September 17, 2019

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.

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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.

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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.

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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.

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.

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Sell Your Thumb for $30,000 and Other Strange Provisions of Georgia’s Workers’ Compensation Law

value of human thumbWould you be willing to sell your thumb for $30,000.  How about your right eye for $75,000, your big toe for $15,000 or your pinkie finger $12,500?

Sound crazy?  Well, welcome to the world of the Georgia workers’ compensation permanent partial disability payment schedules.

Because you cannot recover anything for pain and suffering in a Georgia work injury case, every type of injury has been boiled down to a number.  The permanent partial disability payment schedules sets out precisely how much you can recover if you incur a loss or loss of use to part of your body.

In the case of an amputated or permanently damaged thumb, for example, the payment schedule says that your thumb is valued at 60 weeks of work.  If your average weekly wage is $500 per week (the current maximum), then you multiply $500 x 60 to get $30,000.  The loss of an eye is equal to 150 weeks, the big toe is worth 30 weeks and your pinkie finger is worth 25 weeks, and so forth.

When you hear workers’ compensation lawyers talk about a PPD rating, we are referring specifically to Code Section 34-9-263 which sets out a value for various impairments. [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…]