Generally the best time to settle your case is when significant uncertainty remains regarding your future medical and lost wage eligibility.  Remember – insurance companies are in the business of risk management.  If we can show them that your future medical costs could soar into the tens of thousand and that  your return to full duty work could be far into the future, they will be more likely to offer more money to eliminate that risk.

I tell my clients that identifying that “sweet spot” is more art than science.  Sometimes a single line in a medical record, or a brief comment from my client will tell me that we are entering the zone where my client’s medical condition is stabilizing but enough unknowns remain for me to put forth a settlement demand that will result in a fair and generous settlement.

If you did not realize this already, understand that privacy in the United States is pretty much dead.  If you participate in social media like:

• Facebook
• My Space
• Yelp
• Tumblr
• Wordress (blogging)
• Blogger
• Pinterest
• YouTube
• Twitter
• and many more

information about your life can be available to anyone who is looking.  And you can bet that insurance adjusters and insurance defense lawyers are looking.   While private eye surveillance is still used, insurance defense adjusters also run searches for you on various social media platforms.  If they see you running, jumping, lifting or doing anything inconsistent with your claimed injury, they will use that video, photograph or post as grounds to cut off your benefits.

A colleague of mine tells the story of a client of his who decided to video her son’s high school wrestling match and thereafter uploaded to YouTube.  At one point the video shows the claimant climbing bleachers, then jumping  up and down to cheer her son.  Unfortunately this woman was asserting a job injury to her hips and lower back that she claimed was disabling.  When confronted with the video, she insisted that the wrestling match was a one-time event and that she ended up in bed for a week thereafter.  The workers’ compensation judge did not accept this argument and upheld the insurance company’s termination of benefits.  A case that could have settled for $50,000 to $75,000 ended up settling for nuisance value of less than $5,000.

Don’t let this happen to you.  If you are pursuing Georgia workers’ compensation benefits, close or suspend your social media activities until your case is over.

The problem, of course, is that delays in needed tests, or delays in needed treatment can result in permanent injury to you.  Further, if a panel doctor returns you to work and you are unable to perform your duties, you are likely to be fired putting you in a difficult financial situation and psychologically deterring you from pursuing your rightful benefits.

In this video I discuss a case where the authorized doctor flat out ignored his own physical therapist’s conclusions about my client’s very limited use of her arms, and issued a full duty return to work.  I won’t let the insurer get away with this, of course, but I wanted you to see how broken the workers’ compensation medical system has become.  I’d be willing to bet that this doctor knows that he was not living up to his oath to offer full and complete treatment to his patients, but his interest in making money and seeing those referrals seems to override his conscience.

the insurance company has 21 days after the date of your first missed day from work to issue your first lost wage check.  You do not count your last day of work in this calculation

• you will not receive payment for the first 7 days of missed work unless you miss 21 consecutive days
• once you miss 21 consecutive days, the insurance company must pay you for the first 7 days of missed work
• if you do not miss 21 consecutive days, you should receive 2 weeks’ worth of benefits by day 21 after your first day of missed work

Confused?  You are not alone.  The law seeks to balance the needs of workers for money to pay their bills and the needs of the insurance company to conduct its investigation and set up a payment schedule.  Personally, I think that an employee’s suffering when he is hurt and broke for 3 weeks outweighs an inconvenience to an insurance company, but this is the law as it exists currently.

I hope you also see the importance of timing in your workers’ compensation case.  It is no mistake that company doctors will try to return you to work before 21 days elapses.  In fact, efforts by insurance companies to put my clients back to work too early results in a lot of conflict in workers’ compensation cases.  If you are not careful, the insurance company can use its control over your medical treatment to manipulate your rights to lost wage payments.

You may sense that the workers’ compensation insurance company does not have your best interests at heart.   Please do not hesitate to call me if you want to discuss this – I can be reached at 770-351-0801.

Assuming that your claim has been accepted and you are not currently working, your employer’s insurance company must pay your weekly benefit checks on time.

Your first weekly benefit check must be mailed on day 21 after the accident if that check is mailed within Georgia, and it must mailed on the 18th day after the accident if it is mailed from an address outside the state of Georgia.  The day of the accident does not count when calculating dates.

Subsequent checks mailed from within Georgia must be postmarked as of the last day of the week (i.e. Saturday) in order for payment to be considered timely.

Subsequent checks mailed from outside of Georgia must be postmarked by the Thursday of the week it is due in order for the payment to be considered timely.

Checks Not Mailed on Time

If your check is not mailed on time, one of two late penalties apply.  If you are receiving weekly benefits because an administrative law judge at the State Board of Workers’ Compensation ordered the insurance company to pay you benefits, then you are entitled to a 20% late penalty on all benefits that are not timely mailed.  This means the insurance company must pay your full weekly benefit plus an additional 20%.

If you are receiving weekly benefits because the insurance company voluntarily started paying you, without an order from the Board, then you are entitled to a late penalty of 15% on all benefits that are not timely paid.  These penalties are automatic and an order from the Board is not necessary for them to be paid.

Late payment of weekly TTD (temporary total disability benefits) checks happens frequently and I am regularly on the phone with insurance adjustors trying to get my clients’ checks mailed.  If your checks are not getting to you on time, I’d be happy to help you – please call my office at 770-351-0801.

In 1990, the Georgia legislature gave injured workers an important new right, the “claimant’s IME (independent medical exam).  Under this law, an injured worker can request an independent medical examination with a doctor of his choosing, paid for by the employer’s insurance company.

When properly used as part of a effective claim strategy, your claimant’s IME can be used to:

• refute the unfair and biased claim of industrial clinic doctors
• contest a premature return to work demand by the insurance adjuster
• support a request for a change in authorized treating physician
• support a reasonable settlement demand

However, as important and valuable as your claimant’s IME rights may be, this right is not open ended and it can be wasted if not used properly.

Specifically, I am referring to situations in which you may have injuries to multiple body parts and you are receiving treatment from several different doctors.   Recently, for example I represented a young man who had fallen almost 4 stories from a building, causing injury to his spine, a broken leg and a closed head injury.   In this case, I felt that the orthopedic doctor treating the leg and back injury, and the neurologist treating the closed head injury were not providing the level of treatment appropriate for the degree of injury.

Unfortunately, Georgia law does not provide for more than one claimant’s IME, even when multiple body parts are affected.   Therefore, I had to choose between an orthopedist and a neurologist for the claimant’s IME.  In this particular case I chose to request an orthopedic IME because I felt that my client had a more immediate need for back care and because I felt that I would have opportunity later to challenge the opinion of treating neurologist.

The points to remember about the claimant’s IME:

• be very careful about choosing to use this right – you will have one and only one opportunity to demand an insurer paid independent medical exam.  Knowing when to assert this right and knowing who to choose to perform this exam are crucial factors
• if you have injury to more than one body part, you only get one IME
• the insurance adjuster is not an appropriate resource to advise you about how and when to assert your IME rights

If you have questions about your claimant’s Independent Medical Exam rights, please do not hesitate to call me at 770-351-0801 begin_of_the_skype_highlighting 770-351-0801 end_of_the_skype_highlighting or email me.   Please also feel free to post a comment on my blog.

• bathing
• dressing
• meal preparation
• driving
• cleaning

Given that hospitals often release patients home as soon as possible, I see more and more instances where my clients recover mostly at home, with outpatient visits to rehab.

Under Georgia law (Georgia Code Section 34-9-200(a)), the employer/insurer must provide care that “shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.”   In the case of Medical Office Management v. Hardee, the Georgia Court of Appeals held that:

There is no express prohibition in the Workers’ Compensation Act against the recovery by an employee of attendant care services provided by a family member, including a spouse. Nor does the employer show that a family member cannot provide attendant home care under the Board’s rules and regulations…

The employer had argued against this “spousal reimbursement” on the grounds that the spouse was performing tasks he/she would do otherwise.   The Georgia Court of Appeals, as you can see, ruled otherwise, and permitted Ms. Hardee’s husband to collect a fee under the State Board fee schedule for attendant services.

What does this mean to you?

• First, do not expect your employer or its insurance company to offer to pay your spouse or significant other for attendant care.   Many insurance adjusters are not aware of the Hardee case and even some who are will tell you (incorrectly) that your spouse cannot collect.
• Second, it helps tremendously to have your authorized treating physician note the need for attendant care.  In my experience it sometimes is necessary to have the doctor write a letter specifically setting out the requirement for attendant care.
• Third, non-medical attendants like spouses or family members can get paid based on the State Board’s fee schedule, which sets a specific hourly rate and other limits
• Fourth, insurance companies will look for ways to avoid paying an injured workers’ spouse.  At a minimum, your spouse must have the physical and mental capacity to care for you.   You should seek legal counsel before submitting a request for spousal reimbursement.

If you would like to know more about spousal attendant care, please call me at 770-351-0801or send me an email.

I sometimes receive calls from injured workers who are receiving weekly wage benefits as well as medical care, who wonder why they should hire counsel if everything “seems to be working out okay.”  Sometimes they sense that something is not quite right but are wary of rocking the boat.

Know Your Doctor’s Reputation

I respond that one of the most valuable services I offer my clients has to do with my knowledge of and opinions about the medical providers that accept workers’ compensation referrals in Georgia.  After 20+ years of practice in this area of law, I have seen or know about the biases and quality of work offered by most of these doctors. Having worked as an insurance defense lawyer for several years at the beginning of my career, I can quickly identify an insurance company strategy to close out your case without addressing your medical needs or paying you a fair and necessary settlement.

Often the first indication you may have that something is not quite right may be a biased medical report.  Sometimes you sense the bias right away – when you visit an “industrial clinic” with an uncaring, assembly-line approach to medicine.  Sometimes the doctor you visit seems pleasant and caring, but you are stunned to read his report that minimizes your complaints, misstates your words, suggests that you are exaggerating your symptoms and releases you back to work far too soon.

Most of us are brought up to respect physicians and to defer to their opinions.  I am here to tell you that this type of blind deference is a major mistake in a workers’ compensation case.  You – or me as your representative – must advocate and advocate aggressively for your medical care.

Options if Your Workers’ Compensation Medical Care is Substandard

We have several options if we suspect that the posted panel doctor who is treating you is biased and unfair.

One Free Switch

First, under the Georgia workers’ comp. statute, we are allowed “one free switch” from one panel doctor to another.  Assuming that your employer’s posted panel is valid, you have the right to change doctors one time without explaining why.  In my experience, the quality of physicians on a posted panel can vary widely – sometimes switching from the industrial clinic doctor to a more independent physician can make a significant difference in your case.

Invalid Posted Panel

Second, we may discover that your employer’s posted panel is invalid.  I have written about the requirements for a valid posted panel of physicians elsewhere but if the panel if not valid, then you may have the right to seek company paid care with any doctor we choose, including quality health care providers that I know from other cases.

Along these same lines, Georgia law requires that posted panels contain the name of at least one orthopedist.  I regularly see panels of doctors that contain multiple names and thus appear to be valid, but do not contain the name of an orthopedist.  The absence of an orthopedist may very well invalidate the panel and give us control of your medical care.

Claimant’s IME

Third, under Georgia law, you as the injured employee can demand you “employee’s independent medical exam” (also known as the “claimant’s IME”).  This relatively recent change to the workers’ compensation law allows employees to choose a physician to conduct an evaluation that must be paid for by the employer/insurer.  While you will not get treatment at a claimant’s IME, the resulting report can be helpful evidence in your case and can support an effort to change the authorized treating physician.

Petition State Board for Change in Authorized Treating Physician

Finally, injured workers have the right to petition a judge at the Georgia State Board of Workers’ Compensation to order a change in the authorized treating physician.  In my practice I often find that I can negotiate a change in treating physician with the insurance adjuster.  If I see that your current doctor is not doing you any good or if I know that doctor to be biased in favor of the insurance company, then I will call the adjuster and arrange for a change.  If the adjuster will not work with me, then I request a hearing on the issue – although I rarely have to take such issues to court.

I hope you can see from this brief discussion that you do have many options if your current workers’ compensation authorized doctor is either not providing you with quality care or if that doctor is biased in favor of the insurance company.  I encourage you to tap into my knowledge and experience with workers’ compensation medical providers in Georgia.  Call me at 770-351-0801 or email me.  I look forward to hearing from you soon.

Issues arise when the nurse case manager tries to influence your doctor about signing off on a return to work release or suggesting to the doctor that he include in his reports statements which say that your pain has subsided and that you are doing better.  Some nurse case managers even try to influence the drug prescriptions written by the doctor.  Others appear at each one of your appointments and try to stay in the room when your doctor examines you.  You have the absolute right, by the way, to insist that your nurse case manager step outside during your examination and conversations with your doctor.

Other issues arise when the insurance adjuster uses the presence of the nurse case manager to damage the injured claimant’s claim and to improperly influence medical treatment.

While I have seen instances where the nurse case manager truly cares about the health and welfare of the injured worker, more often than not the nurse case manager serves as the eyes and the ears of the insurance adjuster, with the primary goal of minimizing cost and to the insurance company.

I generally take a very cautious view towards nurse case managers and I will not hesitate to demand their removal from your case, as Georgia law allows a claimant and his attorney to reject the participation of a nurse case manager. I would, for example, most likely terminate the participation of a nurse case manager who wanted to stay the room during my client’s examination with his doctor.

Case Study: Insurance Adjuster Attempts to Use Nurse Case Manger Improperly

Recently, I represented an injury worker in a case (which we have now settled) where the insurance adjuster hired a nurse case manager because my client’s injury was complicated and because the injured worker decided to move from Georgia to another state.  Because of these factors and because my client needed specialty care, I agreed to the participation of a nurse case manager for the purpose of coordinating doctor’s appointments out of state, and to help arrange for physical therapy and rehabilitation.

As permitted by Georgia law, I asked the adjuster for copies of the nurse case manager’s notes as well as the memos and letters issued by the adjuster to the nurse case manager.   Here is the actual text of a memo written by the adjuster to the nurse case manager:

Nurse X…” our main concern is to have the claimant undergo the surgery, if Dr A agrees that it is indicated, and to get her released to full duty and maximum medical improvement status ASAP. We are continuing to pay her temporary total disability benefits. Please note she is represented by an attorney.  If you receive any requests for Attorney Ginsberg, do not comply but forward the request to me for approval. I would ask that you send your status reports  directly to me only and I will determine what information should be forwarded to (injured workers) attorney.

As you can see from this memo, the adjuster is telling the nurse case manager not to cooperate with me and that the adjuster intends to withhold information from me!

The nurse case manager (to her credit) responded to the adjuster and advised the adjuster that Georgia law obligated her to cooperate with me.  Here is what the adjuster said next:

I am aware of the statutory requirements in Georgia and I do not have a problem with your complying [with the law] in providing Attorney Ginsberg with all correspondence.  What I do not is any ex parte communications with Attorney Ginsberg. I want a copy of ALL emails, faxes and letters to her. I have had a problem with Attorney Ginsberg in the past with her over involvement with this claim and her attempts to direct  how this claim is managed.

Now, we have the adjuster continuing her improper and unethical behavior by re-stating that the nurse case manager should not respond to correspondence directly from me.

Once I saw these memos, I immediately wrote the adjuster to advise him in no uncertain terms that his actions in trying to deny me access to the nurse case manager’s notes was improper under Georgia workers’ compensation law.   I also advised the adjuster that if this case went to a hearing, I intended to put him on the stand to explain his actions to a workers’  compensation judge.

After receiving my email the adjuster did not respond to me but turned this case over to an insurance company lawyer.   The lawyer cooperated fully with me and agreed to a very favorable settlement, which I suspect had something to do with my discovery the illegal actions of the adjuster.

This kind of nonsense goes on all the time and if you or your attorney is not paying attention you will find yourself at a disadvantage in terms of access to medical and other case records.  I will, by the way, take as a compliment the adjuster’s complaints about me and my efforts to “control” the management of my client’s claim.  Georgia workers’ compensation is an adversarial system and I will not allow an insurance adjuster (or a nurse case manager) to get away with anything that damages my client’s case.

I often get these cases four to six weeks later when the injured worker finds himself unable to work because of severe back pain and limited mobility.   In some instances the injured worker faces pressure and even harassment from his employer due to his decreased productivity, and when I get the case, the employer/insurer may try to argue that any serious injury to the employee may have happened at home instead of at work.

Recently I represented a very nice young man in a back injury case that clearly demonstrates why X-rays are insufficient to evaluate back pain.

My client is a 31 year old man whose job involved installing and reinstalling fence posts.  Starting at 8 AM, my client, using a sledge hammer, loosened fence posts by breaking up their cement foundations, cleaned the post base, then reinstalle the post with fresh cement.  Beside using the sledge hammer, my client had to carry heavy buckets of cement and pour them in to holes in the ground.

By 2 PM that day, my client felt a “pop” in his back when he tried to lift the sledge hammer and he felt radiating pain in both legs.  He reported the injury to his supervisor, who referred him to an industrial clinic.  The clinic doctor took X-rays which described “mild disc space narrowing at L4-5″ but no other impairment.

The clinic doctor did put my client on “no work” status, where he remained for two months.  However, during that two months, the employer/insurer did not start his weekly wage benefits (although they did authorize on-going medical care at the industrial clinic).

After two months of suffering intense pain and no weekly wage benefits, my client called me and hired my firm.  I immediately contacted the adjuster and demanded that the employer/insurer commence weekly wage benefits – my client got a check for past due benefits plus a penalty payment arising from the employer’s late payment of those benefits.

Next, I contacted the adjuster to demand better medical care.  The adjuster and I agreed on a more neutral doctor and we agreed that an MRI was necessary to properly evaluate my client’s ongoing back pain.

As I expected, the MRI showed significant damage to my client’s lower back.   Specifically, the MRI revealed:

• a central disc herniation at L3-4 and L4-5 with narrowing of signal canal and mass effect on thecal sac;
• bilateral neural foraminal narrowing  at L4-5 and on the left at L5-S1
• disc dessication at L3-4 and L4-5

My client was subsequently scheduled for surgery and is now recuperating.  Click on the link to view the actual X-ray report and the MRI report:

1. First, the employer/insurer was not looking out for my client’s best interest.  They were satisfied with the somewhat irrelevant X-ray result and would have been happy if my client has just gone away.   MRIs and CT scans are a lot more expensive than X-rays but that is what should have been ordered in this case.
2. Second, even though the employer/insurer authorized industrial clinic treatment and pain medication, they did not start weekly wage benefits.  Why?  I have no idea.  My client was on a “no work” status from one of their doctors but they just did not pay weekly wage benefits.  Perhaps the adjuster messed up or perhaps they were hoping my client would never notice.
3. Third, you have to be your own advocate and/or hire an advocate like me to represent your interests.  My client has no formal medical training but he knew instinctively that something was seriously wrong with his back despite what the X-ray said.   X-rays are not designed to show soft tissue (nerve and/or disc material) damage.  Further, the longer a spinal nerve is compressed the more likely that the patient will suffer permanent damage.  Hopefully, my client will not experience any permanent damage, but I know that he suffered two weeks of unnecessary pain because the employer/insurer was looking for the least expensive option.