June 19, 2019

How Insurance Companies Try to Cut You Off

aggressive insurance companyYou might think that if your employer is paying weekly benefits and has paid for medical care, you are not likely to have any significant disputes in your work injury case. As the case I am about to discuss shows, however, challenges from the insurance company may be right around the corner.

The case I want to highlight is not one of my cases. The decision in this case is part of the public record in that it is published on the web site of the Georgia State Board of Workers’ Compensation. I bring this case to your attention for several reasons:

  • first, I want you to see how a State Board judge analyzes evidence
  • second, there are certain elements of this case that are not discussed in the decision, but we can assume they are there because the insurance company did not raise the issue and the judge did not mention the issue. We’ll read between the lines to reveal these issues.
  • third, this is a case that shows how insurance companies operate to cut off the benefits of a deserving claimant and to force a below market settlement.

The case I am discussing was decided in 2013 in south Georgia. Because State Board files are confidential, neither the name of the claimant nor the name of the employer is disclosed.  Here is a link to the written decision.

The employee is a female who worked as the manager of a restaurant. In December, 2006 the employee hurt herself and developed neck pain which radiated into both hands and lower back pain that radiated into both legs. The employer accepted the claim and began paying her TTD (weekly wage) benefits. The employer also paid for medical care that include surgery on her cervical spine and surgery on her lumbar spine. [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.

Workers Compensation Coverage Not Optional

who is an employee for workers compensation purposesWhat would you do if your employer asked you to accept a higher salary in exchange for “opting out” of the workers’ compensation system.  What would you say if a prospective employer offered you a job, but insisted that you classify yourself as an independent (1099) contractor so that payroll taxes would not have to be withheld and workers’ compensation insurance would not have to be provided?

Unfortunately for employers like this, workers’ compensation is not an optional coverage.  Under Georgia law, any employer who employs three or more full or part time employees must carry workers’ compensation insurance 1.

Generally, if the person or company you work for controls the time, manner and method of completing a final work product, you are considered an employee for workers’ compensation purposes.  Note that questions of employee vs. independent contractor for cases that involve the jurisdiction of the Georgia State Board of Workers’ Compensation are not the same questions asked by the IRS when considering whether you would be subject to tax withholding (although there is some overlap). [Read more…]

  1. The State Board website offers this example: a regular part-time employee works regularly on a part time basis, such as employees who only work on weekends.

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…]

Asking the Uncomfortable Questions So You are Properly Compensated

Georgia workers compensation lawyerAs an advocate for my clients – employees who have been thrust into the workers’ compensation system – I often find myself asking hard questions to insurance adjusters.  Outside the context of my law practice some of the questions I ask would be considered downright uncomfortable but in my business, I am going to make my opponents uncomfortable if that is what I need to do.

Here’s an example of what I am talking about.  Earlier this year I got a call from one of my work injury clients who told me that his temporary total disability (TTD) checks had stopped coming in the mail.  He had been receiving his TTD checks for several months and the insurance company had not filed any paperwork seeking to terminate benefits.

I immediately called the insurance adjuster who assured me that my client was still in “pay status” in their system and that his checks were being mailed out.  This did not make sense to me because it is highly unlikely that 3 checks would be lost in the mail in consecutive weeks. [Read more…]