Georgia Workers Compensation blog

Jodi Ginsberg's Georgia Workers' Compensation Blog

Understanding the Law

What Does it Mean to be a Malingerer?

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The term "malingering" can cause you a great deal of problems if it appears in your medical records. If a judge believes that you are a malingerer, he will likely disregard much of your testimony and he will have an unfavorable attitude about you and your case.  Malingering suggests lying and judges rarely award benefits to claimants who appear to be dishonest.

Physicians regularly employ a variety of tests to help identify a malingerer.  Although these tests are not always accurate and can be rebutted, you are much better off doing everything in your power to avoid the malingering label in the first place.

Tests that physicians, psychologists and psychiatrists use to spot malingering usually fall into one or more of the following four categories:

  • Effort tests – are your scores too low based on what prior tests have shown to be your capability?
  • Pain scales – are you identifying pain in parts of your body inconsistent with diagnostic or clinical evidence?
  • Symptom Endorsement – are you identifying too many symptoms, or symptoms inconsistent with your diagnosis?
  • Waddell’s signs – physical actions that should not cause pain but elicit complaints.  A classic Waddell test is the "distracted leg raise" where a patient has no complaints of knee pain when seated, but painful on straight leg raise.

As you might imagine, your physician will not necessarily tell you that you are being tested for malingering.  Obviously, you should be completely honest and forthright with your physician – you want to create a physician-client relationship based on trust, not on trickery.

If you get the sense that your doctor has a bad attitude about you or is suggesting that you are being less than honest when you are telling the truth, report this situation to your lawyer at once.

[tags] malingering, workers compensation, workers comp, Waddell’s signs, symptom endorsement [/tags]

Medical Treatment in a Georgia Workers' Comp Case – Don't Assume the Insurance Company Has Your Best Interests at Heart

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As I have written in this blog and on my Georgia workers’ compensation web site, the quality and nature of your medical care following your injury will have a lot to do with whether you win your claim and with how much money you can expect at settlement.

I spend a good part of my day looking at my clients’ medical records and talking to my clients about the treatment they recieve.  It is not at all uncommon for the physician chosen by the employer or its insurance company to release my client back to work with limited or no restrictions, when in reality my client is unable to perform his regular job, a "light duty" job, or any job at all.

Unfortunately, the quality and effectiveness of the medical care that you receive in your workers’ compensation case depend in large part upon who has selected the doctor.  Many doctors work at medical clinics that get most of their patients from insurance companies for workers’ compensation treatment.   Insurance company adjustors frequently speak with these doctors and encourage them to release claimants back to work, and to release them with limited or no restrictions.

If I take on a new case and I see that the insurance company has directed my new client to certain doctors, you can be sure that my first course of action will be to call the adjustor and argue for a more neutral physician.  The law also gives us the right to demand an "independent" exam in certain circumstances and we also have the right to ask the State Board to designate a change in treating physician.

Sometimes insurance adjustors or defense lawyers will agree to a change in treating physician if I challenge their choice of a doctor who is known to be firmly in the insurance company’s camp.   In fact, I would say that knowing the reputation of many of the doctors that you are likely to see in a Georgia workers’ comp case has helped me become a more effective advocate for my clients.

In a workers’ compensation setting, you cannot assume that a doctor recommended to you by your employer or its insurer will have your best interests at heart.  Although most of us are conditioned to trust and respect physicians, you have to trust your gut if you find yourself in a workers’ compensation setting.  And if your gut tells you that your current doctor does not have your best interests at heart, you and your lawyer need to take immediate action to regain control of your medical treatment.

[tags] medical treatment under workers compensation, Georgia workers compensation, company doctor, medical benefits [/tags]

Should I Return to Work if the Authorized Doctor Releases Me

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Jodi, I am receiving TTD (temporary total disability) benefits and the authorized doctor told me that he is releasing me to return back to light duty work.  Should I report to work immediately?

Jodi Ginsberg responds:   No, you should not return to work right away. You should wait until you receive a form in the mail called the WC-240 form.  The WC-240 form is completed by the insurance company and describes specifically a light duty job, the date and time that this light duty job will be available.

The WC-240 protects you, the injured worker.  If you show up at your job site and your employer really does not have a light duty job that corresponds to the limitations on the WC-240, your refusal to try a job outside those limitations will not damage your case.  Further, if you try the light duty job for up to 14 days and cannot perform it, your TTD benefits will resume immediately.

If you return to work without a WC-240, you risk the situation where the light duty job really is not light duty.  If you cannot perform it and/or if your employer terminates you, your TTD will be cut off and, of course, your job is over as well.  You then have to file for a hearing and wait two to three months to ask a judge to reinstate your benefits. 

If you return to work with the WC-240, the burden falls on the employer/insurer to try to stop your benefits. If you return without this form, the burden may fall on you to try to get your benefits restarted.  This is a big distinction and can determine whether you have money coming in every week while you recover.  Further, if you have money coming in you will be less likely to be pressured into a cheap settlement.

Sometimes, an injured employee may be pressured to return to work immediately by his boss or even by a well meaning spouse or co-worker.  Do not be manipulated in this manner.  If you have been receiving benefits and your doctor tells you that he will be issuing a light duty release, wait for your WC-240.

As an aside, part of my job as a claimant’s lawyer is to review the WC-240 to make sure that the light duty description is consistent with the medical records, and to object if it is not.  Further, if it turns out that my client cannot perform the light duty work, I will assert my client’s right to a resumption of TTD benefits.

[tags] WC-240, light duty return to work, georgia workers compensation claim, TTD benefits, temporary total disability [/tags]

Will Workers' Comp Cover a Knee Replacement Arising from Years of Heavy Labor?

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As I was loading a 400lb. piece of freight on an aircraft, my (L) knee twisted. I was sent to a clinic and evaluated that I might need a knee replacement. I have a history of several knee surgeries, my job function is loading and unloading airplanes for 30 years. My question is can I obtain my own Dr. in the state of Ga., under the workmans compensation laws………Thanks
–Andrew

Jodi Ginsberg responds:  Andrew, thanks for your interesting question.  Here is how I would analyze your situation.  First, I would want to know if your potential need for a knee replacement is the result of your most recent injury or is it a combination of this injury and your past injuries/surgeries?

Your employer and its insurer may try to argue that your current problem is the result of past injuries as opposed to this incident, and they may try to deny coverage.

Even if your employer tries to deny coverage based on your old knee problems, your case may be winnable if a treating doctor will go on record that your most recent injury aggrevated your pre-existing condition, and if you did not misrepresent your knee problems at the time you were hired.

If your employer has accepted responsibility for covering your knee problem, then the next step would be to get you to a specialist. Under Georgia’s workers’ compensation law, an authorized treating doctor can refer you to a specialist and, generally, the insurer would be responsible for paying the specialist to treat you. If your employer has a valid "posted panel of physicians" there may be a specialist there that you could choose.

If the employer is denying coverage, you would need to request a hearing on the issue of whether your injury is compensable.

As you can see, the answer to your question depends on a number of factors. I do not think you can or should assume that your employer or its workers’ compensation carrier will act in your best interest.

Feel free to call me at 770-351-0801 if you wish to discuss further.

[tags] knee injury and georgia workers compensation, arising out of and in the course of employment, pre-existing condition and workers compensation [/tags]

When is My First TTD Check Due from the Insurance Company?

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I injured my ankle back in August. I have missed work, been place on restricted hours. I finally got sent to a specialist this past thursday. I start rehab on Monday. I had a phone interview with my workers comp. represenative and she told me that i would be reimbursed for time i missed worked and the days that i worked limited hours.

She told me that it would take 13 weeks from today before i would receive any compensation. She also told me that I have to have 13 weeks of time worked prior to the date of the injury and that time worked is a factor of how much i am to receive.

I am hoping that physical therapy will help my ankle so that i can go back to working full time.  Is the workers Comp. rep. trying to get over on me or is the 13 weeks waiting period normal. please let me know as soon as possible. Thank You
–Jason

Jodi Ginsberg replies: Jason, thank you for your inquiry. The answer is "NO." You do not have to wait 13 weeks (91 days) to get payment when an authorized treating doctor gives you a "no work"  form or puts you on light duty and the job has no light duty.

The ins company rep is not telling you the correct information. The law states that when there is an accepted claim, there is a 21 day waiting period from the date of accident and then you can recover TTD (temporary total disability) benefits.  The 13 weeks comes into play when they look at your average weekly gross wage so they can figure how much to pay you in TTD weekly.   There is obviously a big difference between waiting 3 weeks as opposed to 13 weeks.  Again, you only have to wait 21 days (3 weeks) for your first check if the insurance company accepts responsibility for the claim.

Your TTD benefit is an average of the past 13 weeks of gross wages of your salary OR if you were not there for 13 weeks then of a similar employee.  The TTD benefits are 66 2/3 % of average wage and depending upon the year there is a cap paid.  Right now the cap is $450 per week for injuries in 2006.

You are welcome to call me at 770-351-0801 to discuss your case further and rights you have under the law when it comes to benefits, proper medical care, payment, reimbursement and settlement. Please be careful when dealing with the ins company as they may tell you things that are not always correct or that you misinterpreted.

[tags] TTD benefit in Georgia, 21 day waiting period workers comp, 13 weeks and georgia workers compensation, georgia workers comp benefits [/tags]