I was in Savannah, GA. attending a seminar at my employer’s request. On Thursday, 9/21/06, I slipped in the bathtub and suffered a spiral fracture of the fifth metatarsal bone in my left foot. As a result of that injury, I had to undergo a four-hour surgery on 10/11/06 to repair the fracture. I have not been able to return to work due to doctor’s orders. Last Friday I got a phone call from my supervisor who told me I was being terminated. Jodi Ginsberg responds: I am happy to speak with you about your case; your injury; rights to benefits; specialized medical care; potential lump sum settlment and reason for termination. I am curious why your employer called you to terminate you. Is it due to the time missed from your injury? Are you on TTD (temporary total disability) benefits while on the no work status? If so and there is no reason to fire you other than injury then this termination may actually help your case. If you are being terminated because of an on-the-job injury, you may be gaining additional leverage to obtain more weeks of TTD benefits, and perhaps a larger lump sum settlement. Assuming that your doctor releases you to either light duty or full duty work, the question becomes whether your employer has a job for you. If you have been terminated, this question is more difficult to answer and you can use this uncertainty to argue for a larger settlement. In addition, when you settle, your claims under the Americans With Disabilities Act might be part of the negotiations. As in any workers’ compensation case, timing and leverage are all important. Knowing when to push for settlement and knowing how to use the circumstances of termination for the benefit of our clients are part of what workers’ compensation lawyers like me do on a day to day basis. [tags] employee terminated after suffering on-the-job injury, workers compensation settlements [/tags]
Georgia Workers' Compensation
Company Doctor Will Not Help Me – Is There Anything I Can Do?
My question is that, I’ve been out hurt for a year and 3 months with a crushed heel. I’ve seen 2 workers comp doctors and just saw a independent doctor. The independent doctor said that he could heal me,and do surgery but the workers comp doctor disputes his opinion. Now the insurance company says that their not going to let me see him nor pay for the surgery. If the workers comp doctor would have x-rayed my foot he would’ve saw that its still broke but he hasn’t x-rayed it in 6months or hasn’t seen me in 3 months and refuses to give me anything for pain. Isn’t that refusing me treatment? Please give me some advise???
-John
Jodi Ginsberg responds: John, thanks for your question. I am going to assume that you are not yet represented. If you are, you should speak with your lawyer to discuss the reasons for the denial and what you can do about it.
There are a number of approaches I would consider in your case. First, I would evaluate whether you have a good argument to ask for a change in your authorized treating physician. If you are not getting better and the independent medical exam doctor states that surgery is indicated, I think that the State Board would consider a request for change in treating physician. The law provides for such a change if the current doctor demonstrates a “failure to effect a cure or give relief.”
I would also discuss with you whether you might consider a settlement of your claim. Sometimes, when there is uncertainty in a claim (differing opinions by the doctors), you have an opportunity to maximize your settlement dollars since the insurance company faces an unknown risk in future surgeries and wage benefits. Settlement would only be appropriate if you feel comfortable that you could pursue medical treatment on your own and are prepared to assume that risk.
Medicare Set Aside Explained
North Carolina trial lawyer Chris Nichols has written a very useful description of how the Medicare Set Aside rules work in workers’ compensation cases. He also notes that federal law also permits Medicare to pursue Set Asides in liability cases (although Medicare has not yet done this).
Chris describes the concept of a Set Aside as follows:
The concept of the law is that Medicare is a "secondary payer" when any other form of insurance exists to pay claims. Before 2001, that meant traditional health insurance, but starting in 2001 Medicare began to interpret that to mean that even third party insurance, specifically Worker’s compensation settlements that "cut off" future medical benefits (clinchers), would be subject to the Medicare Secondary Payer regulations. This meant that any Workers Compensation clincher that resaonably cut off future workers compensation benefits would have to be reviewed by CMS to determine if there should be an MSA "allocation." Accordingly, Medicare would look at the case and decide what the future medical costs for the injury would be. The future costs would be placed in a MSA trust for the payment of medical services related to that claim.
We frequently have to deal with Medicare in large settlements, and often the Set Aside negotiations can add time and aggrevation to a settlement. However, Medicare Set Asides are often a fact of life that we must be aware of prior to entering settlement negotiations.
[tags] Medicare Set Aside, Medicare Secondary Payer, Georgia Workers’ Compensation, Workers compensation settlements, Medicare lien [/tags]
New Job Injury Triggers Related Medical Problems – What is Compensable?
North Carolina workers’ compensation lawyer Dan Deuterman recently wrote about one of his cases, Clark vs. WalMart, that ended up in the North Carolina Supreme Court. Although the Clark case arose under North Carolina law, there are implications for Georgia workers’ compensation claimants.
Mrs. Clark, a 64 year old lady, worked as a greeter at WalMart. She injured herself while attempting to move a decorative sled while standing on a 10 foot ladder. Ms. Clark had previously been diagnosed with osteoporosis. After initially accepting the claim, WalMart cut Ms. Clark off, arguing that Ms. Clark was not entitled to presume that her on-going back pain was solely the result of her job injury given the pre-existing osteoporosis.
The North Carolina Supreme Court agreed with WalMart that Ms. Clark, as the injured employee, had the burden of proving that her on-going disability arose from her job injury and remanded the case back to the North Carolina Industrial Commission (which is roughly equivalent to the Georgia State Board of Workers’ Compensation). The Industrial Commission ruled that Ms. Clark was permanently disabled and that WalMart had to pay for her medical care, including spine care associated with osteoporosis.
This case highlights an issue that we often see here in Georgia. Often our client’s work injury is not the only medical problem afflicting him or her. Sometimes, our client has a pre-existing medical problem (one known to the employer) that makes recovery from the new on-the-job injury more time-consuming or complicated. Sometimes an unknown medical problem will arise due to the stress and shock of a sudden work injury.
Employers and their insurers will attempt to limit the medical treatment to the specific work injury and will refuse to pay for medical treatment that is not directly related. As you might imagine this stance creates issues as often the “other” medical problem limits healing or affects treatment. Certainly, in Mrs. Clark’s case, her job injury at WalMart did not cause her osteoporosis, but the osteoporosis most definitely affected her healing and the extent of her recovery.
As is the case in North Carolina, disputes between employers and their insurers about what constitutes compensable care ends up before workers’ compensation judges.
Will I Get Fired if My Employer Finds Out I Contacted a Workers' Comp Lawyer?
Do you think they will fire me if they know I have contacted you? I cannot afford to lose this job. I have a wife and 3 children at home.
–Edgar
Jodi Ginsberg responds: Edgar, I do not know if they will fire you. That is something you will have to determine on your own. The fact of the matter is you can get terminated whether you have an attorney or not especially if they see you cannot do your job because you are injured. That is not right, but it happens all the time.
Employees get injured and do not want to pursue workers comp because they fear losing their job. They avoid going to the doctor, they do not file a workers comp claim and then get fired anyway.
Realize that if you go beyond 30 days from date of your injury and do not report it to your supervisor as worker comp injury then you may be locked out of filing a claim.
You would then be in a really bad spot.. No job, no workers comp benefits and no way to get a new job because you are hurt.
Although workers’ compensation is supposed to prevent conflicts between employers and employees, I have found that workers comp law is one of the most adversarial areas of the law I have seen. Only divorce and domestic relations is worse.
If an employee has been hurt, the employer now has to deal with (1) an injured worker who cannot perform all of his job duties (2) an insurance claim (3) the likelihood that his insurance rates will go up (4) changing attitudes of other employees. In my experience an employee’s loyalty is rarely rewarded. Right now, I am working on a case where an 18 year employee received her termination letter while she was in the hospital and the employer (not the insurance company) is refusing to authorize funds for settlement.
I do not know your employer and maybe your situation is an exception to the rule. However, time and time again, I see dramatic changes in the attitude that an employer has to a long time employee after a workers’ comp claim is filed.
If your injury is at all serious, I think you need to protect yourself because I would not feel comfortable relying on an employer and its insurer to act in your best interest.
[tags] filing a claim for workers compensation benefits, workers comp and statute of limitations, Georgia workers compensation [/tags]