December 13, 2019

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…]

Can You Sue a Co-Worker for Negligence Following an On-the-Job Injury?

sue co-worker

The Georgia Supreme Court recently issued a very interesting decision about your right to sue a fellow employee for pain and suffering damages when the negligent act occurred at work and you are otherwise covered by workers compensation.

In the case of Smith v. Ellis, decided by the Georgia Supreme Court in September, 2012, both Ellis and Smith were employed by the Knight Group, a company that builds homes. On the morning of February 13, 2009, Ellis came by Smith’s house to borrow a tool for personal use. Smith was working at a new subdivision that was mostly empty land and Ellis decided to tag along because Ellis wanted to shoot his new shotgun in one of the empty fields.

Smith had finished his work for the day and was packing up his tools when Ellis accidently shot him while trying to clear a jam in the shotgun.

Smith thereafter filed a workers’ compensation claim against the Knight Group and a negligence action for damages against Ellis.  The Knight Group denied Smith’s claim and he eventually settled in a no liability stipulation.

A no liability stipulation means that the employer Knight Group denied that Smith was injured in the course of his employment but agreed to pay him a lump sum to close the file.

[Read more…]

Does my Child Support Payment Automatically Adjust Downwards if I am Out Under Workers’ Compensation?

contempt of court for past due child supportUnder Georgia law, you are eligible to receive 2/3 of your average weekly wage with a  maximum of $500 per week.  The average weekly wage calculation is just that – an average.   Your employer calculates your average weekly wage by looking at your payroll for the 13 weeks preceding your accident and arrives at an “average weekly wage.”   My experience has been that this calculation is usually correct, although I do look at the numbers.  There is a slightly different calculation if you have not been employed for 13 weeks.

In any case, your average weekly wage will be less than your actual weekly wage, and because you are out with an injury, you will, presumably, not be able to work at any second job or earn overtime.

If you are paying child support, that payment was most likely calculated based on your actual earnings over some period of time.  Now that you are earning less, what happens? [Read more…]

Case Study: Cervical Injury Made Worse Due to Return to Job

Welcome to the 6th installment of my summer long series on Georgia Workers’ comp case studies. In the following case study, I discuss a case in which a client’s neck injury was made worse by a return to work.

Cervical injuries made worse by returning to the job

Mrs. B is a 20-year employee of a medical practice.  As the office manager, she was involved in all facets of managing the practice, including patient care, insurance submission, and handling other patient paperwork.   Mrs. B is also a licensed practical nurse and she also served as a nurse, frequently making rounds with doctors at the hospital during her work shift. Mrs. B was injured when she felt a “pop” in her neck while assisting two co-workers move office furniture and other office equipment.

After moving the furniture and equipment, Mrs. B started to experience severe pain in the arms and neck.   Additionally, she noticed that she had numbness and pain in her right leg. Despite her pain and numbness, Mrs. B. returned to work the next day and continued working for 9 full months until the pain and discomfort became so intense at she could not function.   Finally, Mrs. B returned to the panel physician who took her out of work and prescribed pain pills and physical therapy.

Perhaps because Mrs. B has a medical background, she sensed that the care she was receiving under workers’ compensation was not sufficient, so she decided to seek counsel, even though she was receiving her weekly income benefits of $500 per week and the employer/insurer was not denying her claim.

When I got involved in this case, I recognized that Mrs. B’s injury was most likely a surgical problem.   After reviewing literally thousands of pages of medical records, I have a fairly good sense of which doctors I like my clients to see for various medical problems and I wanted Mrs. B to see a particular surgeon.   The insurance adjuster would not agree to my preferred doctor so I directed my client to return to her panel physician and request a referral to this particular doctor, which he agreed to do.   Under Georgia law, this referral from an authorized treating physician to another physician must be honored by the insurance carrier and the adjuster reluctantly agreed to authorize my preferred surgeon.  In my view, all parties – my client and the insurance company will benefit from this surgical referral as my preferred surgeon is one of the best specialists in the state for neck surgery.

Mrs. B underwent a multi-level cervical fusion and followup rehabilitation.   Mrs. B had expressed a desire to return to her job but, as I expected, the insurance carrier demanded a resignation as part of any settlement.  Mrs. B recognized that she would not be able to return to her past work and she authorized me to enter in to settlement negotiations.  Our final settlement consisted of cash and 24 months of “open medical” care with the surgeon

How Does Chapter 13 Bankruptcy Affect my Workers’ Compensation Case?

I recently received a question from a gentleman named Charlie who asks:

I filed chapter 13 about 2 years ago, now I got hurt on Job and am receiving W.C.  In the process W.C. is to build a new house for me.  How does chapter 13 come to play?

My husband, Jonathan Ginsberg, has been a bankruptcy lawyer in Atlanta for over 20 years.  I asked him to respond to this question.  Here is his response:

Charlie, first of all, it is important that both your workers’ compensation lawyer and your bankruptcy lawyer know about your accident, the house construction benefit and possible settlement.  Assuming that your weekly wage benefit check is less than your regular salary, you need to make arrangements to keep your Chapter 13 plan current.  Given your injury, your bankruptcy lawyer may be able to amend your plan so that your payment is reduced to account for your reduced income.   Assuming that you foresee a settlement within the next three years, you may be able to make up the difference in a lump sum at settlement.

I have always taken the position that lump sum settlements in workers’ compensation cases may be treated as exempt property purusant to Georgia’s exemption statute.  You should speak to your bankruptcy lawyer about this.  This means that you may be able to keep some or all of your settlement even if your plan is paying only a small percentage back to your unsecured creditors.  In a similar vein, I would argue that the new house should be considered as exempt because it is necessary for your on-going support and maintenance.  Here, too, you need to seek counsel from both your bankruptcy lawyer and your workers’ compensation lawyer.

Finally, you need to advise your workers’ compensation lawyer to file an entry of appearance in bankruptcy court and to file a motion to approve both any settlement and any attorney’s fees claimed.  Bankruptcy judges usually do not have any problem with approving either a settlement or a fee contract, but if you don’t follow the required procedures, there could be delays.

When Should You Expect Your Lawyer to Predict a Settlement Value for Your Case ?

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. 

What are the AMA Guidelines and Why Are They Important to My Case?

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.