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“How to Kill” Your Case in 3 Easy Lessons

Burdine & Brown Feb. 25, 2020

In a workers' compensation case recently handled by a colleague of mine, Hartford Casualty Insurance Company v. Hawkins, 2020 Ga. App. A19A1878, February 18, 2020, there were at least three mistakes committed by the injured worker that may have cost her a victory.

The worker, Ms. Hawkins, injured her left arm in a job injury. She received treatment from a number of doctors.

Mistake# 1-Harford assigned video surveillance to her case and the investigator “showed her using her left arm” to such a degree that it demonstrated there was no injury.

Mistake# 2 An FCE was performed and the evaluator's opinion was that Hawkins “gave a self-limiting effort”.

Mistake# 3 The Judge who heard her case “…did not find Hawkins' testimony about her continued pain to be credible based in part on (the Judge's) own observations during the duration of the five hour hearing, in which Hawkins did not fidget, grimace or exhibit any other behaviors which would suggest that she was in pain.”

Good gracious! Hawkins gave her case away by her own actions. Looking at the video, if she were moving about life's daily tasks without any favoring of her left arm when no one was “watching” her, then maybe she had no signs of injury past the initial stages.

Then, if she were self-limiting on the FCE, that is a huge red flag of her behaving badly. The purpose of the FCE is to be pushed to the maximum one can do physically, to get an accurate assessment of one's abilities. So if the examiner thinks you are not giving it your full effort, you will be labeled as a “slacker”. I always tell my clients to push themselves hard and to do anything less will cause many problems in your case.

The last issue was Hawkins' conduct at the hearing with a Judge 15 feet away watching her every move. According to the Judge, the injured worker just did not seem injured at all.

Fighting the insurance companies for Georgia workers' compensation benefits is not easy to do. But there are certain things every worker must be aware of: you will be observed for consistency of your story by video, testing, multiple and different doctor visits and personal observation by the insurance lawyer at your deposition and in open court for all to see.

This comes down to truthfulness. Apparently, Hawkins was not truthful and certainly not consistent and clearly it proved to many different people along the way.