partially remove this hardware.
Because of the delay in getting Mrs. K to the appropriate physician, she suffered complications – ecchymosis (skin discoloration) up the leg to her knee and neuropraxia (loss of nerve function) throughout her foot. In my opinion, these complications would not have occurred, or would have been less severe had the 2nd surgery been performed earlier than it was.
Mrs. K is still recovering from surgery. Her job had required her to stand, squat, lift and stand, and she cannot perform the duties of her past job. Rehabilitation is proceeding slowly and I estimate that she will be out of work for at least 6 to 8 months.
Mrs. K has not yet had her second surgery and it is not clear to me how invasive that second surgery will be. I expect that we will make a settlement demand either before or after the second surgery.
In my view, this is a case in which the insurance company’s delay and their reluctance to get Mrs. K to the right doctor quickly on what was clearly a surgical case will dramatically increase the settlement value of this case. More importantly, I am of the opinion that my client’s health was compromised by the insurer’s delay, not to mention the unnecessary suffering she experienced. I further suspect that had she waited 3 or 4 weeks before hiring me, a second surgery would not have been scheduled as the initial panel doctor seemed oblivious to the severity of this injury.
This case illustrates the importance of recognizing that medical treatment under workers’ compensation can be substandard and inadequate. The panel doctor’s motivation and loyalty was not to his patient, but to the insurance company. Ironically, the panel doctor’s failure to act will end up costing the insurance company more money.
Filed under Case studies, Foot/crush injuries, Medical Care by 
Case Study: Injured worker’s employer illegally discourages him from pursuing workers’ comp benefits
Throughout this summer, I plan on posting several Georgia workers’ compensation case studies. These case studies involve actual cases I have managed in recent years, and they often touch on many issues people may face when going through the workers’ compensation system in Georgia. All names of clients, employers and physicians will be changed so as to protect the privacy of my clients. Today, we will discuss the case of “Mr. B,” an injured worker whose employer tried to pull an illegal move and direct him to pursue an insurance claim with his own insurer rather than pursue workers’ comp benefits.
The Workers’ Compensation case of “Mr. B”
Mr. B was injured on the job when he lifted roughly 100 pounds of rubber materials. He injured his back as a result of the accident, and he also reported pain radiating down into his legs. He was referred to Dr. G for immediate conservative care, and soon after initial treatment, the client was referred by Dr. G to Dr. C for lumbar spine surgery. The goal if surgery was to repair a herniated disc and relieve his continual radiating leg pain. Once Mr. B successfully completed the rehab phase of his treatment, he returned to his place of work roughly 3 months after the surgery was performed.
Unfortunately, Mr. B was only able to work for 2 weeks; his back and leg pain flared up again, preventing him from working. Dr. C placed him on “off-work” status, and the client stayed out of work accordingly. According to medical records, both doctors G and C agreed that his injuries were work related, and both persisted in obtaining authorization from Workers’ Compensation.
However, a problem occurred in this case. The employer discouraged our client from pursuing workers’ comp benefits based on his job accident. Rather, the employer insisted that the employee take the issue to his own insurance carrier and file it as an LTD (Long Term Disability)/STD (Short Term Disability). This is highly illegal, especially since there was clear evidence that our client had been injured on the job. Even early paperwork from the employer indicated that this was a job injury. Therefore, according to Georgia workers’ comp law, out client was clearly entitled to workers’ comp benefits.
When we stepped in, we helped our client realize that he indeed needed to pursue his workers’ comp claim and then started looking at the specifics of his case so that we could prepare a settlement demand. We helped our client settle the case for a fair amount, and he now receives TTD benefits and will be aptly covered for any future medical costs.
The point here is that if your employer tries to discourage you from pursuing workers’ comp benefits and instead suggests that you pursue your own insurance claim, then you should realize that this is illegal and that you should probably speak with an attorney who can help you better understand your claim. A workers’ comp attorney’s job is to make sure you get the benefits you deserve and need, as well as to make sure your employer doesn’t pull any illegal moves.
Stay tuned for additional case studies!
Filed under Back & neck injuries, Case studies by
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.
Filed under Medical benefits, Understanding the Law by
If you are injured on the job and you are a covered worker under the workers’ compensation law, your employer is required to provide you with medical care. However, as you may suspect, what you consider as reasonable and necessary care may not be the same thing as what your employer and its insurer want to provide.
The posted panel of physicians is the starting point for your claim for medical treatment. Under Georgia’s workers compensation law, employers are required to post a list or “panel” of doctors in a reasonably accessible place for employees to see. A valid panel should have at least 6 indpendent medical providers on it and at least one of these doctors should be an orthopedist.
If your employer has a posted panel, you may select a doctor and schedule an appointment, with the cost borne by the ermployer/insurer. Often, your employer will try to direct you to a particular doctor or clinic with whom the employer has an on-going relationship. Under Georgia law, you as the injured worker have the right to select from any of the doctors on the panel. You can do yourself a real favor by avoiding doctors who may not have your best interest at heart – Ginsberg Law’s extensive experience with physicians throughout the State can be a huge benefit to you if you become our client.
If you choose to select a doctor on the panel that is different from the doctor that your supervisor is “suggesting,” you would be wise to ask the doctor’s office to verify that the workers’ compensation insurer has agreed to pay for the appointment. Some employers honestly do not understand that employees have the right to choose a physician, and sometimes employers and insurers will intentionally playing games with the payment of medical providers for unrepresented claimants even if those providers are authorized.
If there is no posted panel of doctors, or if there is a panel that is not accessible, or if you have never been given any explanation of how the panel works, Georgia law can provide you the right to select your own doctor. As you might imagine, employers and their insurers will do everything in their power to retain control of the course of your medical treatment. You may hear things like “that doctor is not authorized,” or “that doctor is not on our panel,” or “that doctor is not in our network.” Be aware that there have been dozens of litigated cases in Georgia relating to the posted panel, and factors that either validate or invalidate the panel. Part of our job as your attorney is to identify whether the posted panel issue is something to pursue or not.
To illustrate the importance of asserting your rights under workers compensation law, I would like to relate to you the story of a recent client of mine who suffered permanent nerve damage in his spine because of delays caused by the insurance company. As any reputable doctor will tell you, time is of the essence if you have a serious injury. If you have a serious injury to your back, neck, arm, knee, foot, head or hand a delay in diagnosis can result in permanent injury and inability to return to work.
Our case involved a situation where a client hired us after enduring almost a year of frustrating delays in medical care. The client had a significant back injury after falling off the back of a truck. He hit the ground and had sharp, shooting pains in his back and radiating down his leg, with numbness in his toes. He was ordered by his employer to see the clinic down the road from his job. For several months, he stayed under the care of this clinic – taking medication and undergoing therapy that did not help, and actually made him worse.
When this injured worker (not yet represented by our firm) asked for a referral to a specialist he was ignored and offered more therapy. The clinic doctors released him to “light duty,” which he tried to do with very limited success. Finally, after many months the clinic doctor ordered an MRI scan, which revealed herniated discs at 2 levels impinging on a nerve in the spine.
Again, the injured worker asked for a referral to a spine specialist and after another full month of delay, he finally got the referral. The specialist confirmed the diagnosis of disc and nerve injury and ultimately the injured worker (now our client) underwent a fusion of his spine. Unfortunately, the surgery did not relieve his pain, because our client had incurred permanent nerve damage due to the delay in care.
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
