How Legislation is made in the Workers' Compensation Arena
You have heard it said that watching legislation be created is like making a good Italian cook make sausage! Well, that analogy is a truism for a reason. In the field of workers' compensation, let me try to explain how an idea becomes a bill, and in many cases a bad bill intended to hurt the injured worker.
In Georgia, we have an Advisory Council (A.C.). It consists mostly of non-elected people who are “stakeholders” in the workers' compensation system. By that I mean the title of most of the A.C. members give to us their background and their business interest. Most of these folks do not represent the interests of the injured worker. For instance, the employer, the insurance company, the insurance agency, insurance lawyers, doctors of all types and training, diagnostic facilities, car dealerships, manufacturing interests, quarry associations, all represent big organizations that get paid in the workers' compensation system. And frankly, many of these groups care little about the injured worker.
Then there is the trial lawyer, the lawyer who is representing the interests of the injured worker. There is also the union representative (11% of businesses in Georgia are unionized). These two groups are the only ones trying to represent the injured worker on the A.C.
There is now in place at the General Assembly (the Georgia Legislature) a custom that states that no piece of legislation will be presented to any legislative committee unless it is presented first, in detail, to the Advisory Council. The A.C. assigns the proposed legislation to an internal committee who meets to debate and decide on the merits of the proposed bill. This is the battleground of many wars for various pieces of legislation. Various committee members take sides, depending upon what type of stakeholder they are. The injured worker, lawyer, and union representative are so overwhelmed that they can barely stop the bulldozers. But wait, there is hope on the horizon.
Over the last ten years, slowly, the injured workers' lawyers have been building relationships with the individual legislators who are in their own home districts. By establishing personal relationships with their home legislators, they provide resources, opinions, examples of what good and bad legislation looks like in the workers' compensation arena. This grassroots effort has cut down many a harmful piece of legislation. Organization, lobbying, and fundraising as well as personal ties have saved the day. We must be ever vigilant because the forces of the stakeholders who will harm the injured worker are still at large every day.
Q-What is Total Disk Replacement?
A-Just when you thought that the spinal fusion operation was going out of “style” comes a newer version that is called the total disc replacement. It is a total intervertebral body joint replacement. This unit is made of titanium metal, the type of metal that promotes bone growth. It is said to last fifty years, so it can be used at any time in a person's injury, not just for a person who is at advanced age.
The idea is to restore motion, movement, in the spine. The old fusion reduces motion. As one surgeon told me, “motion is lotion”. Sounds corny, but movement preserves the spinal column. It was designed for movement.
Anyone who has a herniated disc is eligible for this total disk replacement. But, so are those who have degenerative disc problems, and that is most of us. The FDA has approved the use of the total disc.
The total disc looks like a metal cage. It is a system of trusses. Three levels at a time can be fused, if need be. No bone graft is needed. The screws for the implant are getting better and better over time. The cage is filled with cartilage, phosphorous, and calcium. This type of operation can restore disc height and will relieve spondylosis by restoring stability in the spine.
I do hope that the injured worker will be given the opportunity to have this operation available to them. Typically, the insurance doctor who operates from time to time tends to perform minimalist operations designed to cost as little as possible and to take as little time as possible to heal so the worker can get back to work more quickly. Nothing wrong with that, but let's give the worker the best opportunity with the best equipment.
Q-What if I get hurt in my garage, will I be covered by my boss' workers' compensation policy of insurance?
A-This issue is a bit strange and unusual yet quite logical in its conclusion. If you are driving home after work is over and you enter your garage in your car and your girlfriend is next to you and your wife is in the garage waiting to shoot you, then the answer is no. That would not be a job injury, not even if you were the owner of a company. Your garage is of no significance.
But if you were headed home with a lot of paperwork and maybe a bag of money to count from your restaurant and you were met by two burglars in your garage who shot you, then this could very likely be a job injury.
I am referring to the case of Kil v. Legend Brothers, decided by the Court of Appeals on June 21, 2019.
The Court of Appeals looked carefully at the facts. The robbers knew Kil came home at a certain hour. They knew Kil owned a restaurant. They knew he did a lot of paperwork from his home and most importantly, that he brought home a bag of money to count and deposit the next morning in his local bank. (sounds like they had inside information)
The Court said that based on “these unique circumstances…” though the injury took place in his garage and not at his restaurant, the injury was still work related.
The moral of this story is don't bring your girlfriend home when your wife is there and if you are bringing a bag of money home, be prepared to defend yourself from intruders who may know your routine.
Q-What if I have an aggravation of an underlying congenital condition due to a job injury?
A-This event could be considered the responsibility of the workers' compensation insurance company. They must pay for your medical treatment that is needed to get you better. Your lawyer will probably have to present to an Administrative Law Judge competent and credible evidence that demonstrates this. Competent and credible means the sources of the medical evidence is reasonably based and believable. You must win based on the preponderance of the evidence. Keep in mind that if your doctor supports this theory of aggravation, the insurance company will shop around for a doctor to say it is not so. And there are a lot of insurance doctors out there eager to say no for the insurance companies so by the time your lawyer presents your case to the judge, there are at least two medical doctors equally qualified on paper who take completely opposite positions about your aggravated congenital condition.
Preponderance of the evidence is defined as “that superior weight of the evidence upon the issues involved, which, while not enough to free the mind wholly from a reasonable doubt is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than the other.” (This is a direct quote from the Official Code of Georgia Section 24-1-1.) This is what guides the Judge and why I love the law.)
Q-“Why has my case been postponed so many times?”
A-Let's be honest. Requesting a hearing is as “easy as pie.” The hearing is assigned two days after your lawyer requests one and the date is 60-75 days away. You say, that's great, let's go.
However, a basic principle in court hearing is that everyone, all parties, must have time to prepare. The insurance company MUST, by Court Rules, have an attorney assigned to defend them within 20 days of the date the hearing notice is published.
Then the insurance company must answer the written questions I send to them. They are given 30 days plus mailing to respond. That is 50 days.
Now they call me and ask for a first time postponement. All judges will grant that postponement even if I stand up and say no!
Then the insurance lawyers send us questions such as asking for a history of all your medical treatment in your entire life. All your jobs and whether you were fired from any of them. Your criminal/arrest history. Yes, they can ask this of you. We take 30 days to respond. Then they want to take your deposition. That takes 20-30 days to schedule and take down.
Then they start sending out subpoenas to all the names of doctors, hospitals, clinics, courts, prior jobs you have ever had. Sometimes quick responses come in. Sometimes they don't. This is added delay, usually 60 days.
Then the stinky insurance lawyer wants you to go to his/her hand-picked insurance doctor. A notice is sent to us. The examination is set for 30 days in the future, giving the insurance attorney enough time to collect all your prior medical records, trying to find a “smoking gun.”
Once the negative insurance doctor report comes in, the insurance company SHOULD be ready to go to court. Certainly, we are ready and have been ready for a long time.
Adding up all this time counts to about 5-6 months from the first hearing date. How frustrating this is. (But in an automobile accident case that will be decided by a jury, it will be a 2 year wait and maybe longer.)
Generally speaking your case should be ready by the 3rd setting. Any postponements after that need to be discussed with my clients and I need to be prepared to present to my client a pretty good reason why we need a 4th setting.
I will say this: no judge will force an insurance company to try a case before they have had legitimate and reasonable time to prepare their case. The key is reasonable and legitimate postponements.
It is my job to keep pressing the other side about obtaining medical records. This is the biggest source of delays in the workers' compensation system. I will insist on conference calls with the judge to hold the insurance company's feet to the fire. Still, judges do not want to have a case appealed because the other side argues they were deprived of sufficient time to prepare for court.
But what if your deposition testimony does not go well? What if old medical records of a prior injury surfaces and it could have direct bearing on your case? We may want to postpone to obtain other records or to go to another doctor for an opinion to determine or the relevance of this newly discovered medical record.
Litigation (requesting a hearing before a judge) has many consequences we do not initially see. There are pluses and minuses of requesting a hearing on any issue. Are you ready? Is your lawyer ready?
“When an Insurance Company Denies your Entire Claim”
Of course, this is bad news because you must have an attorney to present your care before a Judge at the State Board of Workers' Compensation. Do not attempt to represent yourself.
If your claim is denied for medical reasons, your lawyer will need to collect many medical records, including a boat-load of prior medical treatment records. This will take 60 days.
You will need to submit to a deposition, sworn testimony taken by an insurance lawyer in my presence in my office.
You will need to answer many questions in writing about your life, work history, arrest record and the insurance company will ask you to attend an examination with one of their doctors, usually a “bought and paid for” doctor who we call “Dr. NO”. The truth is NOT the objective here, but to paint your condition in the most negative light. (there are some exceptions but they are rare indeed).
After numerous delays, probably totaling 4-6 months, we will be ready to present your case to a Judge. Your lawyer must have a convincing set of new medical records to demonstrate your medical condition and ability or disability for work.
If you win your case, you pick your doctor and the insurance company pays for your complete treatment. Usually you will receive workers' compensation weekly benefits during your treatment. Your lawyer will receive 25% of your weekly checks as his/her ongoing fee. If you lose your case, you receive nothing. An appeal of a bad decision is not likely to be overturned.
Q-What do I need to bring to a Settlement Mediation?
A-The plaintiff or claimant (injured person) needs to bring nothing to the mediation. The person's lawyer should meet with the client a week or so before the mediation to talk about the process and most importantly about the strategy of the negotiations that will occur.
Clients need to be aware that the starting number is the highest number they will see. The insurance company and their lawyer certainly have another number in mind that is substantially lower than our opening number.
Settlement mediation is about compromise. We come to the table with an amount based on specific facts of the case. Sometimes we must estimate the existence of permanent impairment or how long the person will remain out of work or whether the person will be eligible for Social Security Disability Benefits. Frankly, some of these “facts” are to some degree, a bit of a guess. The question is: is it a reasonable assumption or truly a guess.
This is why the number the insurance company puts on the table will be different from our numbers. They always look at the “facts” differently from how we do.
Mediation allows all parties to state their views of the facts, what is positive and what is negative about one's case. Sometimes we forget to see things as the insurance company sees things.
I have a mixed feeling about my client making opening remarks at the beginning of the mediation. If my client generally has something to say, then I want to hear it a week before the mediation so we can “rehearse” the content of the remarks. This is another reason for a pre-mediation meeting far in advance of the actual date.
Lastly, if there is any disagreement between you and me, your lawyer, as to the value of your case, a meeting well in advance of the day of mediation is a good time to have a frank discussion of the value of your case. Communication is the key. Then we are on the same page, united in our view as we head to the Mediation.
Q-What does a lawyer need to bring to a Settlement Mediation?
A-I am amazed at the comments many of the mediators make to me during the course of a mediation. A number of mediators have said “You are one of the few attorneys who gives me information in advance of the settlement mediation date about the case.”
That is a bit strange to me. I always send to the mediator a copy of our settlement demand and the most important medical information from which we use to value the case and support our reasoning. Yet, this is not done by the vast majority of attorneys who take their clients into a settlement mediation.
This is flat wrong. The mediator NEEDS this information so that he/she can understand one's case. It seems so simple to gather this information prior to the settlement day, organize it and e-mail it to the mediator who has agreed to mediate the case. I want the mediator to grasp the issues in your case and to know the strengths of your case. That is best done with advance information.
You see, lack of advance preparation will be considered by the other side as a sign of weakness or lack of knowledge of your case on the part of your attorney.
There is nothing more harmful than to be perceived by the other side as ill-prepared. If your lawyer has NOT met with you, NOT counselled with you as to the strategy and value of your case, your case will NOT settle for the optimal number.
Q-What are assessed attorney fees and does an assessment free me of paying my lawyer?
A-For your lawyer to be awarded assessed fees in a case that goes to court means that the insurance company's defense of your case was UNREASONABLE. This means that the case was defended without any reasonable grounds. In other words, the insurance company had no basis for resisting your case at all. How do they overcome that burden of unreasonableness? They go find a doctor who says “no” when your treating doctor says “yes”. It is truly that simple.
Therefore, there is little chance that you will be relieved of the obligation to pay your lawyer's fees.
Q-Must the Judge favor my long time doctor and his opinion over an insurance doctor who has seen me only one time?
A-The answer to this question is not as simple as you would think. The judge, in their Award, assigns weight and credit to be given to expert testimony and this is a question exclusively for the judge to make. Longstanding Georgia law provides factfinders (Judges) the freedom to accept or reject evidence as they see fit, particularly expert medical evidence. Expert doctor testimony is not conclusive or binding and is submitted by either party for whatever the fact finder considers it to be worth. This language is used in the recent case of McKenney's Inc. v. Sinyard, 350 GA. App. 260 (2019). So, beauty is truly in the eye of the beholder (here, the judge).
So if the insurance company can fish around and find a doctor who will say your injury is no longer disabling or that your current condition is not the result of your job injury, they will clearly jump on the opportunity to present this doctor's opinion to the judge deciding your case. What do they have to lose? If the judge finds the insurance doctor's one time opinion more persuasive, then you could lose your case.
Your lawyer must be aggressive in obtaining the best possible medical evidence, presented in the best possible light to persuade the judge to decide for you. This costs money to get the most detailed medical reports. Without this type of persuasive evidence, it could cost you more than money. You and your lawyer need to make the right choices.
Q-What if my boss directs me to do some task after work hours and I have an accident/injury in performing these duties?
A-On October 17, 2019, the Georgia Court of Appeals decided the case of Centurion Industries v. Naville-Saeger (Ga App. 568, 2019).
A worker was employed as a millwright (for A-Lert Construction Services, a Division of Centurion out of Valdosta) and was part of a travel crew that went from state to state to perform various work duties. Carter, the employee, was involved in an automobile wreck travelling alone to a job site. Generally, when an employee travels to and from a work site, he/she is considered outside the scope of employment. The exception is if the employee is on a “special mission” for the employer.
The employee was found to be returning from a personal mission, not related to his employment at the time of his automobile wreck/injuries.
Injuries that take place outside of where the employer has their business usually not considered a job injury. But if the employer tells the employee he/she must do something as a special mission and the task must be done at the time, even if it takes the employee off premises, then an injury that occurs in the course of accomplishing this special mission will be considered work-related and a workers' compensation claim could be successfully mounted.
Q-What is Concurrent, Similar Employment?
A-I represented a gentleman who was a cook in a large School district. He sustained a serious low back injury in November of 2017. The school district said they were not going to consider the workers' compensation because when the employer took my client to the ER, the employer said to the triage nurse “we all agree this is not a workers' compensation injury”. My client was taken to the hospital and provided medical treatment and did not think twice about the comment.
Three weeks later, when my client did not receive any WC disability benefits because he has not been at work for the last three weeks, he asked his supervisor “where is the money?” The school district told him they denied his claim for this one statement he did not even make!
Mr. “X” asked me to represent him in his workers' compensation claim. It took me six months to unravel the emergency room records and get to the bottom of things. We took three depositions, obtained an MRI and an orthopedic opinion evaluation and treatment on a lien and prepared the case for a hearing in front of the judge. The other party asked for a mediation before the court date and we were able to settle the case.
During the litigation, my client had a side business where he would cook healthy lunches for this brother and a work crew. They were construction workers on a high rise building nearby. My client asked me if he can continue this work since it was part time and very light work while he was pursuing his workers' compensation claim. He did not want for his workers' compensation claim to be affected if he was working. It was a good question to ask me. I told him he could continue to do so because this activity will be considered concurrent similar employment since his full time job was cooking. Both jobs were similar in nature.
Georgia has a very old and archaic law that could be easily modified. Now the law says that the worker can receive an increase in his weekly workers' compensation benefits based upon the concurrent similar employer. This limits the worker to similar work. The work similar should be taken out of the law. Many of us may have part time jobs to supplement our income. But that part time job may not be similar work due to our similar work of our “day time” job. If not, we would not be eligible for an increase of workers' compensation benefits. Also, whether or not the part time work was similar, but it was performed prior to the job injury, the employer could not reduce the workers' compensation benefits because the worker had this job prior to the injury.
The happy ending here, is that my client used the settlement money to buy a food truck and serve his healthy foods to his local community. It took six months to reach this happy ending to what it seemed to be a strange beginning to his workers' compensation case.
Q-Can a workers' willful misconduct bar completely a claim for job injuries?
A-The law in Georgia reads: “No compensation should be allowed for an injury or death due to the employer's willful misconduct.” (OCGA § 34-9-7 (A).)
So what is willful misconduct? The Georgia Supreme Court gave three (3) examples on a decision in 2017.
- Safety rules violations amounting to willful misconduct by an employee must be actions that are intentional and deliberate AND must be done with the knowledge that it will likely result in injury, OR with a wanton and reckless disregard of its probable consequences OR that it will probably result in an injury.
This definition is multi-faceted meaning that an employer or insurer must prove all these parts of the definition of willingness to win their case.
The law of workers' compensation in all 50 states is called a no fault law. The employer/insurer gives up their right to assert fault and the injured worker gives up their right to sue the employer for full damages including pain and suffering.
The willful misconduct statute is the first successful attempt on the part of the employer/insurer to chip away at the “no fault” aspect of the law of workers' compensation.
This exception is seemingly logical and easily understandable but will not be the end of the employer/insurer's desire to bar other conduct, less clear and less deliberate.
In a 2018 case, the employee stuck his hand into a running machine to clean it after being told numerous times not to do so and after watching numerous videos of why not to do so. It seemed to be a pretty clear case of stupidity. But others will follow as will the legal battles. The facts will determine the outcome. For now, this defense to workers' compensation benefits is rarely employed.
So, if your injury is caused by a violation of a safety rule and nothing more, you should prevail in court with a good fight. Negligence is much different from willful misconduct.
Workers' Compensation System and Statistics
In late 2018, the State Board of Workers' Compensation published statistics for the entire year 2017, their last full year of numbers.
What is most interesting to note is the amount of payments by employers and insurers and self-insurers for medical care. This number was greater than the payment of weekly workers' compensation payments to the injured worker. Here is the breakdown:
Payments to workers for lost time: $651,233,036.00
Payments to all medical treatments: $713,012,567.00
What does this tell us? To me it says that I should have set out on a different career path – medicine! All kidding aside, here are a few observations:
There are far more doctors, urgent care clinics, pain clinics, physical therapy clinics, hospitals, MRI facilities, and the like, than there are lawyers. Clearly, there are lots of lawyers, but in the workers' compensation field, lawyers representing the injured worker and those who represent the insurance companies, the numbers are spread out evenly and there are about 450 in the State of Georgia at this time.
Is this good? Is this fair? More importantly, does this number represent an evenly balanced workers' compensation system when both the employer and insurer are equally represented? The data would say this is about the average in the United States.
The number of injuries where the worker needs to stop working due to the severity of the injury was 31,979 in Georgia for the year 2017. That means that there are approximately 88 injuries every day in the workplace in Georgia.
Georgia seems to be a rather dangerous place to work. It is a right to work state, and the employer very clearly controls the workers' compensation system.
There is also a very interesting total and that is the number of medical only claims. That means people who needed treatment but did not lose time from work. There were 85,820 medical claims. That means that there were approximately 235 at work injuries per day in Georgia. If you add this 85,820 to the number where the employee was not able to continue working after the injury, the number is a staggering 117,799 or 322 people each day experiencing an injury of varying severity.
The total medicals paid for those 85,820 who did not lose time from work was $96,790,241. That is a heck of a lot of medical payments where the injured worker does not lose time from work. Either this means that the clinic system is quickly patching people up and putting them back to work and they are not being reported as lost time injuries because the employer finds other temporary work for the employee or the injured worker does everything he or she can do to avoid losing time from work and having to file a workers' compensation claim and deal with the entire workers' compensation system which is litigation intensive, full of frustration and delay and deny throughout.
The wisest thing to do to is avoid dealing with workers' compensation if at all possible. Our outcomes are scattered at best, and at worst the litigation is plainly insufferable.
On a rather morbid note, I recently found statistics for the year of 2017 that reported 5,147 deaths in the workplace in the entire United States (which is more than three times the amount of Georgia highway fatalities for the same time period. In 2017, Georgia highway fatalities was 1,549.) America's most dangerous occupations are as follows (per 100,000)
Fishers and related fishing workers 99.8
Logging workers 84.3
Aircraft pilots and flight engineers 48.6
Refuse and recyclable materials collectors 35.0
Structural Iron and Steel workers 33.4
Drivers/Sales workers and truckers 26.8
Farmers/Ranchers and other agricultural managers 24.0
First line supervisors of grounds keeping and landscaping services 21.0
Electrical powerline installers and repairs 18.7
Georgia has a moderate share of the most dangerous occupations. So when your spouse gives you a kiss on the cheek in the morning (noon or night) and you grab your lunch pail to head to the job of your dreams, do be careful. It's a dangerous world out there!
Q-Should I take the advice of the Nurse Case Manager assigned to my case by the insurance company?
A-I had a Nurse Case Manager e-mail me recently, stating she needed my permission to work directly with my injured client. This is the law. However, the NCM can speak to the doctor without my permission. I hate that Rule that allows this!
The NCM said: “The adjuster concedes that your client's injuries involved not only his right shoulder but his low back.” (This was going to be an issue but the insurance adjuster decided not to fight about it).
She continued: “I would like to recommend to you the following 3 orthopedic surgeons who are well qualified to treat back injuries and whom I have a lot of confidence in.”
“These 3 doctors are Lee Kelly, Hal Silcox, both with Peachtree Orthopedic Clinic and Dr. Robert Greenfield with Resurgens, she said.” The NCM must have thought I just started practicing workers' compensation law yesterday. These 3 doctors are NOTORIOUS insurance doctors. They are so far from fair and balanced it is not even funny. Recently, a judge called one of the 3 a “polarizing doctor.”
I told this NCM that if she sees her job through this lenses of these type of doctors, my client and I do not want nor need her help. I knew right then this NCM was bought and paid by the insurance folks. She had no objectivity whatsoever. How could I say this? Through 40 years of legal experience in this field.
Each of these doctors have been in business to help the insurance companies for about 30 years each. I avoid them “like the plaque” and I will tell anyone and everyone the same thing.
Lastly, my client has the right to sit in and participate in a conversation the Nurse Case Manager has with your treating doctor. But if the NCM schedules that appointment when are not in the office, how will you know it is taking place? This is why I hate this Rule!
Q-What if the insurance company lawyer wants to interview or have a meeting with my treating physician in my workers' compensation injury claim?
A-This question presumes your claim is in litigation which would further mean you have hired your own lawyer (or I hope you have done so). So both sides are “lawyered up” as they like to say.
Now the insurance lawyer decides he/she is going to make a little private visit with your treating physician but plans to tell no one about it.
Your doctor (who might be an insurance doctor in his/her heart of hearts) still has the right to say NO. No private interview with me the doctor could say. A doctor may agree to be interviewed by an insurance lawyer in an ongoing case but only on the condition that either their own lawyer or more likely your lawyer has an opportunity to be present. If the insurance lawyer insists he/she want to record the interview, your lawyer has a right to have a copy of the interview.
Sometimes the doctor's staff sets the appointment with the insurance lawyer without putting much thought into the significance of what they are doing and how this event could hurt you, the injured person. Think about it. The insurance lawyer could say almost anything to the doctor about your past, about a non-existing criminal background, about a prior injury that never happened, in an attempt to influence the doctor to say something that is contrary to the truth or to anger the doctor.
I have found that if I ever suspect something like this is what is going to “go down” I will contact the doctor's office manager or coordinator of patient care and inform them that the doctor should NOT participate in such a meeting unless I am there.
There are a few insurance defense lawyers who are completely unscrupulous. When they enter the case defending the insurance company, I need to be “on my toes” and expect nothing but the worst to happen.
The Georgia Supreme Court weighed in on this issue in the case of Arby's Restaurant v. McRae.
Q-What if my IME doctor wants to do a diagnostic test that has never been done on me before now?
A-An IME is when you tell not ask, the insurance company adjuster you want an interdependent doctor to examine you. Remember there are a few rules before you can demand this:
- You must have received weekly benefits within the last four (4) months.
- You must notify the insurance adjuster in writing before you see the IME doctor.
- You can require the insurance company to pay $1,200 for this examination up front.
I don't advise the injured person to do this on their own. What doctor will you use? Do you have any experience (other than your neighbor used this doctor a year ago) in your decision making?
Assume you gave this IME doctor your records of your injury. Then the doctor suggests an EMG/NCV, an MRI with contrast, a CT scan, a myelogram/CT scan, a discogram. If any of these tests have NOT previously been done for this injury, you have the right to demand the insurance company to pay for the test and THEN the doctor should see you again after the test.
The whole purpose of the IME is to have a fresh set of eyes (and point of view) to view your injury and give straight forward medical advice. Something you may not have received before this IME.
Q-Who control the medical care of the injured worker?
A-About 6 or 7 years ago, a handful of progressive orthopedic surgeons would ultimately recommend a spinal fusion for a patient after patient had a 2 level disc herniation or multi-level degenerative disc problems along with a herniated disc at one or more levels.
Especially in the workers' compensation field, the insurers would fight “tooth and nail” against such a procedure, labeling the doctors as overly aggressive or imprudent in their radical proposals. There have even been unofficial campaigns, spearheaded by insurers and their legion of insurance defense lawyers to discredit a few orthopedic surgeons and to convince the judges, insurers, law makers and other decision makers that these doctors were far too radical, were harmful to the workers' compensation system and should be avoided at all cost. They won. Many of those surgeons who were really ahead of their peers in ways to treat devastating injuries were marginalized or their practices were greatly reduced in size.
Fast forward to today and you will find that even the insurance oriented doctors are performing these same operations they were railing against only a few years ago.
The change has occurred gradually. The fusion operation has proven to resolve numerous serious back and neck medical problems. And, it is now performed as the first operation, not the operation of last resort.
While I cannot truthfully say what caused the insurers of workers' compensation injuries to drop their general resistance and change courses ever so slowly, I argue that the insurers need to be fought vigorously and at all levels by the workers and their lawyers to obtain the best possible treatment. Patients that were forced into a single level disc excision or partial disc removal 6 years ago, only to need further and major surgery 2 years later due to recurrent, debilitating pain, are the front line testimony of a failed system when the insurers control the doctors.
Let the doctors do what is best for the patient. Keep the insurer's control of the method of medical treatment to an absolute minimum. Until we do so, the workers suffers as the patient and the cost of medical care will increase. Much of my practice of law involves litigation over the most appropriate medical care for my client.
Q-Does a return to light and restricted work end your workers' compensation claim?
A-Definitely not. But let's be specific here. Are you returning to a lighter duty job at the same company where you were hurt or have you found another employer who will accommodate your light duty restrictions?
Returning to your employer of injury with a restricted work duty order from the authorized doctor does not prevent you from receiving further medical care nor does it prevent you from receiving a supplemental benefit (TPD) from the workers' compensation insurance company. This TPD benefit could last for a number of years.
If you found another job and you can do light duty there you still have an open claim against the original employer where your injury occurred. But here is the problem. If you aggravate your original injury by work you perform at the new employer, no matter how slight, and you return to the authorized doctor, if the doctor believes you have aggravated your original injury the workers' compensation insurance company will argue they are no longer responsible for your original injury and any new medical treatment you might need.
What do you do? While it is easier said than done, prudence and caution should dictate that you examine carefully the physical requirements of the new job to make sure all aspects of that job can be done without any re-injury or aggravation. Wanting to return to work to feed your family is commendable, but sustaining a new injury at a new job will only cause two insurance companies to fight over who is responsible for your continuing care.
Q-Should I stop my social media activity after my injury?
A-If you are genuinely injured and cannot perform certain activities of daily living but you are actively posting on social media things that show you are very active socially, then either one of these things are true: you are not genuinely injured, or, you are exaggerating your social media presence.
People who are genuinely injured should stop posting anything on social media. Do not delete anything but just don't add misleading information to any site.
Insurance companies love to see your inconsistencies. They will, sooner or later, be able to discover what you post.
So, just like that Capital One TV commercial that says, “What's in your wallet?” you will be asked, no doubt, “What's on your social media platform?” No one likes a hypocrite. Be truthful but be careful as well.
Q-Does my lawyers have legal malpractice insurance? Is it required to practice law?
A-I continue to be amazed at the number of lawyers who do not have this very important insurance. Legal malpractice insurance protects the public, our clients, in cases where the lawyers missed a statute of limitations by neglect or otherwise, or where the lawyer misused his/her escrow account (holding client money) or for any number of other reasons. Not doing a good job is NOT legal malpractice.
The cost of legal malpractice insurance yearly depends on the kind of practice the lawyer is engaged in. If the lawyer is a one lawyer shop doing workers' compensation, automobile accident cases and Social Security Disability law, the cost is around $2,000 to $3,500 per year for $1,000,000 of coverage.
The proposal now before the State Bar would only require the lawyer to say yes or no when the lawyer renews their license yearly and pays their bar dues to remain in good standing.
I believe a legitimate question to ask a lawyer at your first in person interview is: “do you have a currently paid up policy of legal malpractice insurance?” If the lawyer gets resentful at this question, you know what the answer is! Then it is time to continue your search for the right lawyer.
Q-Should I let the insurance company doctor who has operated on my shoulder, set me up with a FCE without any push back on my part?
A-An FCE is short for Functional Capacity Evaluation. A certified physical therapist, trained in administrating this test, gives the test which shall last between 2 and 4 hours depending on the type of injury you have sustained.
Here is the problem. Too many FCE physical therapist people assume you are not going to give your full effort. They assume you will be guarded of your movements. Some FCE examiners will call you a faker, a malingerer even though you are pushing through your pain and are genuinely trying.
So the FCE provider sends their inflammatory report to your doctor and to the insurance company. How are they going to look at you when they read you have given less than full effort, your blood pressure did not go up (a way they say you were not trying hard enough). The opinion of your doctor and the adjuster will turn on a dime. They now see you as a slacker.
This report end up at your employer's personnel office.
Now you are cooked! All because some 25 years old overly aggressive therapist trying to make a name for him/herself to get more business sent their clinic.
The take away here? You cannot let the insurance folks control your medical case to such a degree that you let them do what they want, refer you to whomever they want. They know who gives those bad reports. They are not stupid. If they can guide you to a stinky highly prejudicial FCE examiner. They will do so in a heartbeat.
Do not wait to this point before you decide “it is time to get me a lawyer.” By this time, you have waited too long. I like to tell folks that if you put a frog in a pot of water, the frog will like it. But when you turn up the heat slowly, the frog will relax and still like it. Then you turn the heat even way up and the frog is fried and didn't see it coming. Watch out! The workers' compensation system has many tricks hidden along the way. You do need an expert to guide you.
Q-Is that a fair offer of settlement?
A-Will an insurance company offer the proper value of your claim when you are not represented?
Talk to any adjuster and they will argue with great emotion that they are evaluating your claim properly, and giving you a fair offer, whether in a workers' compensation case or an automobile accident case. Sometimes they will tell you how they arrived at the settlement number but that is rare.
I cannot tell you how many times I had folks come to me even in the year 2020, as they find my name on Google or being referred by satisfied prior clients. They ask me: “Mr. Brown, is this offer of sufficient money?”
I answer by spending about one hour's time with that person by talking to them about all the issues in their case. These are some the questions that I ask:
- Has this injury been properly diagnosed by a certified orthopedic surgeon or neuro surgeon?
- Has the treatment that has been rendered been only chiropractic, PT and nothing else?
- Has the pain that the person continues to experience not diminished hardly at all from the time of the injury? If not, then we can clearly conclude that the case cannot be settled yet and more medical treatment is needed.
- Most of the cases that come to me deal with lack of proper medical treatment, insufficient diagnostic testing and statements from certain doctors (that should know better) that my client has reached MMI and can return to full duty work, wherever they were working prior to the injury. The full duty, no restrictions mantra issued by about 90% of the company doctors would be laughable if it were not so tragically sad.
In the workers' compensation field, there are an overwhelming large number of insurance doctors who need to receive referrals from the insurance company and they will say whatever it takes to increase their own business This borders on criminal behavior. The almighty dollars prevails further. You know who you are and you need to change!
I recently had a client who had 3 surgeries to his wrist and recently had six injections of a substance that was not even FDA approved. He was ordered to return to full duty work multiple times.
At the last examination when my client was told he had 0% and he can return to work at any type of job without any limitations, the insurance company quickly offered this person a settlement of $10,000. This was a man who has been a laborer for over 35 years. There is no way he could return back to work in any capacity.
We first sent him to a Board Certified doctor who spent four hours reviewing this person's medical records and this doctor prepared a report for me totally refuting the insurance doctor's made up falsehood.
This story continues in litigation now and I cannot say more at this time but it goes to show the reader that it is absolutely rare that the insurance company will be honest with you and will make you a fair offer to settle your claim without proper legal representation.