June 19, 2019

What is a Malingerer?

malingeringCertain terms that can be found in medical reports carry significant meaning.  If you see the term “malingerer” applied to you, this could be a significant problem for your workers’ compensation claim.

In a work injury claim setting a malingerer may be defined as one who fabricates or exaggerates the symptoms of physical or mental disorders for the purpose of avoiding work, obtaining drugs, remaining on weekly benefits, or increasing settlement value 1.  In other words, a malingerer is someone who claims that he/she cannot return to work despite the absence of medical evidence of a continuing disability.

Unfortunately in the adversarial world of workers’ compensation within the state of Georgia, accusations of malingering are tossed about with little to back up these claims.  However, if the judge in your case starts to accept this accusation it can leave you exposed to unfavorable rulings regarding termination of benefits, changes in treating physicians and disability ratings. [Read more…]

  1. Wikipedia defines malingering as fabricating or exaggerating the symptoms of mental or physical disorders for a variety of “secondary gain” motives

2013 Changes to Georgia’s Workers’ Comp. Laws

Georgia state legislatureEvery year the Georgia legislature considers a variety of proposed laws which may impact workers’ compensation.  This year, several bills passed the Georgia House and Senate and were signed by Governor Deal:

TTD maximum increases to $525 per week.  If you were injured on July 1, 2013 or after, your maximum temporary total disability payment amount increases from $500 per week to $525 per week.  The formula for calculating TTD benefits remains the same – you are entitled to 2/3 of your average weekly wage with a maximum benefit payment which is now $525 per week.

Mileage payments must be made faster.  When we submit documentation to recover mileage reimbursement (for travel to and from the doctor, a deposition or other approved reason), the insurance company must reimburse you within 15 days of submission date.  Previously they could wait up to 30 days to send the reimbursement.  If the mileage check is late, then you will be owed a penalty.

WC-240 return to work procedure changed.  If you attempt to return to work under a WC-240 or not, you must attempt to work for at least 8 hours or one shift for that attempt to be considered reasonable 1.  I continue to encourage my clients to make good faith work attempts.  Under the law if you cannot work for more than 15 days under the work attempt your TTD benefits must be reinstated.

Medical care now limited to 400 weeks.  As of July 1, 2013 injuries, the insurance company is obligated to pay for medical care up to 400 weeks (which is more than 7 years). Only if your case is deemed catastrophic will the 400 week medical benefit cap not apply 2.

  1. I strongly suggest that you not return to work without a WC-240 form.  The WC-240 is completed by your doctor and sets out your work activity limitations.  Read more about the WC-240 procedure here
  2. I have long argued that timing is one of the most important factors in maximizing your settlement.  This change – limiting the insurance company’s obligation to pay for medical treatment makes it even more crucial that we understand and calculate the insurance company’s possible exposure properly.  I discuss this timing issue more in this video

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…]

Doctor Deposition Testimony – Very Powerful Evidence to Help You Win

depositionsOne of the areas where I can greatly enhance the value of your case has to do with depositions I take of the doctors who treat you for a work injury.

If you have read through my web sites and viewed my video on this topic, you know how much importance I place on pushing the insurance company to provide quality medical care.  I am especially concerned about treatment provided by posted panel doctors because physicians who get most of their business from insurance companies may bring financial motivations into their treatment plans for you.

What often happens, therefore, is that many cases contain conflicting medical reports.  The posted panel doctor may write that your back pain arises from a muscle strain and that your MRI report was inconclusive.  A report from your claimant’s IME doc may identify a disc herniation and need for an (expensive) surgical consult.

Workers’ compensation judges, therefore are left with the task of trying to figure out from medical records and attorney produced forms what medical treatment is appropriate or just how severe an injury you have suffered.

[Read more…]

Bogus Independent Medical Exam Requested by Insurance Company Puts Benefits at Risk

bad faith workers compensationI received this question from one of my blog readers.  The situation this person describes is, unfortunately, quite common:

I was injured at work over 7 months ago. I went to iworks and then went to my doc, Both docs have me on restrictions and 2 months ago the company had me go see another doc of there choice , with no records or anything he seen me for maybe 15 mins and sent a report saying i can go back to work.. So now my work informs me that even though Iworks and my back specialist says restrictions that I have to return to work back on the floor and ignore the restrictions. Iworks even says no patient transfers but my work says they don't care about Iworks i have to go back to my CNA job. So now what do i do?

Here are my thoughts:  I am assuming by what you have written that you do not have a lawyer.  It may be that the insurance company accepted your claim and paid temporary total disabiltiy benefits initially, which might have made you think that you did not need legal help.  Setting aside the question of whether anyone with a serious injury should proceed without counsel, I think that the insurance company's decision to send you to one of their doctors should have been a red flag.

Insurance companies send you to so-called "independent medical examinations" so they can get evidence which they can use to cut  you off.   Obviously, the IME doctor's 15 minute exam without review of other records was not intended to do anything but cut you off, and while not every IME is this bogus, many are.

An experienced lawyer would most likely have recognized the IME doctor as a bought and paid for shill for the insurance company and would have argued for a more fair medical provider.  At the same time, your lawyer would seek documentation from your treating physicians that their restrictions are valid.  As soon as the return to work notice was issued your lawyer would have requested a hearing and, if you are in Georgia, could have used the claimant's IME to gather additional evidence to support your claim of disability.

[Read more…]

Numbness or Tingling in Your Arms or Legs? You May have a Neurological Injury

sciaticaIf there is a neurological component to your neck or back injury, time becomes your worst enemy, says neurosurgeon Thomas Morrison of Peachtree Neurosurgery, P.C. in an article published on the georgia1st.com web site.

Neurosurgeons like Dr. Morrison recognize nerve involvement in an injury when a patient experiences numbness, tingling, burning or muscle weakness.  When the nerve becomes inflamed, pain may radiate down from the nerve root into your extremities.   

  • Neurological injury to the cervical (neck area) spine, may cause radiating pain into the shoulders and arms
  • Neurological injury to the lumbar spine may cause radiating pain into the buttocks, thighs, legs or even the feet       
  • Numbness in the genital region can be an indicator of a very serious neurological condition that can result in bladder or urinary incontinence or sexual dysfunction

Nerve involvement in a spinal injury must be treated quickly because nerves do not regenerate like muscles, and the pain can be intense.  If you have ever experienced sciatica (nerve pain running down you legs), you know how debilitating nerve pain can be.  In the workers’ compensation world, insurance companies are notorious for turning a treatable neurological injury into a permanent, lifelong impairment by delaying treatment.

In my view, delaying treatment for a neurological injury is counterproductive because it will result in a longer recovery and decreases the odds that a injured claimant will return to work.  However, many insurance adjusters open their claims files with the assumption that the injured worker is faking or malingering, so delayed treatment is quite common.

[Read more…]

Body Parts and Insurance Companies

authorized treating physician refusal to treatI recently had a long and somewhat heated conversation with an insurance adjuster about body parts.  Specifically, I wanted the adjuster to authorize medical treatment for my client’s neck and back , but the adjuster only wanted to authorize the treating physician to provide care for my client’s back.

As ridiculous as this may sound, this type of negotiation happens all the time in a workers compensation.  Though common sense would tell you that an employee who injures his low back falling from an 8 foot ladder might reasonably be expected to suffer neck injuries as well (such as when his head hits a concrete floor), insurance companies are very careful not to assume anything.

The problem in my case arose from my client’s first conversation with the posted panel doctor.  My client’s low back was in spasm and he was absolutely miserable, and he did not specifically mention any pain in his neck to the treating doctor.

I am thinking that my client had probably incurred a concussion and was not thinking straight in the first place so who knows what he told the company doctor.  By the time I was retained, almost two months had passed and now my client is receiving epidurals for his lower back – although he may need surgery soon – but no treatment at all for his neck.

When my client goes to the workers’ comp. doctor and tries to talk about his neck pain, the doctor tells him that the insurance adjuster has not authorized treatment for the neck so the doctor will not treat the neck.

Imaging a doctor’s appointment where the physician tells you “I’m sorry you’re in pain but I am not allowed to treat that part of your body!” [Read more…]