In late 2019, I presented to a Social Security Judge in Alpharetta, my client (we will call him John Black). He was over 55 years old and had multiple back surgeries that left him with the residual condition called degenerative disc disease at multiple levels in his spine. He also had a depressive disorder and general anxiety.
His work history of 20 years was described correctly as sit-down work or sedentary work, the lowest form of employment. An FCE with this work residual makes it very difficult to win a case. But the Judge took seriously the psychological condition of my client, realizing he had constant and unrelenting low back pain that compounded his fragile psychological condition. The Judge stated: “due to the effects of the (client's) pain and depression on his ability to concentrate and maintain regular attendance, he would be off-task 20% of an eight-hour workday or would miss more than three days of work per month.” The Vocational Evaluator then testified that there was no work my client could perform if he were absent to this extent.
We were able to obtain extensive psychological records from my client's treating psychologist and we were able to ask the psychologist for her opinion based upon this treatment. As a result, the Judge was persuaded to award benefits. Interestingly, the Government's psychologist (Consultative Examiner) declared my client with only having mild limitations in his mental functioning. However, the Judge stated, “this is inconsistent with the mental health treatment records provided by the claimant's treating psychologist, which were found to be more persuasive as they take into account the claimant's pain in addition to limitation due to psychological symptoms, and are supported by relevant evidence and are consistent with the record as a whole.”
This documentation is all part of the development of the entire medical record which is extremely important in close cases. Again, it is important to emphasize that my client was found to be able to function at a sedentary level but for his psychological condition, which was real, truthful, serious, and had quite an impact on his day-to-day life. This is how we win a case based upon the entire medical/psychological record.
When Ms. XX called me at the office, she was completely filled with anxiety. She and her husband were about to end their marriage due to her inability to earn a living as she used to do. Neither one of them could put their finger on the source of her disability. Her family was abandoning her. No one believed she was ill, either mentally or physically. Ms. XX observed others who were receiving Social Security Disability Benefits and they, too, looked fine. One day she Googled “disability lawyers near me”, and my information popped up with lots of good reviews from my clients. This seemed to persuade her to call my office.
After 9 months of collecting medical records, writing specific letters to her many doctors, getting her to various medical testing to demonstrate to all who would review her condition. I was ready to present her case to a Judge at the Social Security Administration in early 2020. My client was under 50 years old, making it more difficult to win based on the SSA Regulations. My client had the functional capacity to work in a below sedentary capacity. The FCE examiner cited my client's irritable bowel syndrome condition that has been extremely well documented by numerous physicians throughout the past 2-3 years.
My client was in psychotherapy for numerous conditions including depression, anxiety disorder, obsessive-compulsive disorder, and bipolar disorder. She was in consistent, verifiable medical treatment. A mental residual capacity document was completed by the mental service treatment provider demonstrating 9 of 20 categories that were determined to be markedly limited in functional abilities. Her psychiatrist reported severe GI symptoms, severe diarrhea, emotional instability to stress and irritability, and these symptoms were expected to last indefinitely.
We had to pull together numerous therapists, psychologists, psychiatrists, GI doctors, and a neurologist to present a composite picture of my client's true disabilities. The jobs my client performed over the last 20 years were all unskilled jobs with no ability to transfer these skills to alternative employment. We asked the judge if we could use the date of her 50th birthday as the basis of a decision because the medical-vocational guidelines would allow disability status at 50 years of age and without transferable skills.
Once we used these facts, the vocational expert hired by the government was able to testify that given these factors there were no jobs in the national economy that my client could perform. The judge then found my client disabled as directed by Medical Vocational Rule 201.14 as of my client's 50th birthday. To win this case, there were a number of moving parts that all needed to line up to favor my client's application for benefits. We seek to present a winnable theory of the case and determine if the multitude of medical records, with history and psychiatric treatment, will conform to this theory. I do enjoy working with my clients to pursue a victory. So what is the extent of your disability? Will it meet the Medical Vocational Rules? Let's talk about it. Call me!
I brought the case of J.W. to Judge Spalding, an Administrative Law Judge at the State Board of Workers' Compensation, in late 2019. My client's medical care was being denied by the insurance company, specifically, low back surgery and pain management treatment before or after surgery.
It seems this is a tactic the worker encounters more often these days. The insurance company does not like the way the medical treatment is progressing so they throw up roadblocks like forcing my client into an arbitrary and heavily biased insurance company “independent medical examination”. These short, abbreviated exams are not “independent” in any sense of the word. They are designed to create a controversy to delay and force the worker into a desperate settlement out of fear the worker will lose their case because now there is a “bad” medical report that has been created and that a judge might utilize it to deny my client's need for future care. I have seen with my own eyes client cases where the former lawyer representing the worker attempts to “push” the worker into a settlement because of one of these “independent” medical opinions provided by one of the many trained lap dog orthopedic surgeons who “stand tall” for the insurance companies. It always seems to be orthopedic surgeons or their favorite pain management doctors who are the main culprits in this dubious practice. A weak lawyer puts fear into the worker to settle the case.
But enough of my soapbox here. The Judge said “no” to the insurance doctor's opinion that no further medical treatment was needed when the treating physician was suggesting a second low back surgery for my client. The Judge stated that the insurance doctor “offered no satisfactory treating opinion”. This is what I asked my client to testify to…in other words, I had my client testify as to the contrasting medical treatment proposals of the two doctors and the Judge believed my client's opinion. In fact, the Judge stated, “If he (my client) wished to undergo surgery with all its attendant risks for the hope of improving his condition, I will defer to him.”
This is powerful stuff. I gave my client a chance to be in control of his own testimony. Most lawyers fear what their clients will say in open court. Not so here. The Judge also said of my client: “I find him to be a very credible witness.” This is very important. Putting a client on the witness stand does subject the client to the skilled cross-examination of the insurance company attorney. However, upon proper preparation of my client along with a thorough knowledge of the medical treatment my client so desperately wants and desires, the client can be very persuasive. I do not have to be “Perry Mason” and the insurance lawyer does not have to be “Matlock” in order for the Judge to listen for the truth, to hear the genuine plea of my client to be allowed to get further medical care so that my client may have an opportunity to feel less pain and maybe, just maybe, improve his or her medical condition and then return to a productive life again. This is why I do what I do and enjoy it so much. Most lawyers I know and am familiar with would prefer the easy life of settling their cases without the “rough and tumble” of the courtroom. But without the courtroom as the ultimate weapon for the truth to surface, there may be no victory won. Come see me and let's talk about whether you have a case that should be presented to the court. Not every case is suited for court. Will the Judge say you are a credible witness?
I had the privilege of representing a lovely lady who worked 19 years for a “big box store” in Metro Atlanta. She was a laborer responsible for continuous stacking, sorting, moving, pushing, pulling, and loading and unloading of merchandise both coming into and exiting this company. 18 years into this employment found her needing medical treatment. Her employer authorized her to get treatment NOT under workers' compensation, the logical and lawful system for her treatment, but using her personal physician and group insurance. She was treated for about 9 months with injections, therapy, and medicines. She remained at work, doing the best she could. She was released by her doctors with the last physician telling her she could come back and have surgery if she wanted to “go that route”. My client declined that option. She continued to work.
During year 19 at the same company, she got to the point where she could just go on no longer with her job. It was too painful to work. Her leg pain was simply unbearable. She came to see me. I sent her to her family doctor with a job description of the strenuous duties she was performing daily and had been performing for the last 19 years. Her doctor took her out of work for a week, citing her job duties as the reason to cease work. The doctor ordered a low back MRI. The employer wanted my client back at work at the end of the week but when the MRI results were read, the family doctor referred my client to a neurosurgeon for an evaluation.
The employer terminated my client stating that the statute of limitations for filing a workers' compensation claim in Georgia was one year from the date of injury. The employer asserted that the date of injury was almost a year ago when she first started receiving medical care from her group insurance doctors. We argued that she sustained an aggravation of a pre-existing condition because she kept working until she saw her family doctor. On the day the family doctor took my client out of work was the day we used as her new injury date/aggravation. After deposition testimony from my client and from two of the employer representatives, plus mounds of medical evidence the case was heard by an Administrative Law Judge at the State Board of Workers' Compensation.
One of the critical findings in this claim turned on the word “injury”. The Judge stated in his Award that “Injury under the Workers' Compensation Act means that the employee need not be in perfect health when working for an employer. Every employer takes the employee as they are. As such, if an employee has a pre-existing condition, work may “aggravate” a pre-existing condition… and an aggravation of a pre-existing condition is considered a work-related injury.” (Para. 20, Award) The Judge did not “buy” the statute of limitations argument of the employer. He awarded my client benefits because she kept working for the same employer and finally just “gave out”. The Judge called this the aggravation.
I find the employer's assertion very troubling. How could a person work 19 years and still wind up with an employer who denies the workers' low back problems as not related to her work? Admittedly, had my client been hired and worked only 6 months or less (an arbitrary number here) and then complained of an aggravation of a pre-existing condition, I would have had a much more difficult time proving her current job and not her past work of many years was the cause of her back problems. But not in this case. 19 years, one job. The insurance folks delayed and denied our hearing to fish for old medical records. They found none. They suggested a small settlement “to get some money into my client's hands.” I will admit that most lawyers would find this very tempting to take because they would do no more work on the case and receive 25% of the lump sum settlement. I did not do that. I counseled my client on the best strategy, what was at stake (the need for major back surgery), and over a year's worth of back pay due to benefits. The right way was to fight, to pursue the matter to the courthouse. This is the way I do things.
This was a very gratifying case to handle. My client is grateful that we did not “cave in” for a little bit of settlement money. Having won every aspect of her claim in the Award from the Judge, my client is now on the road to medical health. And while her weekly disability benefits are certainly less than her salary while at work, she does receive regular payments until her health returns as part of the Judge's Award. This is all a big relief for a person who gave probably 25% of her entire life to a company to do what they directed her to do. If you know of someone who is “barely making it” at work, who is trying desperately to keep working so as to draw a salary check and not be forced into filing a workers' compensation claim without any guidance, tell them to contact me to explain their situation. I might be able to help them. You never know until you inquire.
This is a deliberate strategy on the part of insurance doctors, company clinics and employers, and insurance companies in Georgia that is used quite often. Labeling an injury as a preexisting condition, not related to a job at all, “takes the legs out from under” the injured workers' claim, and for that matter, the worker's life. In a recent case I handled, the company clinic doctor stated my client's rotator cuff shoulder injury was, instead, a type III acromion deformity and could not possibly be a job injury. His proof: an X-ray only. My client was forced to hire an attorney to fight this arbitrary decision. Of course, the workers' compensation insurance company was glad to totally deny the claim. Yet the first lawyer did nothing to pursue the legitimacy of the medical condition. On multiple occasions, the first lawyer told my client she should settle her claim. Finally, getting tired of hearing settle, settle, settle, without the necessary surgery she would need, she terminated her representation with the first lawyer.
I took over and had to hit the ground running. We needed evidence that her surgery, which she used group insurance to pay for (since workers' compensation denied coverage) was the result of job injury. Then we needed to secure all records of any prior treatment from her family doctor that demonstrated she had NO prior treatment for this same shoulder in her past. We accomplished that. The closer we got to the hearing, the more delay tactics we had to put up with from the insurance lawyer. First, it was “we don't have the prior family doctor records.” Then it was, “we need a clarification about the Type III acromion defect because we still think that is the real problem” (even though the MRI showed a clear rotator cuff tear).
The insurance company lawyer pleaded with the judge for 3 different postponements (while I was her lawyer) but finally the judge “put the hammer down” and said, “no more.” We received 3 different offers of settlement, all low but nevertheless somewhat interesting to a person who has been totally strapped for money for a year. Fortunately, my client had family and friends to prop her up financially as she is still recovering from this serious surgery. So with the hearing a week away and nowhere to hide, the insurer has agreed to accept this claim, back pay my client to the date of injury, reimburse the group insurance company the medical costs paid out, and to continue to pay my client weekly benefits while she is out of work, recovering from the surgery. The only bad news is that my client through a Court Order of the judge will be paying me 25% of her benefits as my attorney fees according to my contract.
A couple of takeaways here: Insurance companies and their “drone” doctors will use every effort, every medical “discovery” to deny a claim on any pre-text possible. Denial of a claim puts the injured worker on their knees financially, desperate to find a way to survive. Once an insurance lawyer enters the picture to “defend” the insurance company's position of denial of a claim, layers, and layers of delay follow making it difficult to move the case towards the court and judicial decision.
My client's first lawyer saw the delays but instead of fighting hard and attempting to “plow through” the junk being thrown at them, all they wanted to do was settle, settle, settle. Fortunately, my client saw through this charade and fired the lawyer.
Because the injured worker is required to go to medical care provided by a company doctor to “validate” their claim (and not go to a doctor of their own choosing as most states allow), they can easily become the victim of deliberately mislabeled medical conditions. The panel of doctor requirement of Georgia has been a huge burden placed upon the injured worker and there is no sign of this part of the law changing in the near future.
If a worker is injured and then after a recovery, begins another work with his/her spouse in the spouse's restaurant business, earning no money at all (just “helping” the business) is that fraud? This was a close case I handled in Gainesville, Georgia, and one in which all parties decided to settle instead of going to court.
My client had cervical spine treatment from her job injury. During her recovery, her husband began work as the owner/manager of a small restaurant serving breakfast and lunch. My client, as she was recovering, was doing very light cashier work at the restaurant. She apparently thought that since this was a family business and she was not earning money doing this work, it would be acceptable to help out. She did not tell me she was doing this. The restaurant did not open for business until six months after my client's job injury. The insurance company, acting on a tip, sent a private investigator to the restaurant to “catch” her doing heavy work. This they did not find but they still took pictures of her pouring coffee and handling the cash register. Then the insurance company terminated her workers' compensation benefits. The insurance company argued that she hurt herself again doing this job at the restaurant. Two doctors said no to that idea. Then they argued that she was working within the meaning of the workers' compensation laws and not eligible for future weekly benefits. So we were stuck with whether helping her husband at the restaurant would be considered work, even if it were only 2 or so hours a day (and not every day).
The Workers' Compensation Code says:
“A person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right of control.”
O.C.G.A. § 34-9-1 (2). Payment does not have to be in cash or check but can be in the form of virtually anything of value.
Was my client doing a “workaround” of the law? I felt that if my client was not at the restaurant doing what she did, her husband may have needed another worker, thus showing the value of the wife's services to her husband's restaurant. This could be Fraud but since the employer/insurer knew she was “working”, the question of fraud was eliminated for the most part. I was glad we settled this case.
After agreeing with the insurance company to change orthopedic surgeons for my client's low back injuries, we moved forward with Dr. Velez as the new doctor, a spine specialist with Resurgens. After a period of treatment, Dr. Velez proposed a single-level partial disc removal. My client did his due diligence research, we spoke on a number of occasions, and he consulted his family doctor and thereafter concluded that this partial disc removal was not the right operation for him.
My client had a face-to-face meeting with Dr. Velez about the type of operation the doctor proposed. As my client later testified in court, the doctor said: “it is my way or the highway.” This was shameful and completely egocentric behavior on the doctor's part. To add insult to injury, Dr. Velez then released my client to full duty work with a 5% whole body impairment rating after initially stating my client was totally disabled! The insurance company then stopped completely my client's weekly disability benefits. I wrote a very strongly worded letter to Dr. Velez asking him for the reason why he gave my client a full duty work release (Dr. Velez had not seen my client for over 60 days). I paid him a fee for answering my letter and I waited for a response. After numerous attempts to contact his office, the office manager sent my money back stating the “doctor refused to answer my letter.” I could have subpoenaed him but instead, I asked my client to submit to an independent doctor's examination and evaluation.
I chose Dr. Douglas Linville, an independent, fair-minded, and well-experienced orthopedic spine surgeon. Dr. Linville essentially stated two things:
Further testing was needed to see how my client's injury affected his entire lumbar spine.
Dr. Velez proposed surgery would not help my client-he needed a more extensive surgery.
The insurer countered by sending my client to Max Steuer, a reputable Neurosurgeon for a one-time examination to counter Dr. Linville's opinion.
The insurer's goal was to offer my client the one-level partial disc removal, stating this is all they are responsible for in his workers' compensation injury claim. I obtained additional medical diagnosis and another narrative report from Dr. Linville, asking him to pull together all the medical evidence. Once this was accomplished, we were ready to submit everything to a Workers' Compensation Administrative Law Judge for a decision. Our position was that more than a small, partial disc surgery was necessary to treat the entire effect of my client's lumbar spine job injuries. The insurer argued they should still be in control of the medical treatment, Dr. Linville should not be authorized, and only my client's lumbar spine at the point of the partial disc removal was their responsibility. We recently received a great Award written by the ALJ giving my client Dr. Linville as his new treating physician. The Judge's opinion was that Dr. Linville essentially gave my client hope of a comprehensive treatment and a better hope of recovery.
This was a very satisfying victory. Now there are no limitations on my client's treatment and my client will not ever have to return to Dr. Velez. Also, my client's weekly benefits were restored since Dr. Linville believes my client is not capable of any work at this time. From the time of our first request for a hearing until we received the Award of the Judge six (6) months went by. Depositions, interrogatories, new medical doctor's examinations, follow-up on medical treatment and interpretation of diagnostic testing, preparation of the case for a hearing and two postponements, brief writing, and review all are part of this formidable Award. Lots of work but we have given our client a new opportunity to get better. This is what I like to do.
One of my most satisfying cases recently was when I had an opportunity to represent “Larry” in a very difficult case. He called me after he said the workers' compensation Judge ruled against him and his lawyer. I told him I would appeal his case but he had to fire his lawyer first. He did so. This client's first lawyer did not listen to “Larry”. Admittedly the client was hard to deal with in some ways. But after the insurance company sent this client to an insurance doctor for a second opinion about back surgery, the client attempted to call his original lawyer to tell him: “I think this doctor will help me.” He could not reach his lawyer. The call went to voicemail. Later the client called again. The attendant told him he called the office far too much and hung up on him. Then the client got very frustrated and gave up.
On the morning of the court case, the insurance lawyer told the Judge they did not have the medical report from the insurance company doctor. My client's lawyer never attempted to postpone the hearing and the Judge ruled against my client based on the information presented that day. When I took the time to talk to my client, once I started representing him, I heard what he said about this insurance company doctor making a positive comment about his medical condition. Listening was the key.
In our appeal, I was able to subpoena the missing doctor's report. It was extremely helpful to my client's case. We were able to turn the case around, winning the appeal. This meant that we could have another hearing with the new evidence presented to the Judge. The Judge ordered back pay to “Larry”. He was awarded his new doctor so he could have his surgery and ultimately settled his case for $200,000. All because I listened to the client's story.
There might have been a bit of “good lawyering” in the mix. One of the keys to being a good lawyer is listening to your clients (and to all witnesses). Tell me your story. I will listen. Always.