June 26, 2019

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.

What Are the Factors Used in Evaluating a Catastrophic Injury Case for Settlement?

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.

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:

  • what is the insurance company’s exposure for future temporary total disability – what do the actuarial tables say about your projected lifespan?

  • how much future medical care will you require?

  • what is the likelihood of needing future surgeries?

  • will home modifications be required because of your injuries

  • will vehicle modifications or a vehicle purchase be required

  • will home health care services be needed?

  • what are the provisions of the Medicare Set Aside

  • 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

  • what future benefits will Social Security provide for post-settlement living costs

  • would a structure settlement be in your best interest?

  • 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]