October 18, 2019

What to do About Substandard Medical Care in Your Workers’ Compensation Case

industrial clinic doctorIf you have never been involved in the Georgia workers’ compensation system before, you may be shocked and disappointed to learn that some of the physicians you meet seem to have an agenda other than your health and best interest. The Georgia workers’ compensation statute has created an environment where insurance companies have a financial interest to find and use doctors who downplay the seriousness of your injuries and who intentionally avoid referring you for necessary, but expensive care.  The net result of this system can mean delay and unnecessary suffering for you.

I sometimes receive calls from injured workers who are receiving weekly wage benefits as well as medical care, who wonder why they should hire counsel if everything “seems to be working out okay.”  Sometimes they sense that something is not quite right but are wary of rocking the boat.

Know Your Doctor’s Reputation

I respond that one of the most valuable services I offer my clients has to do with my knowledge of and opinions about the medical providers that accept workers’ compensation referrals in Georgia.  After 20+ years of practice in this area of law, I have seen or know about the biases and quality of work offered by most of these doctors. [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

What is a “Claimant’s IME” and How Can I Take Advantage of this Powerful Benefit?

I often explain to my clients that a major struggle in any workers’ compensation case relates to medical care.  Georgia law gives employers the first opportunity to decide where an injured worker must go for treatment but this control is not complete:

  • if your employer does not provide a valid “posted panel” of physicians you may be able to seek care with any physician and your employer and its insurer must pay for this care
  • you can switch between one posted panel physician to another without prior permission
  • you can request  a change in authorized treating physician
  • you can request a claimant’s IME

The claimant’s IME is a very interested feature of Georgia law.  First enacted in 1990, Section 34-9-201(e) provides that an injured worker can demand an independent medical exam with a physician of his choice, paid for by the workers’ comp. insurance carrier.  In my practice I use this “claimant’s IME” frequently to get a second opinion about questionable existing care or as evidence to support a request for permanent change in authorized treating physician.

Of course your right to a claimant’s IME under Georgia law is not absolute – I recently wrote an article about this topic on one of my web sites.   Take a look if you are not happy with the quality of medical care you are receiving – and let me know what you think.

Medical Treatment in a Workers’ Compensation Case – What You Need to Know

If you are injured on the job and you are a covered worker under the workers’ compensation law, your employer is required to provide you with medical care.  However, as you may suspect, what you consider as reasonable and necessary care may not be the same thing as what your employer and its insurer want to provide.

The posted panel of physicians is the starting point for your claim for medical treatment. Under Georgia’s workers compensation law, employers are required to post a list or “panel” of doctors in a reasonably accessible place for employees to see.   A valid panel should have at least 6 indpendent medical providers on it and at least one of these doctors should be an orthopedist.

If your employer has a posted panel, you may select a doctor and schedule an appointment, with the cost borne by the ermployer/insurer.  Often, your employer will try to direct you to a particular doctor or clinic with whom the employer has an on-going relationship.  Under Georgia law, you as the injured worker have the right to select from any of the doctors on the panel.  You can do yourself a real favor by avoiding doctors who may not have your best interest at heart – Ginsberg Law’s extensive experience with physicians throughout the State can be a huge benefit to you if you become our client.

If you choose to select a doctor on the panel that is different from the doctor that your supervisor is “suggesting,” you would be wise to ask the doctor’s office to verify that the workers’ compensation insurer has agreed to pay for the appointment.  Some employers honestly do not understand that employees have the right to choose a physician, and sometimes employers and insurers will intentionally playing games with the payment of medical providers for unrepresented claimants even if those providers are authorized.

If there is no posted panel of doctors, or if there is a panel that is not accessible, or if you have never been given any explanation of how the panel works, Georgia law can provide you the right to select your own doctor.  As you might imagine, employers and their insurers will do everything in their power to retain control of the course of your medical treatment. You may hear things like “that doctor is not authorized,” or “that doctor is not on our panel,” or “that doctor is not in our network.”  Be aware that there have been dozens of litigated cases in Georgia relating to the posted panel, and factors that either validate or invalidate the panel.  Part of our job as your attorney is to identify whether the posted panel issue is something to pursue or not.

To illustrate the importance of asserting your rights under workers compensation law, I would like to relate to you the story of a recent client of mine who suffered permanent nerve damage in his spine because of delays caused by the insurance company.  As any reputable doctor will tell you, time is of the essence if you have a serious injury. If you have a serious injury to your back, neck, arm, knee, foot, head or hand a delay in diagnosis can result in permanent injury and inability to return to work.

Our case involved a situation where a client hired us after enduring almost a year of frustrating delays in medical care. The client had a significant back injury after falling off the back of a truck. He hit the ground and had sharp, shooting pains in his back and radiating down his leg, with numbness in his toes. He was ordered by his employer to see the clinic down the road from his job. For several months, he stayed under the care of this clinic – taking medication and undergoing therapy that did not help, and actually made him worse.
When this injured worker (not yet represented by our firm) asked for a referral to a specialist he was ignored and offered more therapy. The clinic doctors released him to “light duty,” which he tried to do with very limited success. Finally, after many months the clinic doctor ordered an MRI scan, which revealed herniated discs at 2 levels impinging on a nerve in the spine.

Again, the injured worker asked for a referral to a spine specialist and after another full month of delay, he finally got the referral. The specialist confirmed the diagnosis of disc and nerve injury and ultimately the injured worker (now our client) underwent a fusion of his spine. Unfortunately, the surgery did not relieve his pain, because our client had incurred permanent nerve damage due to the delay in care.

Will Workers' Comp Cover a Knee Replacement Arising from Years of Heavy Labor?

As I was loading a 400lb. piece of freight on an aircraft, my (L) knee twisted. I was sent to a clinic and evaluated that I might need a knee replacement. I have a history of several knee surgeries, my job function is loading and unloading airplanes for 30 years. My question is can I obtain my own Dr. in the state of Ga., under the workmans compensation laws………Thanks
–Andrew

Jodi Ginsberg responds:  Andrew, thanks for your interesting question.  Here is how I would analyze your situation.  First, I would want to know if your potential need for a knee replacement is the result of your most recent injury or is it a combination of this injury and your past injuries/surgeries?

Your employer and its insurer may try to argue that your current problem is the result of past injuries as opposed to this incident, and they may try to deny coverage.

Even if your employer tries to deny coverage based on your old knee problems, your case may be winnable if a treating doctor will go on record that your most recent injury aggrevated your pre-existing condition, and if you did not misrepresent your knee problems at the time you were hired.

If your employer has accepted responsibility for covering your knee problem, then the next step would be to get you to a specialist. Under Georgia’s workers’ compensation law, an authorized treating doctor can refer you to a specialist and, generally, the insurer would be responsible for paying the specialist to treat you. If your employer has a valid "posted panel of physicians" there may be a specialist there that you could choose.

If the employer is denying coverage, you would need to request a hearing on the issue of whether your injury is compensable.

As you can see, the answer to your question depends on a number of factors. I do not think you can or should assume that your employer or its workers’ compensation carrier will act in your best interest.

Feel free to call me at 770-351-0801 if you wish to discuss further.

[tags] knee injury and georgia workers compensation, arising out of and in the course of employment, pre-existing condition and workers compensation [/tags]

Posted Panel of Physicians Must be In View and Explained by Employer

One of the most important parts of your workers’ comp case relates to who will be your “authorized treating physician.” The opinion of your treating doctor is very important to the development of your case – if your doctor downplays your injuries and releases you back to work, you may lose your benefits, you may lose your job, and you may lose important leverage in your case.

The Georgia workers’ compensation statute gives the employer/insurer the first opportunity to direct your medical care. Code Section 34-9-201 provides that at a minimum that covered employers – any employer with more than 3 employees – must make available to employees a posted panel of physicians containing at least four independent medical providers. The Code Section also provides for something called a “conformed panel” containing ten physicians or a managed care organization approved by the Georgia State Board of Workers’ Compensation.

In addition to maintaining a properly set out panel of physicians, the employer must make the panel accessible to employees and must explain how the panel works and the procedure for filing a claim.

If the panel does not exist, or if it is not accessible or if it is not explained, then the employer forfeits the right to control the medical care and you can go to any doctor for treatment and the employer will have to pay for the treatment.

An employer who does not have a panel can still controvert the claim but, as you might imagine, that is an uphill battle if the only on-going medical treatment in the case is from a friendly physician.

Posted panels are usually, but not always, printed on bright pink paper and may be posted in break rooms or near restrooms. The insurance defense bar recognizes the significance of the posted panel of physicians. One of the insurance defense firms that I frequently litigate against has published a paper presented to employers at a seminar – the subheading of the paper is “Solutions Which Will Keep Even the Most Atypical Claimant at Work!” Although this paper is written for the benefit of employers and their insurers, you as the claimant can learn a lot from it and I recommend it to you.
I frequently see examples of improper panels in many types of businesses. My dry cleaner, for example, has a pristine pink posted panel – with no physicians’ names printed on it. A local pizzeria near my house has a posted panel with two hospitals and one doctor – improper because it contains only three choices.

If you think that your employer did not have a proper posted panel at the time you were hurt, you can help your case by asking a co-worker to photocopy the panel or snap a digital picture of it.

[tags] posted panel of physicians, georgia workers compensation, O.C.G.A. Section 34-9-201 [/tags]

Closed Head Injury Case Results in $195,000 Settlement

Yesterday, I settled a very intense closed head injury case for almost $200,000. In looking back over this case, it strikes me that there are several important lessons here for anyone pursuing Georgia workers’ comp benefits.

This case involved a 47 year old construction worker who was struck in the head by a 100 lb. beam that fell on top of him from a height of over 14 feet. Although my client was wearing a hard hat, the impact from the steel beam knocked him unconscious and resulted in a fractured vertebrae in his neck.

Over the next 12 months, my client, acting without a lawyer, looked to his employer’s workers’ compensation insurance carrier to provide medical care. During that time he visited six different doctors on referral from the worker’s comp adjustor. Each time, he had to fill out an extensive new client questionnaire and he had to explain, as best he could, what had happened to him. This repeated new client intake process was very difficult for my client because he was in pain, suffering from memory loss and depression as well as severe emotional turmoil resulting from his accident. Despite all of these doctor visits, my client had not been referred for surgery and his condition was not signficantly improved.

Approximately 12 months after the accident, this gentleman called me to ask for help with his workers’ compensation case. Because the medical treatment so far had not helped much, I was able to convince the adjustor to approve as treating physician a top orthopedic surgeon here in the Atlanta area. My client subsequently underwent a two level fusion in his cervical spine (neck). We were then able to get a pain management physician approved as well as a psychiatrist to help with my client’s depression. And, after deciding that the timing was right to settle, we engaged in arbitration with the insurance company and agreed to settle the case for $195,000.

This was not a case where the insurance company denied the claim – there was no dispute that my client’s injuries arose out of and in the course of employment. When I was retained, my client was receiving his weekly wage benefits. The problem I had to deal with here was the insurance company’s unwillingness or inability to offer my client needed medical care.

Because my client was in pain, emotionally distraught and, most of all, unfamiliar with the Georgia workers’ comp system, he was not able to formulate a “big picture” strategy for his case.

The lessons you can learn from this case:

  1. you need to have a case strategy to follow and you need to demand that the insurance company fulfil its responsibilities to you
  2. do not assume that because the insurance adjustors are polite and cooperative that they are also working in your best interest.  The adjustor’s primary goal is to minimize the insurance company’s financial exposure
  3. physicians on the “posted panel of physicians” or who are referred by the adjustor may have divided loyalties.  You and your attorney are entitled to participate in the choice of physicians who treat you
  4. delay in getting appropriate medical treatment can result in longer recovery times and less satisfactory results

[tags] georgia workers’ compensation, posted panel of physicians, workers comp settlement [/tags]