Most of us are brought up to think that a doctor is a doctor and that there must be some law or rule which says that your doctor’s first priority is your health and well being.  In the reality of the workers’ compensation system, many of the doctors you will encounter assume that all injured claimants are most likely exaggerating or even faking their symptoms and will base their treatment decisions on this often false assumption.

I recently attended a continuing legal education seminar where one of the speakers related a story about an insurance company IME that illustrates what many claimants face.  In this case, a long time employee of a company injured his right knee when he fell off a loading dock.  The employer/insurer picked up the claim and paid benefits.  Medically, however, his condition did not improve with rest, physical therapy or injections.

The injured employee’s lawyer made use of his claimant’s IME to seek a second opinion and the IME doctor diagnosed a ligament tear that would require surgery and extensive rehabilitation.

The insurance company instructed their lawyer to fight the claim.  The insurance company sent the claimant to its own IME and the report from this IME came back that the employee may have ligament damage but that this damage most likely arose from a prior knee injury.

The injured worker insisted to his lawyer that there was no prior knee injury – either at work or on his own time.

In preparation for a hearing the claimant’s attorney requested medical records from the employer/insurer and he requested medical records from the insurance company IME doctor.   The insurance IME doctor’s records contained a letter from the insurance company lawyer to the doctor ordering the evaluation and stating that the insurance company had strong suspicion that the claimant had a pre-existing knee injury and that the insurance company was expecting medical records from other doctors confirming this.

At the same time the insurance company lawyer sent dozens of requests to internists and orthopedists who practiced within a 15 miles of where the claimant lived.  None of these requests resulted in any evidence because there was none.

The claimant’s lawyer then deposed the insurance IME doctor and asked him why he concluded that the claimant had a pre-existing injury.  The IME doctor responded that this information “was in the claimant’s medical history.”

The “history” he was referring to, of course, was the letter from the insurance company lawyer.

The claimant’s lawyer then asked the IME doctor if there was no history of a prior injury, would there be any reason to suspect that the current injury was not the source of the claimant’s pain and limitation of movement.  In the absence of any history, the IME doctor opined, there would be no reason to believe that this work injury was not the source of the claimant’s problems.

After this deposition the insurance company backed down and approved the needed knee surgery.

While the claimant did get an appropriate remedy (after several stressful weeks), I hope you can see what went on here:

• the insurance company attorney used its special relationship with the IME doctor to subtly manipulate the record
• the insurance company doctor took at face value the uncorroborated suggestion by the defense lawyer that the claimant had pre-existing problems
• defense counsel sent out dozens of letters to local doctors fishing for damaging information about the claimant (so much for privacy considerations)
• the claimant’s attorney did a very good job by using the discovery process to get a copy of the insurance company’s file, and of the IME doctor’s file
• the insurance company file did not include correspondence from the defense counsel to the IME doctor or to the medical community
• the claimant’s attorney sensed that something was not there that should have been there and he found the “smoking gun”
• this claimant might very well have been denied necessary and appropriate knee surgery but for the good work of his lawyer

If you have questions about workers compensation law in Georgia, please call me at 770-351-0801 or email me by clicking on the link.

The post Independent Medical Examinations Ordered by Insurance Companies Rarely Unbiased appeared first on Atlanta Workers' Compensation.

• disagreement about which doctor should be authorized as a treating physician
• whether the insurance company’s termination of benefits is appropriate
• delays by the insurance company in sending out checks and penalties that may be appropriate

In the past, if I found myself in disagreement with the insurance adjuster or defense counsel,  my only recourse was to request a hearing.   The problem with this option has to do with timing – the State Board dockets are full and it may take weeks or even months to get a hearing scheduled.  Further, my hearing request would likely trigger depositions, motions to produce and other costly and time consuming procedures.

Fortunately, State Board judges are increasingly open to helping the parties resolve these disputes in brief conference calls that can be scheduled in a few days or weeks rather than full blown hearings.  Conference calls are not appropriate for every type of dispute but I have found them to be indispensable when I need to “encourage” the insurance company to speed up their payment processes, or to approve an emergency medical procedure.  In this video I discuss how these conference calls work and when I use them.

Speeding Up the Process with a Conference Call to the Judge on my Vimeo law channel.

The post Speeding Up the Process with a Conference Call to the Judge appeared first on Atlanta Workers' Compensation.

Over the years I have reviewed thousands of pages of treatment records and been involved in several thousand cases and I can tell you that medical care relies to a great extent on the judgment of the treating physician.  If you experience a severe back injury, for example, physician A may prescribe 6 weeks of physical therapy, followed by a series of 3 epidural injections, followed by minimally invasive diskectomy to trim protruding disc material.  Physician B may order epidural blocks right away, followed up by a much more extensive fusion surgery.  Physician C may make the determination that you are not a surgical candidate at all and refer you to long term pain management.

Each of these options involves both a short term and a long term cost and risk to the insurance company.  As your attorney, I am focused on which treatment option will give you the best chance at long term health – both freedom from pain and maximum return to physical capacity.  I am your advocate and the cost of treatment is not my concern.

The insurance company is focused on keeping its costs in check.

The physician who relies on the insurance company for business has an ethical and professional obligation to help his patient but will feel pressure to choose treatment options that may not be entirely focused on your heath.

I am sure you can see the built-in conflict that arises in just about every workers comp. case.

So when potential clients ask me why they should retain me, I explain that I can offer guidance about both the treatment options which might apply in a particular case as well as an opinion about the physician providing the treatment.

But mostly, I see my role as serving as your advocate and to look out for your interests and to resist efforts by the insurance company to limit your treatment for their financial benefit.

If you have concerns about medical care you are receiving, please call me – my direct number is 770-351-0801.

The post Medical Care in Your Workers’ Comp Case: Why I Never Relax appeared first on Atlanta Workers' Compensation.

As I have discussed extensively on my web site, employers subject to the jurisdiction of the Georgia State Board of Workers Compensation are required to post a list of physicians at an accessible place on the work site, and they are required to explain to workers how to report injuries and obtain medical care from a panel doctor.

Georgia law at Code Section 34-9-201 sets out very specific requirements for what constitutes a valid panel of physicians.  With limited exception, a valid posted panel must include at least 6 unaffiliated physicians, at least one of whom must be an orthopedist, and no more than 2 of which may be industrial clinics.

If the panel is not valid, the injured employee may choose any physician to serve as the authorized treating physician and the employer must pay for medical care provided unless and until the State Board orders otherwise.

Given the adversarial nature of the workers’ compensation system in Georgia and the anti-claimant biases displayed by many panel physicians, a failed panel can serve the interests of you, the injured claimant, by giving you control of your medical care.

Often, my clients advise me that when they are hurt, their human resources supervisor shoves a panel in their face and tells them to “choose a doctor.”  What I am finding, however, is that many of these posted panels are not valid because the physicians listed on the panels have moved, changed phone numbers, retired, or joined the practice of another panel physician.

Given that almost everyone has a cell phone with a camera, I advise my clients to photograph (or photocopy) the posted panel for me to review.  On more than one occasion, I am finding that my clients’ posted panels are invalid, and that at the very least I can use that argument to negotiate for a more independent and reasonable physician.

• As a rule, you are going to be much happier with the treatment provided by a doctor who does not depend on an insurance company for his business.
• It does not matter, by the way, if your employer fixes the panel after you accident – what is relevant is the state of the panel as of the minute you get hurt.

If you have been hurt on the job and want me to review the posted panel that your employer has shown you, please call me

The post Don’t Take that Posted Panel at Face Value appeared first on Atlanta Workers' Compensation.

This was the issue that arose when an employer sought to terminate benefits on the grounds that temporary total disability benefits should only be payable to an employee who intends to be active in the workforce.

This issue was litigated in a case called Thomaston Mills v. Kierbow which involved a claim by a woman who was awarded benefits due to a work related knee injury.  At the time of her injury, Ms. Kierbow was 68 years old and following several years of painful treatment, she let her doctor know that he planned on retiring regardless of the outcome of her case.

The insurance adjuster representing Thomaston Mills then filed papers to cut off Ms. Kiebbow’s temporary total disability benefits on the grounds that workers’ compensation benefits should only be payable to a worker who has not yet reached the end of her employment life.

After several levels of appeal, the case ended up at the Georgia Court of Appeals, which held in favor of the claimant, Ms. Kierbow.  The appellate court noted that nothing in the statute suggests or states that a claimant’s right to collect temporary total disability benefits stops at the end of a person’s work life.   Further, there is no way to objectively determine when a person’s work life ends.   The Court went on to say:

[I]t would be virtually impossible to evaluate an intention to retire under this type of analysis because the decision to retire from the work force is not made in a vacuum. It would be the product of many factors, including but not limited to age, health, and financial status, and, as in this case, any health considerations in retirement would, at least in part if not entirely, stem from the work-related injury.

If I was advising an older client, I would advise that client to say nothing about his future intentions.  Workers compensation is a very adversarial system and even an innocent remark like “I am planning on retiring” could give the employer/insurer ammunition to try to cut off a claim.

When communicating with an employer or an insurance adjuster I advise my clients to limit their talk to only the issues at hand – what happened in the accident and what parts of the body were injured.  The insurance adjuster is not your friend and anything you say can be used against you.

The post Can I Collect TTD Benefits If I Intend to Retire Anyway? appeared first on Atlanta Workers' Compensation.

In this case a factory worker finished his shift and decided to drive a forklift to the area where he would clock out for the day. In doing so, he crushed his foot against a pole. The problem: he was not certified to drive a forklift, nor was he permitted to drive one.

Worse, during his hearing, he testified that he knew he was not allowed to drive the forklift but did so because it was “fun to drive.”

The Pennsylvania workers compensation judge denied this workers claim and the denial was upheld by the Appeal Board and by a subsequent appellate court.

Obviously, we don’t have all the facts here but my guess is that the worker’s testimony that he drove a forklift because it was fun to drive sealed his fate.  Employees frequently get hurt performing actions for which they are not authorized but often their claims are accepted if those actions were intended to benefit the employer, but not if these actions are horseplay.  Sometimes there can be a fine line between the two.

Was this employee a nut job who was a danger to himself and others?  Or perhaps he was a sincere, long time employee who panicked when questioned about what he was doing.  We don’t know and a workers comp. judge probably will not take the time to find out.

Here, the injured employee clearly damaged his case by his choice of words.  It is unclear whether the “fun to drive” comment was made as part of a first report of injury or during hearing testimony but the lesson we can learn from this case is that an injured employee should speak to counsel before making any statements to his employer or to an insurance company.  Further, hearing testimony should be practiced prior to actual testimony.

Every word you utter to the employer/insurer will be scrutinized and can and will be used against you.   When you are asked to give a report of injury, you are likely to be nervous and in unfamiliar territory.  It is far better to let your lawyer speak for you and advise you how to word your responses.

If you have been injured on the job and are facing the prospect of a recorded statement, please don’t face the insurance company alone.  Call me at 770-351-0801 and I’ll be happy to discuss your case with you.

The post It is Better to Say Nothing than to Say Something Stupid appeared first on Atlanta Workers' Compensation.

Earlier this week I received a DVD showing surveillance of a client walking briskly, bending and carrying groceries, despite his assertions that his work-related knee injuries prevent him from using his legs for any type of normal activity.   I think I will be able to settle this case but there is no doubt that the value of the case will a lot less because of the surveillance video.  In this case, my client outsmarted himself by misleading me about his physical limitations such that we did not start our settlement negotiations back when his knee was still causing severe impairment.   My client wanted to keep collecting weekly benefit checks for as long as possible then settle – he would have been wise to tell me the truth about his improving capacity several months ago.

While I realize that anyone can have a “good day” and thus be able to perform physical activities that might be impossible on most days, you have to assume that your every move is being videotaped.

In this video I discuss a trend I am seeing – more use of surveillance by insurance company private detectives.  It may be hard to believe that someone is following you but I assure you – it happens.

Are you being watched by an insurance company? from Jonathan Ginsberg on Vimeo.

The post Insurance Adjusters Becoming More Aggressive in Using Surveillance appeared first on Atlanta Workers' Compensation.

Folks with a long tenure like this are almost always shocked and upset at the overnight change in attitude they get from co-workers and supervisors once it becomes known that the employee has been seriously injured and has filed a workers’ compensation claim.

I sense that some of my clients almost feel guilty about filing a workers compensation claim. In one case in particular a client of mine told me that his former supervisor has apparently been bad mouthing him to his former co-workers, implying that my client is “working the system” and is “looking for a big payday.” I could tell that my client was extremely upset to this attack on his reputation and he was clearly miserable.

Over the years I frequently need to take the time to counsel my clients about how to deal with this unexpected hostility from supervisors and especially from former co-workers. Workers compensation practice in Georgia has evolved into an extremely adversarial type of legal system. Employers hate workers compensation claims because even a relatively minor injury can result in increased premium costs.

Production supervisors hate claims because their shifts may be shorthanded and they will have to take the time to either train a replacement or adjust a work description to accommodate a light duty return to work.

Employers also badmouth claimants to send a not so subtle message that injured workers who file claims will be excommunicated from the tribe.

While the mix of emotions you may feel, including guilt, betrayal, sadness, and anger, is certainly legitimate, I would urge you to remember that at the end of the day your former boss, your former co-workers and the owner of your former company are most likely not planning on helping you write your mortgage payment, and they are not going to be there 5 years from now when your settlement money is long gone and you are trying to find a job that can accommodate your reduced physical capacity.

I would further suggest to you that when you file a workers’ comp. claim, the insurance company adjuster who will be opposing us will do everything in his or her power to minimize what they have to pay you and they will do everything they can to limit your visits to the doctor.

As your attorney, my role is to fight and scrap to get you necessary and effective medical care and to deny the insurance adjuster’s attempt to send you back to work prematurely.

The post Feelings of Betrayal Common in Workers Compensation Claims appeared first on Atlanta Workers' Compensation.

These issues may include, but are not limited to:

• problems obtaining authorization to treat with a panel or other authorized provider;
• problems obtaining medication prescribed by the authorized provider;
• authorization for diagnostic testing recommended by the authorized provider;
• unpaid medical bills;
• repeated instances of late TTD (lost wage) payments;
• repeated instances of late mileage reimbursement payments;
• accidental or improper suspension of benefits.

Conference call issues should not include matters that will require a presentation of testimony or evidence – such as a claimant’s request for change in treating physician (which would require us to present evidence that the current physician is not effectively treating you) or an employer’s request to terminate benefits on the basis of medical improvement.

I see the Board’s new policy as a needed step in the right direction that will help me in my representation of my clients.  Conference calls can be scheduled much faster than hearings and this type of informal dispute resolution should discourage insurance companies from using delays in the process to pressure financially struggling claimants to settle too early and for too little.

The purpose of the Board’s policy seems to be a desire to speed up the resolution of matters where there is no dispute but there is a problem of getting one side or the other to perform a certain duty.   The presiding judge, of course, can decide that a particular dispute does need a full evidentiary hearing but my hope is that these conference call dispute resolution sessions will speed up the process and reduce the delays when a full hearing is necessary.

The post Attorney Conference Calls Preferred Method to Resolve Many of Your Common Claim Disputes appeared first on Atlanta Workers' Compensation.

Georgia Code Section 34-9-17(b)(1) provides as follows:

(b) No compensation shall be allowed for an injury or death due to  intoxication by alcohol or being under the influence of marijuana or a controlled substance, except as may have been lawfully prescribed  by a physician for such employee and taken in accordance with such  prescription:

1) If the amount of alcohol in the employee’s blood within three hours of the time of the alleged  accident, as shown by chemical analysis of the employee’s blood, urine,  breath, or other bodily substance, is 0.08 grams or greater, there shall be a rebuttable presumption that the accident and injury or death were  caused by the consumption of alcohol;

Georgia law also addresses what happens if you refuse to submit to a blood alcohol test.  Georgia Code Section 34-9-17(b)(3) provides that if you refuse to submit to a “reliable, scientific test” of your blood, urine, breath or other bodily substance there shall be a “rebuttable presumption” that your injury was caused by your use of alcohol.

What does this mean to you?  If you have been drinking and you are shortly thereafter injured at work, your employer can demand that you submit to a blood alcohol test. If you are taken to the hospital it is also possible that blood will be drawn as matter of course and a blood alcohol level will appear in your medical records.  If that test comes back showing a .08 blood alcohol level or higher, your employer can lawfully refuse to pay your workers’ compensation claim.  .08 B.A.C., by the way, is the level of blood alcohol that would constitute a DUI for adults in the State of Georgia.

Do I Have any Options if my Blood Alcohol Level was Higher than .08?

Yes, you have options but you will be fighting an uphill battle.  First, note that the statute creates a “rebuttable presumption.”  This means that you do have the right to present evidence that your injury was not caused by your use of alcohol.  For example, if you are walking with a group of 5 others from one end of a warehouse to the other and a shelf of heavy boxes falls on the entire group, you could argue that your intoxication did not contribute in any way towards your injury.

Second, you could use the same defenses that DUI defendants use in battling.  In Georgia, and elsewhere in the country, for example, DUI defendants regularly challenge the accuracy of the Intoxilyzer 5000 blood alcohol testing equipment.  Machines like this are susceptible to challenges based on how they are maintained, or even about the source code, which does not differentiate between men and women or the height and weight of the person being tested.

Insurance Companies Often Challenge Claims When there is Evidence of Alcohol Use on the Job

Earlier, I noted that claims subject to challenges arising from alcohol use are “uphill battles.”  I say this because in my experience, insurance company adjustors and lawyers usually deny claims when there is a positive blood alcohol test and they fight these claims vigorously thereafter.  When these cases settle, they usually settle on a “no liability” basis that also includes a resignation.  A “no liability” stipulation means that the employer never “accepts” the claim, never pays wage benefits, never pays for medical care, but agrees to pay a lump sum to settle all claims.

If you know or suspect that a blood test will reveal the presence of alcohol, I urge you to let your lawyer know sooner rather than later.  This information will come out and your lawyer can better represent you if this defense is not a surprise.

The post Presence of Alcohol in Blood appeared first on Atlanta Workers' Compensation.