February 24, 2020

Injured Workers Suffer as Workers Compensation Laws Get More Restrictive

workers comp laws for saleFrequently on this blog I post stories about the difficulties my clients experience trying to get insurance companies to do what they are supposed to do under the law.

Most often the problems I highlight involve an insurance company’s refusal to authorize (pay for) necessary treatment, and some of the tactics I use to force the issue. As you may know, delay in starting needed treatment increases the chances of complications and makes full recovery less likely. If the purpose of the workers’ compensation system is to get injured workers back to work, why do insurance companies intentionally delay treatment and thus lower the chances of a rapid return to work at full capacity.

There are times when an insurance adjuster takes such a ridiculous position – contrary to the law and to human decency – that I have to request a hearing so the case ends up with defense counsel. I’ll ask opposing counsel to explain the adjuster’s behavior and the other lawyer will have no answer. My guess is that the insurance companies figure they can run over unrepresented claimants or newbie lawyers so they act with total disregard of the law. Needless to say that nonsense does not work at Ginsberg Law Offices.

You would probably not be surprised to conclude that a workers’ compensation insurance company’s actions are driven primarily by money. They have obviously concluded that they will make more money fighting and delaying your legitimate claim with the hope of closing your case with a lowball settlement than they will paying for medical care and getting you back to work. [Read more…]

Unrepresented Claimant with Rotator Cuff Injury Denied Necessary Rehab

post surgery rehabI want to talk with you today about rotator cuff injuries and the importance of both proper medical care and appropriate rehabilitation and followup.

In many respects the right kind of rehabilitation and follow-up medical care can make the difference between a return to full function and long term (and sometimes permanent) restriction of movement, stiffness and pain.

Recently I received a call from a prospective client who tore her right rotator cuff and underwent surgery, but was seeking legal advice because she sensed, correctly, that her workers’ comp doctor was not providing appropriate follow-up 1.

The prospective client told me that she hurt herself attempting to move a heavy box over her head and that shortly thereafter her right shoulder became painful, swollen and weak.  The industrial clinic doctor was unable to do much (other than waste a couple of weeks) and she was referred to a local orthopedist for consultation. [Read more…]

  1. I have changed the details of this case to preserve confidentiality, but the underlying principles are real.

Do Not Expect Respect from the Insurance Company

insurance company bad faithI tend to write a lot about bad behavior by insurance companies and why you should not try to represent yourself in your workers’ compensation case.  Obviously I hope that you will consider Ginsberg Law Offices for your case but however you proceed, I hope that you understand clearly that you cannot and should not assume that the insurance company will act in good faith.

Just the other day, I received a letter in the mail in one of my cases stating that the insurance company had scheduled my client for an “independent” medical examination with a physician in Atlanta.  The problem is that my client lives over 150 miles away.

I got on the phone with opposing counsel and demanded to know why his client had scheduled this exam when there were numerous specialists located within 5 miles, 10 miles, 25 miles, etc. from where my client lives.  Obviously what’s going on here is that the insurance company knows that the Atlanta doctor will give them a report they want and they have no interest in finding out what is really going on with my client.

Opposing counsel said that his hands were tied so I requested a conference call with the judge.  During this call I restated my objection to this farce and accused the insurance company of acting in bad faith.  The judge felt that the insurance company had the right to choose a physician of its choice for the IME but he did order the insurance company to provide round trip transportation for my client. [Read more…]

Mediation Often an Effective Means to Settle Your Case

My clients are often surprised to learn that State Board judges do not render lump sum awards or verdicts about cases.  Unlike a personal injury negligence case where a judge or jury serves as a finder of fact and determines whether you won or lost your case, judges in workers’ compensation cases decide disputed issues.  For example, we may have a dispute with the insurance company about which doctor should serve as the treating physician, or whether the insurance company was within its rights to cut off your benefit.  Other disputes involve such things as penalties for late TTD checks or who should have to pay for an MRI.

Workers comp. judges do not decide how much a case is worth or render a final dollar judgment.

Settlement in your case is totally voluntary – neither you nor the insurance company has to settle.  In theory you can collect TTD (weekly wage benefits) for up to 400 weeks, and, in theory, the insurance company will remain on the hook for your medical costs forever. [Read more…]

What is an Idiopathic Injury and Should You be Concerned if Your Injury is so Classified

heart attack on the jobGeorgia workers’ compensation law says that your work injury will trigger workers’ comp. benefits if it arose out of and in the course of your employment. Your injury must meet both of these conditions to be compensable as a workers compensation injury.

  • “In the course of employment” generally means that your injury occurred while you were on the clock, and not on break or engaged in horseplay.
  • “Arising out of” your employment means that there must be some connection between your work activity and your injury.  If, for example, you performing your regular job duties and you suddenly have a heart attack or a stroke, your employer will not be required to pay for your medical care or provide your temporary total disability benefits because it is assumed that your underlying heart condition or vascular problem was not related to your job duties. You can recover benefits if you can prove that your heart attack, stroke or other long standing medical problem was caused by conditions at work. For example, if you are exposed to a chemical at work that triggered a heart attack, or a fall or some other injury, your injuries would be compensable.

Generally, however you can expect pushback from your employer and their insurance company if you experience an injury that most likely has underlying causes other than your work activity.  A medical problem that has minimal relation to your performance of job duties, which arose from an unknown cause is called an idiopathic injury.

Idiopathic injuries that do not arise out of your employment are not compensable under Georgia workers compensation law, so this issue often results in litigation. Several idiopathic injury cases have reached appellate courts in Georgia, although the law in this area is still evolving. These appeals cases are helpful to better understand where workers’ compensation judges are supposed to draw the lines between a non-compensable idiopathic injury and a compensable work injury.

in the case of Harris v. Peach County, a custodian bent over to pick a pill off the floor and dislocated her knee because of her excessive body weight. The Georgia Court of Appeals held that Ms. Harris’ injury was compensable because she was engaged in an activity related to her job duties. While Ms. Harris’ body weight was no doubt the main factor causing her injury, the appeals court found her injury compensable because she was performing a job duty when her knee buckled.

  • Presumably Ms. Harris’s injury would not have been considered a work injury arising out of employment if her knee had buckled while she was walking down a hallway and not engaged in any specific activity.

In the case of Davis v. Houston General Insurance Company, however, the Georgia Court of Appeals reached a different conclusion. In the Davis case, Ms. Davis, a nurses aide, injured her back while she was putting on her coat, getting ready to leave work for the day. The Court noted that the risk of back injury was not in any way related to the claimant’s job duties. Putting on a coat is not a work function and thus the relationship to the Ms. Davis’ job was too tenuous.

  • Would the court have reached a different conclusion if Ms. Davis was putting on a “HazMat” suit to clean up dangerous chemicals? I would argue that putting on a HazMat suit is causally related to one’s employment whereas putting on an overcoat to go home is not. I hope you can see that the question of whether a work injury is causally related to a particular job requires a case by case analysis and can involve some very careful line drawing.

What Should You do if the Insurance Company Suggests that Your Claim Should be Denied as an Idiopathic Injury?

If you sense that the insurance company intends to deny your claim on the grounds that your injury has nothing to do with your job duties, you should avoid speaking directly to the insurance adjuster or anyone involved in the handling of your claim. The words you use in describing what happened and how you felt at the time of your accident can be used against you, thus, I would recommend that you speak to a lawyer like me as early in your case as possible.

When you are put on the spot to “explain what happened” you may say something that sounds normal in conversation but could be used against you in your workers’ compensation claim. If you have any questions about idiopathic injuries or any other Georgia workers compensation issue, please call me at 770-351-0801 or email me by clicking on the link.

Returning to Work on Light Duty – Proceed with Caution

return to work under wc-240aI have previously written about the importance of never returning to light duty work without a WC-240a form completed by your doctor after being out and receiving temporary total disability benefits.  The WC-240 and WC-240a will set out specific limitations for the type of activities you can perform in your light duty.

Board Form WC-240 contains a “Notice to Employee of Offer of Suitable Employment” containing the a job title, rate of pay, hours of work and date light duty work is to start.  Form WC-240 is filled out by your employer/insurer. A WC-240a should be attached to the WC-240.

Board Form WC-240a must be completed by your authorized treating physician.  It contains a detailed checklist setting out specific activity limitations for your light duty return to work.

If you return to work with a WC-240 and WC-240a and within 15 days, you find that the offered job does not fit within your limitations and you cannot perform the job duties, you can leave the workplace and your TTD benefits will resume automatically (although your employer can subsequently ask for a hearing to terminate your benefits).

If you return to work without a WC-240 description of activity limitations, and cannot perform the job, you also have 15 days to determine whether you can perform your job and thus get an automatic reinstatement of your TTD benefits.  However, my experience has been that insurance adjusters are much more likely to challenge your decision to leave a light duty job by filing paperwork to cut off benefits if there is no WC-240 description of a light duty job for you.

If you wait more than 15 days to decide that you cannot perform the light duty job, your benefits will not automatically restart and you will have to wait weeks or months with no income coming in to get a hearing date to bring the matter before a judge. [Read more…]

Double Standards Alive & Well at Insurance Companies

I am currently representing a client with a significant back injury who is currently treating with a posted panel doctor.   The doctor in this case is well known to me and other claimant’s lawyers as a physician who very rarely keeps a patient on no work status very long and who is reluctant to order diagnostic tests or to refer a patient out to a specialist.

This particular doctor apparently gets all of his business from insurance companies and his medical decisions are a byproduct of his source of fees.

I know about this doctor’s bias and the insurance adjuster surely knows this as well, yet I find myself playing the same game once again.  The panel doctor will release my client to full or light duty work.  The insurance adjuster will issue a notice of termination of benefits.   I will file for a hearing and/or a change in treating physician.   Eventually, the adjustor or defense attorney and I will agree on a legitimate doctor who will most likely find that  my client needs surgery.  Benefits will be restored and my client will get the treatment he needs.

Even though the script has already been written, insurance adjusters keep trying to close out cases involving seriously injured claimants.

I suppose that sometimes they get away with this nonsense – either because the claimant is unrepresented or because the claimant has an inexperienced lawyer.

Having been on the other side, I know how this game is played and it is not going to happen on my watch.   Insurance adjusters are quick to cut off benefits but when a physician calls for more expansive treatment, an MRI, or a referral to a specialist, the process usually grinds to a crawl.

I talk about this a lot with clients and colleagues but it bears repeating – you are going to get walked on if you let the insurance company dictate the pace and progress of events.  Timing is everything in a workers’ compensation case and you have to demand action or nothing  happens.

Last week I was recording some videos for my web site and I got to thinking about the insurance company double standard – here is what I think: