I got a call from a potential client who lives and works in Covington, Georgia. It is about an hour's drive from Atlanta. She said she had a lawyer but fired him because he didn't care about and didn't spend any time on her case.
This lady worked in a manufacturing company and made good money. She described a lifting and twisting incident that caused her immediate low back pain.
I decided to go meet her because she said she had an MRI which showed a very serious disc herniation. She said she was not able to work and was not receiving weekly workers' compensation benefits. That sounded a bit unusual.
Covington is a quaint old city. It has a lot of Civil War relics in its town square. On the day that I arrived a film company was shooting a movie in the downtown area. The place was thick with activity and it was rather exciting to be downtown. I could not find any Hollywood stars, but I certainly tightened my tie and tucked my shirt in extra carefully, just in case they were looking for an extra on the set. Unfortunately, that didn't happen.
I met my client one block off the central park of Covington in a lawyer's office that was designated a National Historic Site. As I entered, the floors creaked. The floor was made from wide oak beams and I could smell the aroma of history as it emanated from the walls.
I entered the conference room and found my client waiting there for me. We will call her Billie-Jean so as not to disclose her identity or violate attorney-client privilege. She told me that right after she had this lifting/twisting incident, she went home and as she was getting into the bathtub to take a warm bath, hoping it would ease her muscle spasms, she slipped, but did not fall, causing a sudden jerk to her back. She said it caused more pain.
As a loyal employee of 18 years, she told her human resource department of both incidents. The employer told her to go to her personal doctor because she hurt herself off the job but sent her to Concentra for the job injury she sustained as well.
Concentra ordered the MRI which showed a herniated disc in her low back. The workers' compensation insurance company had an adjuster call her and this is where the case goes south. She told the adjuster that she had NO PRIOR low back injuries or medical problems with her low back whatsoever. She did say that she had a prior hip replacement years ago and that she had some residual problems from that hip surgery, but not many. She gave her deposition, (which is a sworn testimony) and said again that she had no prior back problems.
I wrote to every doctor that I knew of with whom she had some type of treatment, including her family doctor. Unfortunately, there were three or four facilities, including her Page 2 of 3 family doctor, who stated that she came to see those facilities for treatment of her low back pain years prior to her job injury and other times that were close to the time of her job injury I was to help her with.
The insurance company sent her to a notorious insurance doctor who was extremely thorough. He pulled from her this entire history of all her prior back treatment, but first asked her if she had any prior back pain. She denied to this doctor that she had any prior back pain and said it was only hip pain.
The medical records did not agree with her. She clearly had numerous incidents of prior low back problems, but she denied having these low back problems to every doctor and even to the claims adjuster and in her deposition.
You would say “it's not fair”, that just because she had some prior problems, she still put in 18 good years of work with this manufacturing company doing her job every day and losing virtually no time from work. Then when she had an actual job injury, Georgia Law would call it an exacerbation of a pre-existing condition, which is completely and totally legal and the way many of my clients end up out of work. The job accident made worse a prior condition. It is logical that this happens because workers are expected to return to work and they do. When they return to work, they sometimes have additional injuries, and that is why the law protects them.
What is the difference in this case? The difference is that this person lied about her history of prior medical problems regarding her low back. When you deny that these prior problems exist, and then it can be shown that they do exist through retrieving older medical records, and it is right there in the medical records, then the insurance folks gleefully argue that my client is a liar. NO judge will ever award benefits to a person who lies.
Credibility, credibility, credibility. Those are the three most important words in a workers' compensation case. If you are not credible, you will not win your case. If you are credible then the judge should understand that you have had prior problems, but you must admit that you have had prior problems. This lady told her first lawyer that she had no prior problems, and then kept telling that same story after she fired him and hired me.
So, what did I do? I terminated my relationship with the client, gave her back her file, and told her that she was responsible for the $1,100 in expenses that I had paid in her case to get her an MRI and current medical records to show causation. It is truly unfortunate that a decent person will now go without weekly compensation benefits or appropriate medical care solely because she decided, without inquiring of her lawyer, how she should address her prior medical problems.
Lawyers are resource people. We counsel people. We give advice to people. Our advice is based upon the law and facts. We should also encourage all who we speak with to tell the complete truth. Had I been her first lawyer, I would have told her to tell everyone that she Page 3 of 3 has had multiple prior problems over the last ten years, but that she also she kept working until this last incident which has caused her disabling pain and a rather large disc herniation in her low back. I was not given that opportunity. She will have a problem for years to come and may not have an appropriate solution. Did the slip in the bathtub (without a fall) cause her herniated disk problem? Probably not. That is for the judge to decide, but if she told the truth about her medical past, we would have had a much better chance to win.
In the meantime, the insurance company and their lawyer raised their glasses of champagne and had a toast to a lady that they call a “fraud.” That is not right but it happens more than we would want to know, only because of the misconception that you must have an unblemished medical history with no incidents whatsoever of injury if you have a subsequent major job accident. That is not correct. “And now you know… The rest of the story.” Come and tell me all of the truth and I can probably help you.
–THOMAS F. BROWN, II