Contents

Q:

When must the workers' compensation insurance company start my weekly benefits if I cannot work?

A:

From the day the insurance doctor says you are temporarily disabled from work the insurance company has 21 days to start your benefits. A 15% penalty is attached when they take longer to do so.

Board Rules say that the insurer must also issue a WC-2 form and file it with the State Board as evidence that your weekly benefits have started, or what date and at what benefit rate. The WC-2 Form is not “set in stone” and can be changed if found to be incorrect at any point in the future.

Q:

Who determines how much weekly disability money (TTD) I am supposed to receive when I am out of work?

A:

Your employer files a WC-1, a First Report of Injury, with your 40-hour wage on it. Does it have your actual wage on this form? Most likely not. The HR Department does not care to accurately pull your actual wages to enter on the WC-1 form. All they want to do is push the WC-1 form onto the insurance company for processing.

If you want your correct wages, you will need to pull your 13 weeks of wages prior to your injury and get this information to the claims adjuster as soon as possible. Then the adjuster will, by law, be required to re-do the WC-2 or WC-1 forms, and then you could get a higher benefit rate of pay.

Q:

Can I draw unemployment benefits and workers' compensation benefits at the same time?

A:

Yes, but… a few things to remember. If you apply for unemployment benefits you must certify in writing that you are readywilling, and able to work. So, if you are able to work, you are not eligible for workers' compensation disability benefits. Well, not quite.

If you certify you are readywilling, and able to perform only light-duty or restricted work duties due to your on-the-job injury, you can draw a combination of benefits.

The workers' compensation insurance company can deduct your unemployment weekly checks from your weekly workers' compensation disability benefits. After the deduction, you might be back to square one.

I find that one's legal ability to draw unemployment benefits is quite helpful when the workers' compensation insurance company denies or suspends your workers' compensation benefits. This way you are not left with NO income at all while you fight with the insurance company over your entitlement to further disability benefits.

Remember, the goal of the insurance folks is to settle your claim for as little as possible and if you are totally out of money, they are in a great position to offer you pennies on the dollar to settle. But with unemployment benefits, you at least can put food on the table for your family for a limited period of time.

Q:

If the workers' compensation insurance company denies my claim, can I use my group insurance benefits to pay for my medical treatment? Who pays the co-pays and deductibles?

A:

One of the largest weapons in the arsenal of the insurance companies is withholding medical care for the injured worker. If they deny your medical claim, or accept only an elbow injury (for example) and not your shoulder and/or back injury, your lifeline is to use your group insurance to pay for the other parts of your body that need medical care.

If you ultimately win your case, your group carrier will want their money paid on your behalf to be reimbursed.

Many group insurance companies will argue they have no obligation to pay because your complete condition is the responsibility of the workers' compensation insurance company.

You just have to show that the workers' compensation insurer has controverted your claim or parts of it. I have had little problem getting medical treatment paid for by group insurance so long as my client and I agree to reimburse them when and if workers' compensation is found to be responsible for the medical treatment.

I try to have my client pay a very small amount of the co-pays or deductible to insure continuing medical treatment and pay the balance due at settlement of their claim. This may not always work but I find the group insurance companies a lot friendlier than the workers' compensation insurers.

Q:

Why do the workers' compensation doctors not want to release to me my medical records for the treatment of my injuries?

A:

This is the strangest thing. These are records of your medical condition. You should be able to get them whenever you receive treatment. Do not let the front desk receptionist tell you no. File a complaint with the Medical Association of Georgia (MAG) in Atlanta. Doctor's offices quickly give your personal records to the workers' compensation insurance company. Why? Because they are paying for the treatment. So the doctor's office thinks (incorrectly) that your medical records are the property of the insurance company.

Most doctor offices now will give you a form when you leave the doctor's office that addresses a few very important things: your work status, your diagnosis, the need for physical therapy or another diagnostic testing, and your return date to the doctor's office. Resurgens calls this a “Work Link” report. Do not leave the medical office without it.

However, the next important medical document is the actual office note or report. Most all doctors now use the same format to create this form. This gives you the “thinking” behind what the doctor puts on the “Work Link” form. It addresses why the doctor wants to perform surgery or why the doctor wants to order an FCE or to send you back to work without restrictions.

This document is usually available within the same day or within the next few days after your appointment. This is what I use to “push” to get my clients the medical care and treatment the doctor has ordered. If I do not “push” the insurer/adjusters tend to just sit on the medical request, taking no action at all.

Nevertheless, I do ask my clients to call me and tell me what the doctor wants to do for them in case I do not receive a copy of the medical status form or the office note. This helps me to manage their case more efficiently.

Q:

What is a PPD rating? If I have been given a rating, will I be able to get some money for it? When will this happen?

A:

PPD means permanent partial disability rating. It is a rating issued by your treating doctor (usually) and it is based on the AMA's Guides to the Evaluation of Permanent Impairment, 5th Edition. The Guides have been written for and by doctors. It is based on loss of range of motion permanently. The Guides is about 500 pages and is used all over the USA.

If you are at your maximum medical improvement point, your doctor should automatically give you a percentage impairment rating.

The insurer must begin payments of the rating within 14 days after the rating is published.

But no payment needs to be made if you are still receiving TTD or TPD benefits. Only one benefit can be paid to you at a time. There are a few exceptions, though.

A rating of 15% to your elbow for a fracture and surgical repair, if you have lost serious motion permanently, and if you are receiving $675 per week in benefits, could pay you $22,781.25.

A rating to your spine of 10%, due to loss of motion but without surgical intervention and if you are drawing $675 per week in benefits, could net you $20,250.

The insurer has the option of paying this benefit to you weekly and not in a lump sum.

Q:

My “employer” calls me an independent contractor. How will this affect me if I get hurt on the job doing work for him/her?

A:

The first thing I like to say to anyone who asks me this question is QUIT the job! You are about to be set up for failure!

#1- This boss of yours is probably controlling your time, how you perform the job, when you do the work and is probably supplying you with the equipment and tools to do the job. If he is doing all this, you are not an independent contractor, you are an employee.

#2- So now you get hurt performing this job. Do you think for a moment he will offer you his policy of workers' compensation insurance coverage to get you medical care and pay you benefits while you are temporarily out of work? Don't kid yourself. This person will deny your claim in a heartbeat. You will be forced to hire an attorney and it will take 6 months to get you any relief. By that time, this shyster will be bankrupt.

The advantage of calling you an independent contractor is your “boss” pays no taxes on your behalf (no FICA-Social Security taxes), probably offers no health insurance, no retirement plan, no sick pay, no vacation pay, no overtime pay, and of course, no workers' compensation benefits if you are injured.

In Georgia, the laws established defining the employment relationship heavily favor the creation of an employer-employee relationship and NOT an independent contractor status of the worker.

However, this may change as there are now “app-based” workers that Silicon Valley has named “marketplace contractors”. What does this mean? These new workers provide labor that is accessible through an online marketplace. Examples are Uber and Lyft. The next will be TAKL or other repair services that you summons online with their app.

Numerous states have carved out of their workers' compensation laws places for these marketplace contractors. There are no signs this phenomenon will hit Georgia, but I predict that the allure of not paying workers' compensation premiums, no taxes, no vacation, etc., will be too enticing to resist in the long run. Litigation will surely follow soon.

Q:

When does my employer or the insurance company lose the right to control my medical care?

A:

  • When your claim is completely denied as a job injury;
  • When the insurance company doctor states you no longer need medical care for your job injuries and you are dismissed from care completely;
  • When the insurance company believes you have had a new injury to the same body part that occurred after your job injury (possibly due to a car accident, a slip and fall, etc,);
  • When your employer fails to post a panel of physicians in a breakroom or in some other prominent place for you to see before you have a job injury. Georgia is still one of the few states requiring an employee to use a panel of doctors when hurt on the job.

Of course, there are other ways the employer loses control. See my case testimonials for a good example of a dispute between company medical specialists and an independent medical specialist

Q:

If I return to light duty work after a job injury but cannot perform the light duty job and I am forced to suspend my work, MUST the insurance company re-start my benefits?

A:

You are now dealing with a section of the law OCGA 34-9-240 called the “240 Rule”.

Insurance companies describe it as their way to COMPEL you to return to work to a light and limited approved job so that your claim does not turn into a “long term disability case”.

Your benefits must be reinstated if you cannot handle the job for 15 days after you attempt to return to work. However, there are many roadblocks thrown up by the insurance company so as to not restart your benefits. As it is stated on one insurance company lawyer's website, “If the employee does not complete the 15 day grace period but the reason is unrelated to the work injury (some personal reason) then the aggressive position is that benefits do not need to be recommenced because the basis for the claimant being no longer employed is not related to the suitability or availability of light-duty work.”

(Constangy, Brook website)

Insurance companies will aggressively push the employers to re-hire or accommodate the injured worker, not out of any altruistic or pure humanistic motive, but as a way to force a suspension of the worker's weekly benefits. What seems to happen next, is the employer harasses the employee to the point where the employee wants to quit the job or the employer fires the partially disabled worker for a reason allegedly “unrelated” to the light-duty job. This double-barreled hit on the employee borders on the unethical but the law permits this situation all under the guise of “helping” the workers find some work instead of staying home and drawing disability benefits.

Q:

How can I push the insurance adjuster to approve or authorize my treatment since my doctor will not move forward without knowing he/she will be paid for the treatment cost?

A:

This question assumes the doctor treating you is considered the ATP (authorized treating physician) or a specialized physician referral by the ATP. This also assumes that the body part you want treated is part of your accepted workers' compensation claim.

Ever since 2018, the PMT Conference is the way to avoid any delays in medical treatment. The process is simple. All parties get on the phone with a Judge at the State Board of Workers' Compensation who issues an opinion on the same day. The opinion is declared an Order and thereafter may be appealed within 20 days.

The Chairman of the State Board of Workers' Compensation spoke at a breakfast in mid-2019, and stated that about 80% of these conferences never took place because the insurance adjusters or their lawyers authorized the proposed medical treatment right before the conference call! In 10% of the cases, the insurance company controverted the procedure and a hearing was scheduled. In the other 10% of the cases, the Petition was withdrawn for insufficient evidence. All in all, I am quite pleased to be able to use this excellent tool to move my client's treatment forward.

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 a 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 takedown.

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 the 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 a direct bearing on your case? We may want to postpone obtaining 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?

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:

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:

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:

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:

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 mixed feelings 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 give 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 advanced 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 counseled with you as to the strategy and value of your case, your case will NOT settle for the optimal number.

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:1.Has this injury been properly diagnosed by a certified orthopedic surgeon or neuro surgeon?2.Has the treatment that has been rendered been only chiropractic, PT and nothing else?3.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.4.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 is an overwhelmingly 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 prevail further. You know who you are and you need to change!

I recently had a client who had 3 surgeries on 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.

Q:

What is the 10 day rule for submitting medical evidence before a hearing?

A:

Have you ever heard of the expression: “I was sandbagged”? This sandbagging prompted the 10-day rule. Lawyers practicing in the workers' compensation courts would obtain medical records or written medical opinions that would be totally unfavorable to the worker and introduce them at the hearing, not giving the worker's lawyer a chance to rebut or refute it. This sounds incredible but this was happening for years. The judge would many times give the side who was “sandbagged” 30 days to get other evidence to the contrary. Then that newer evidence would produce further delays. So the 10-day rule was established. Now, if I introduce a dynamic opinion letter less than 10 days before the hearing, the insurance lawyer can ask the judge who will hear the case to strike the letter, disallow its introduction or they could be allowed to file a motion to buy more time to get his/her own medical narrative to refute mine.

The 10-day rule has cleared up a lot of “funny” play just before the hearing.

Q:

What is discussed during a conference call with the Judge in a workers' compensation case the day or so before my hearing?

A:

  • Typically the insurance lawyer is trying to buy more time to get medical records of a prior injury you had (and maybe you told no one about);
  • To buy more time to get an insurance doctor to finish up with a fabricated or exaggerated report about your medical condition;
  • To buy more time to find witnesses who will perjure him/herself against your truthful testimony;
  • To buy more time to starve you into agreeing to a low-ball settlement of your claim.

Can you call this type of conduct practicing law ethical? Certainly not. Yet this is what I find these defense lawyers will do to please their insurance company clients. And by and large, the meaner, nastier, and under-handed they get, the more their insurance company clients want to use them again in other cases.

There may be 1 in 100 injured workers who exaggerate or possibly manufacture a claim. It may even be more like 1 in 150. But if you listen to the insurance lawyers tell it, there are 1 in 5 of the injured workers who exaggerate or fake a claim. This is the only way they can sleep at night and why many young lawyers leave their big defense firms and try to make a go of it representing the worker (after denying the workers' benefits for the many years these lawyers were on the other side).

William Shakespeare said it well: “this above all to thine own self be true.” If this were practiced more, there would be a lot less litigation in the workers' compensation system.

Q:

Why is there so much fighting in a workers' compensation claim?

A:

I tell my clients that, once injured on the job, their claim turns into a full-blown war between the employer and their insurance company on one side and the worker on the other.

Everyone takes sides. The doctors have, by and large, been persuaded by the insurance company executives and their drone adjusters that every worker is a morally corrupt person, out to get as much money as possible without working again, always seeking full disability status. The stories that are told, mostly false, of the worker faking an injury, faking disability, and over-treating with opioids are almost unbelievable.

The accusations that the workers, after an injury, were somehow bad employees before injury (no matter what their attendance or their yearly ratings were) boggle my mind.

Did the worker conspire to have an injury? Does anyone want to get hurt? I think not. But the ill-feeling toward the injured workers, even by their peers who are still working, are amazingly negative.

What can be done about this? Very little in the present scheme of things. Why is that so, you say? I blame, in large part, the lawyer TV advertisers. These people are like hucksters…telling all who hear that they can get you “the money you deserve” for your injuries. “You have rights,” they say and these lawyers want the worker to “lawyer-up” with them and only them. These TV “Hawkers” no more care about the plight of the workers, their clients, than does the insurance adjuster. Yet they mar the reputation of the workers who is hurt and just want medical treatment (even if only rendered by a not-so-good company doctor who takes orders from the insurance adjusters and their managers.

Lawyers do help the worker to somewhat “even the playing field.” But the workers need to be very careful who they retain to represent them. Otherwise, they will be treated as a pawn in a meaningless game of chess, won only when the claim is closed after a minimal payment for injuries.

Workers these days know they have certain rights. They need wise counsel which is only given by a select few. Let's hope you, the injured worker, find quality counsel in the Metro Atlanta area.

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 the 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 are 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 to 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:

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 an 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:

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 the lenses of these types 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 has 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 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 upfront.

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 the 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 straightforward medical advice. Something you may not have received before this IME.

Q:

Who controls 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 the 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, lawmakers, 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 suffer 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:

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 therapists 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 ends 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 to their clinic.

The takeaway 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:

When should I tell my lawyer about what my doctor says about my condition?

A:

I know this sounds a bit crazy but I want my clients to call me and inform me of what their doctors say after each medical appointment. Even if the doctor says to continue the same course of treatment, your conversation with me allows me to probe deeper into what the doctor is thinking and how I need to react to it.

This is so critical because, after 40 years of legal practice, I have a pretty good “understanding” of what the treating doctor wants to do for my clients and when they want to do it. This allows me to plan ahead, strategize, and know when my client's case is ready to settle.

Client sometimes says they do not want to bother me with details. Yet these details are essential knowledge/information for their case.

Most lawyers do not care to be bothered about these details. In fact, most lawyers let their staff “manage” the medical treatment. But the details are everything. I have three others staff members to help me if I am tied up. We have a computer system to create important notes. I need them all. Generally speaking, lawyers do not like to get involved in the details of a case. That is where I thrive.

People are the reason I practice law. Helping them through the legal system is my immediate goal. And I delight when I can do so.

Q:

The Company Clinic and their orthopedic specialist say my bone spurs in my neck are not a job injury. Are they right?

A:

Bone spurs generally develop in people in their late 50's or older. Bone spurs do not require medical care. But when you have been lifting, twisting, pushing, pulling boxes in your warehouse or in a parts distribution job for years and years without a problem BUT then one day, you lift awkwardly with a particularly heavy box and now you can't move… and the clinic doctor dismissed your problem as “bone spurs brought on by age” you are about to get denied justice!

What did the growth of one or more bone spurs cause in your spine? It caused a narrowing of your spinal canal so that at any awkward movement, the spur can cause a pinching of your spinal canal, your spinal nerves, or nerve roots, all causing terrible pain.

The clinic doctor and their paid henchmen, the orthopedics, will blame age and normal wear and tear on your pain. Now it is called a degenerative disc disease (note how the disease seems to indicate NO INJURY. It is all in the labeling).

Bone spurs cramp the space around your spinal nerves. Neck pain develops, sometimes radiating pain to your arms or legs occur (depending on the level of the spurs). Muscle spasms develop along with cramping and weakness.

X-rays are only the first level of a diagnosis. A CT Scan or MRI shows the bony growth in more detail.

Treatment can include over-the-counter pain relievers, muscle relaxers, spinal injections, physical therapy, or chiropractic treatment.

If the bone spur continues to interfere with your spinal nerves, various surgical options may be recommended. But one thing is certain-the insurance companies will argue “to the death” that this condition is due to anything but a job injury. Rest assured of that.

Q:

Is the Corona Virus-19, if controlled, a job injury subject to the workers' compensation laws of Georgia?

A:

Yes. If properly diagnosed, this virus could be classified as an occupational disease under the workers' compensation statutes of Georgia, but not as a job injury.

The Georgia occupational disease statute is archaic, antiquated, and wholly inadequate and should be eliminated completely. Here is why:

  • You must prove you were not exposed to the disease in any other way. This means you must demonstrate that you were not exposed to the Corona Virus through your neighbors, through travel to other places where the virus could have spread, etc.
  • The disease is not an ordinary disease of life to which the general population is exposed;
  • There must be a direct causal connection between the disease and the work you performed.

This burden of proof is heavy and subject to extensive litigation delays.

Nevertheless, if you can demonstrate that others at your job site also have the virus you are in a much better position to be able to prove your case.

If proven positively, you are entitled to medical care and disability benefits as in any job injury. However, there is another hurdle that must be overcome which is apportionment. This means you must prove that the exposure was solely due to risks at work.

Q:

Do I have a permanent impairment rating?

A:

The American Medical Association has published a book titled Guide To The Evaluation of Permanent Impairment, 5th Edition consisting of approximately 400 pages. This publication is used by doctors in all 50 states. It shows doctors how to rate an injury by using various physical instruments to measure the loss of range of motion and in some cases pain (a much more difficult concept to quantify). This book is generally considered the “bible” for impairment ratings. One item to remember is the Guide states that the percent rating cannot be given until and unless the patient is at maximum healing. The Guide also allows the doctor to rate two or more separate injuries in the Combines Values Chart at the end of the book.

Q:

Do I have a claim if I suffered psychological injuries only?

A:

Georgia law does not allow for a person to file a claim for psychological injuries without an accompanying physical injury. You cannot assert that your stress, clearly caused by your job duties, has caused you to be disabled without first sustaining a physical injury.

Georgia is one of only a handful of states that takes this position. The Court system in Georgia has been able to erode this barrier but there is still a long way to go.

Firemen, policemen, and first responders are those who are most likely to develop psychological injuries and the reasons are quite clear. Yet, Georgia law has no sympathy for the totally legitimate condition due to their work stresses. So, the courts look for evidence of a physical injury and then, if psychological issues develop thereafter, these issues can be treated as part of the job injury. My paralegal, Ja'Net Sirles, completed a research paper on this subject for law school.

Q:

Can an employee quit his/her job if the Corona Virus spreads to their workplace?

A:

If a partially disabled Georgia worker quits work stating that the workplace is not safe due to Corona 19 virus outbreaks at the workplace, should the worker be entitled to an automatic resumption of full workers' compensation benefits…and for how long?

Georgia has a long legal tradition through legislation and court decisions that if the partially disabled worker is provided alternative work within their physical limitations, and then terminates the offered job, there is a steep burden of proof for the worker to show the termination was due to the injury and that a diligent job search is needed to justify a resumption of full benefits.

How many fellow workers need to contract the Wuhan virus at my workplace before I say “that is enough…I quit.” I suspect it would not take many people coming down with the virus before there is a stampede to leave work.

The partially disabled worker, due to a job injury, will find it particularly difficult to find alternative work. But to leave work due to the speculation, however real it may be, that the workplace environment is unsafe, presents a whole new set of arguments and burdens of proof that may be genuine barriers to a resumption of full benefits. If the employer and insurer want to play “hardball”, and argue that their workplace is safe, who decides this question? Is there going to be a ratio of 2 workers contracting the virus out of a workplace consisting of 100 employees (1 of 50 or 50%)? What if that percentage is reduced to 1 out of 15 employees? Where is the line drawn?-See my blog for comments from Georgia Governor Brian Kemp about this issue.

The employer clearly holds the cards here. The worker needs a good lawyer, a sympathetic judge and a boatload of facts that fall clearly on the workers' side to obtain disability benefits due to the speed of the Wuhan virus to the workplace.

Q:

How difficult will it be for Georgia worker to mount a claim for Covid-19?

A:

When the China Wuhan virus began to rear its ugly head in Georgia, I saw it as a wonderful economic opportunity for insurance companies and their lawyers, the emissaries of “delay and deny” to fight every claim.

Just look at all the elements of proof the innocent injured/affected worker will have to overcome to have their contracted virus considered a job injury. For instance:

  • How long can the worker rely on the ER physician to certify disability?
  • When must the worker return to the Georgia panel of doctors to obtain treatment and disability status after an ER examination or hospitalization?
  • Is the exposure to Covid-19 solely due to exposure at work? Are they sure this disease was not transmitted through using MARTA (Metropolitan Atlanta Rapid Transit) buses and trains? What about family member exposure? What about at Publix, Kroger, or at church? The list goes on without end.
  • Is there any permanent disability resulting in long-term lung damage assuming the worker recovers? What if the worker smoked in his/her past? What portion becomes Covid-19 related? What if the worker is a current smoker?

Litigation takes time. The burden of proof for the worker will be extraordinary to overcome in these matters. I strongly suggest the Georgia Legislature modify the existing workers' compensation law on the issue of causation and burden of proof to place the entire burden on the employer/insurer to prove the Covid-19 virus is not the source of the worker's disability and that it did not originate from the place of employment. Even this change will still cause delay but it might find a larger percentage of employers and insurers who are willing to or compelled to forgo litigation and accept the claims of a worker who has contracted this awful Chinese Wuhan virus from their workplace.

Q:

Can I draw unemployment benefits if I am currently receiving workers' compensation temporary total disability benefits?

A:

An example of this answer is ‘yes” is the following: You are receiving TTD benefits while recovering from your job injury and you are still an employee of your company. Then, out of the blue, your employer sends you a notice you have been terminated effective immediately.

First of all, the termination of employment does not stop your receipt of weekly TTD benefits. If you apply for unemployment immediately after termination, and tell the Unemployment Office you could work only light and limited work, you may be able to receive some form of unemployment benefits. But if you are taking the position that your job injury will not allow you to do any work at all in any capacity, and your doctor states you are totally disabled, even temporarily, then you are not eligible for unemployment benefits. To draw unemployment benefits, you must be able to perform work. Total but temporary disability work status due to a job injury eliminates your ability to draw unemployment benefits.

Q:

How Legislation is made in the Workers' Compensation Arena

A:

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 look like in the workers' compensation arena.  This grassroots effort has cut down many harmful pieces 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 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:

When an Insurance Company Denies Your Entire Claim

A:

Of course, this is bad news because you must have an attorney 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 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 traveling alone to a job site. Generally, when an employee travels to and from a worksite, 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:

Workers' Compensation System and Statistics

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 traveling alone to a job site. Generally, when an employee travels to and from a worksite, 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:

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 is 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:

What are the most obvious ways I can hurt my job injury claim?

A:

  • Failure to report, written or verbal, a job injury within the first 30 days after it happens (the sooner the better);
  • Failure to follow through with authorized medical care ordered by the panel of doctors (company doctors) presuming a panel was properly posted on the employer's premises; (Georgia is one of only a handful of states still requiring the employee to use a panel of doctors for treatment of a job injury);
  • Refusing or failure to return to appropriate employment after the doctor approves the new or different job;
  • Failing to disclose prior injuries or claims especially to the same body parts;
  • Refusal to timely take a drug test.

Q:

What is Concurrent, Similar Employment?

A:

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 the similar work of our “day time” job. If not, we would not be eligible for an increase in 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 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 the 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.

Q:

Does my lawyer 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 current 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:

What is an FCE (Functional Capacity Evaluation)?

A:

Please see my explanation in the Social Security Sections of my FAQ's. The FCE is an extremely important element in a workers' compensation and in a Social Security Disability claim. It gives clarity to what my client's abilities are when the medical specialist is getting ready to release my client back to work.

Q:

What is a Confidentiality Agreement?

A:

This is a clause that a number of insurance companies want my clients to sign as a part of a workers' compensation settlement. There are pluses and minuses to this clause but mostly minuses. Here are a few:

  • Insurance companies who insist on this clause as part of an overall workers' compensation settlement do not want the worker to talk about the settlement to any other worker still working at the company;
  • The insurance companies have no problem on their end remaining silent as to the terms of a settlement.
  • If the worker breaches the terms of a confidentiality agreement, the worker could be required to return the settlement funds;
  • If the terms of the confidentiality agreement require strict silence for years, this term could be unenforceable as too vague;
  • The worker may demand his/her right to speak publicly and freely after a settlement and may not want to agree to any confidentiality agreement whatsoever.

If my client is “dead set” against signing the settlement papers when it includes a confidentiality agreement clause, we have gone back to the insurance company and informed them that since this is the introduction of another term to the settlement agreement, we want more money to sign it. I have had mixed results with this tactic.

Even where settlements are confidential, parties will often agree that the term of settlement can be disclosed to accountants, financial advisors or other attorneys in allied matters in the future.