What Is The Maximum Settlement Amount for My Georgia Workers' Compensation Claim?

Do you want to know how much your Georgia Workers' Compensation claim should settle for? The truth is you need to know two things. First, the adjuster will never offer you as much as the case is worth, so attempting to negotiate a settlement on your own, in most cases, could cost you thousands of dollars. Second, hiring the right man for the job is always the most important thing for any task, and settling your workers' compensation claim is no exception. You should consult with an experienced Georgia workers' compensation attorney prior to signing anything - even if it is for a free initial consultation (just about every lawyer offers them). You can read my post on how to find an experienced workers' compensation attorney by clicking here.

My hope is that this article will help you get an idea of what all goes into a fair settlement. Remember, using this blog to calculate your settlement amount is a very bad idea because I haven't had the chance to talk to you and ask you questions, and not every aspect of every case can fit neatly into the following three categories. No attorney-client relationship can exist just by reading my blog, so please read the rest of this post and give serious consideration to calling an experienced Georgia workers' compensation attorney before you sign anything

Settling your Georgia Workers' Compensation case involves taking into account several different factors. First, there are your lost wages which are called temporary total disability or temporary partial disability benefits in workers' comp. A good settlement will include any past-due workers' compensation indemnity benefits (lost wages), plus late penalties if applicable, and a realistic estimate of future temporary total disability or temporary partial disability benefits.

Second, your medical treatment, both past and future, needs to be accounted for. These expenses could inclue surgery, medical mileage, prescriptions, physical therapy, rehabilitation supplies, pain management, x-rays, CT Scans, MRI's, EMG's, injections, spinal cord stimulators, and follow-up appointments with an orthopedist, neurologist, or a neurosurgeon - the list goes on and on. You may also need to obtain a Medicare Set Aside account in certain circumstances, and failing to do so when it is necessary could potentially result in Medicare denying you medical treatment in the future. 

Third, assuming this is not a death claim and you are not catastrophically disabled, then the last thing you want to consider is your permanent partial disability rating associated with your Georgia Workers' Compensation injury. Generally speaking, a PPD rating is issued by your doctor once you reach maximum medical improvement. For a great article explaining PPD ratings, read my prior blog post entitled "What is a Permanent Partial Disability Rating and How Do I Know What Mine Is?" by clicking the link. That rating is then multiplied by a certain number of weeks depending on what body part the injury involved as discussed in my prior post. 

There are, of course, additional factors to consider when settling a workers' compensation case not discussed here. For instance, if you also had a Title VII employment discrimination case against the Employer, you need to be extremely cautious in signing anything as the settlement documents will undoubtedly release or discharge the employer from any other potential lawsuit. Additionally, please know that you do not get pain and suffering in workers' compensation cases, so do be realistic in your expectations regardless of how significant your injury is.

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What To Consider When Hiring a Lawyer: Workers' Comp. Expertise

If you are reading my blog, you are probably considering whether to hire a workers' compensation attorney to handle your case. I receive several phone calls every month from Georgia injured workers who already have an attorney; however, their attorney has not done a very good job handling their case. Often, the case has sat dormant on the corner of their attorney's desk for months and opportunities for second opinions were missed. In some cases, the injured worker has missed out on thousands of dollars because their attorney did not act timely or simply did not understand what to do and when to do it. An experienced workers' compensation attorney can usually get the ox out of the ditch. However, I am writing this blog post for those of you out there who have not hired an attorney yet. 

If you are considering hiring a lawyer for your Georgia workers' compensation claim, I encourage you to verify that they are, at a minimum, a member of the Workers' Compensation Section of the State Bar of Georgia. You can verify here by simply typing in the name of the attorney you are considering hiring, and then clicking on his or her name. If you do not see "Workers' Compensation Section" on their profile, I would take caution in retaining their services. 

Second, I recommend looking at how many different practice areas your potential attorney claims to specialize in. (There is a very good reason I do not defend death penalty cases or pursue medical malpractice claims....because I know how much I know about workers' compensation, and I can assure you there is just as much law in these areas that I simply do not know.) Do not hire a "Jack of All Trades and a Master of None"  - there is no such thing as a true general practitioner in the law today. A very good analogy is the practice of medicine - Would you trust your primary care physician to perform open heart surgery? Would you want a Burn Unit surgeon operating on a herniated disc in your back? See my point? Many lawyers would disagree with me here; however, I do not recommend hiring an attorney who practices in workers' compensation and ten other things.  You need an expert who devotes his or her entire practice almost exclusively to workers' compensation. 

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What Is a Permanent Disability Rating and How Do I Know What Mine Is?

 Dear Mr. Hawkins: An insurance adjuster said to me that my permanent disability rating was about 10% and that entitled me to $5,000. What is a permanent disability rating and how do I know they are telling me the truth? -Craig, Thomasville, GA

Thank you for your question Craig. I imagine this particular adjuster threw this number at you as a settlement offer? If so, do not sign anything and do not accept this amount without talking to an experienced workers' compensation attorney. Permanent partial disability is another benefit injured workers are entitled to under the Georgia Workers' Compensation Act that insurance adjusters do not want you to know about. About the only time they will tell you about permanent partial disability, or PPD for short, is when they want you to settle the case and they know you are unrepresented by counsel. 

A permanent partial disability rating, or "PPD" rating, should be issued by the authorized treating physician when the injured worker reaches maximum medical improvement or "MMI." MMI does not occur until your doctor, or medicine in general, has nothing left to offer you to make you better. The rating is a percentage of permanent impairment the injured worker has sustained as result of the workers' compensation accident. It is often issued either to the body part injured or to the body as a whole. For example, one may sustain a 40% impairment rating to the body as a whole for a serious leg injury or an 85% impairment rating to the lower extremity. Under Georgia law, the percentage is then multiplied by a certain number of weeks under the Georgia Workers' Compensation Act. The Code section which provides these numbers is O.C.G.A. Sec. 34-9-263 which can be viewed by the public for free here. That number is then multiplied by the injured workers' comp rate (which is the same as the injured workers' temporary total disability rate - see "How Much Do They Owe Me? Calculating Your Workers' Comp. Check in Georgia."  article on this site). That amount is how much money an injured worker is entitled to under the Georgia Workers' Compensation Act for their PPD rating; however, that is not the full extent of the value of the case, and you should not settle your case for that amount.

An experienced workers' compensation attorney will review the doctor's permanent partial disability rating and compare it to the American Medical Association's Guides to the Evaluation of Permanent Impairment, 5th Ed. to ensure the injured employee is receiving a fair rating. Additionally, an experienced workers' compensation attorney will review your average weekly wage to ensure your comp rate is accurate under the law. Often, the insurance company makes a mistake or intentionally miscalculates your average weekly wage to save money. Several other factors need to be considered when settling a case for a lump sum settlement. These other factors will have a significant impact on how much you are entitled to under the Georgia Workers' Compensation Act. If you have sustained a work-related injury, and have been offered a settlement based on the insurance company's estimated average weekly wage, comp. rate, and/or permanent partial disability rate, I recommend you talk with an experienced workers' compensation attorney prior to accepting or signing anything. If you would like to discuss your case with me at no obligation, please feel free to call either one of our offices today. The consultation is always free and will remain confidential until you instruct us otherwise. 

Common Shoulder Injuries in Workers' Compensation Cases

One of the most common injuries I see as a Georgia workers' compensation attorney are shoulder injuries. Given that most employees are constantly using their arms for heavy or repetitive lifting, I am never surprised to get a new shoulder case. Sudden movement of the arm can cause a dislocated shoulder, torn rotator cuff, partial rotator cuff tear, and so on. Shoulder pain is a serious symptom that should be taken seriously because early intervention can reduce the risk of further tearing of the cuff and permanent partial loss of the upper extremity.

The reason why the shoulder is so vulnerable to injury is because the ball of the upper arm is larger than the socket, and often the ligaments, tendons, and muscles which hold your shoulder in place are damaged from repetitive activities or over extension of the arm. This can cause the ball to literally come out of the socket and damage the shoulder. The most common shoulder injuries include strains, sprains, dislocations, separations, tendinitis, bursitis, torn rotator cuffs, frozen shoulder, fractures, and aggravation of preexisting arthritis (which is also compensable under the Georgia Workers' Compensation Act). While the tendons can be a source of the pain, the muscles around the socket are usually the root cause of a serious shoulder injury and the most commonly injured rotator cuff muscles are the supraspinatus and infraspinatus muscles.

Doctors will usually treat shoulder injuries with conservative treatment first. Conservative treatment consists of rest, ice, compression, and elevation (RICE) until an exact diagnosis can be given. In some cases, physical therapy and injections into the shoulder may relieve the pain; however, if conservative treatment fails, an MRI of the shoulder should be ordered by the treating physician to examine the joint for significant damage. More aggressive treatment usually includes surgery to repair the shoulder if a rotator cuff tear or a partial rotator cuff tear can be identified on MRI. In rare cases, a surgeon may perform exploratory surgery if an MRI is negative, yet pain persists and the injured worker has a loss of their range of motion. 

The road to recovery for serious shoulder injuries can be long and difficult. Injured employees must be patient and follow their doctor's orders to obtain the best results. However, in many cases the shoulder never returns to pre-injury status and use of the upper extremity is occasionally permanently restricted.

 

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Independent Medical Examinations: What's It All About?

So what is an Independent Medical Examination (IME)? And why is it so important in Georgia workers' compensation claims? The answer is not simple, because the IME is utilized by the employee's attorney and the employer's attorney for very different reasons.

An IME is an opportunity to have a different doctor physically examine an injured worker and review their medical records and diagnostic tests for the purpose of providing a second opinion. The IME doctor should make a diligent effort to address some of the issues the patient is having and try to figure out what is or is not going right medically speaking. He or she may also address the injured worker's current work restrictions, treatment options, the necessity of a recommended surgery, and when applicable, the injured worker's permanent partial disability rating if one has been issued.  

From my perspective, as an attorney who only represents injured workers, I use the IME in three situations. First, when I find a client's diagnostic tests are consistent with a serious injury (usually through x-rays, CT scans, EMG's, or MRI's), but the treating physician is skeptical of the employee's complaints of pain or the doctor's specialty does not focus specifically on the type of injury my client has sustained, I recommend an IME to confirm or dispute the treating physician's opinion on the case. Occasionally, the authorized treating physician will take offense to the IME. However, I make every effort to explain the purpose of the IME to the treating physician whenever possible. My job as an attorney is to zealously represent my client and in some cases that involves double-checking a doctor's findings with an equally qualified peer unassociated with the treating physician's practice or a specialist who works primarily on the type of injury sustained. 

Second, I will recommend an IME even where I know I have a good and reputable doctor treating my client, but my client is still doubtful of the diagnosis, treatment options, or work restrictions. In that case, I will recommend an IME for the sole purpose of addressing my client's concerns. As any doctor knows, peace of mind for a patient is a part of the healing process. Further, I feel as though what sets a good workers' comp. lawyer apart from a bad one, is a genuine and sincere interest in making sure all of my client's concerns are addressed and ensuring that my clients feel as though they were thoroughly examined and were given sound medical advice, especially if an injured worker is facing surgical intervention.

Third, I will recommend an IME when an injured worker has an unusual condition such as Complex Regional Pain Syndrome (formerly known as Reflex Sypmathetic Dystrophy), and an expert in treating that particular condition is required for a diagnosis or treatment plan. This infuriates the insurance industry because of the cost associated with IME's involving very difficult atypical cases, but every workers' compensation lawyer should be willing to try to provide the very best care he or she can for their clients. Period!   

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Notice of Gradually Acquired Injuries: Does the Shipman Exception Apply to 34-9-80?

Under O.C.G.A. Sec. 34-9-80, an employee generally has 30 days from the date of injury to notify his supervisor that they have sustained a workers' compensation injury. There are several exceptions to this rule, and the 30 day time limit rarely will bar a Georgia workers' compensation claim. Notice also does not necessarily have to be written; rather, an employee simply telling his supervisor that he sustained a work-related injury will be sufficient to preserve his rights under the Georgia Workers' Compensation Act. As well, in serious cases where the employee is unable to notify his supervisor of the injury, a family member or a representative of the injured worker may notify the employee's supervisor of the injury. Additionally, in some cases, an employee does not have to necessarily state that the injury is a workers' compensation claim.  Georgia Courts have been extremely liberal in notice cases. To that end, some cases hold that simply notifying the employer that something is wrong will suffice. However, it is best to go ahead an notify the supervisor of the injury within the 30 day time limit to be safe.

But what about gradually acquired or cumulative trauma injuries? The late Professor Larson pointed out in his treatise on workers' compensation that the public policy behind the notice requirement is to give the employer time to investigate the claim while the evidence is fresh and to allow the employer the ability to mitigate its damages if possible. However, Georgia Courts have used the date the injury manifests itself (usually when the employee goes out of work) for determining when the statute of limitations begins for cumulative trauma or gradually acquired injuries. But that does not answer the question of when the 30 day notice period should begin to run for these types of injuries. The principal case is the Shipman case, which is why I have called this the "Shipman Exception" to the statute of limitations. Shipman v. Employers Mut. Liability Ins. Co., 105 Ga. App. 487, 125 S.E.2d (1972).

In Shipman, the employee was gradually losing his hearing. However, the employer knew about the gradual hearing loss because it had periodically performed hearing tests of its employees and knew that the employee was becoming deaf. (So notice was not an issue, as they were clearly on notice of the fact that the employee was losing his hearing.) The Court held that the date of injury, for statute of limitations purposes, would be the date the injury manifested itself; however, to my knowledge Georgia Courts have not specifically addressed when the 30 day notice requirement begins to run for notice purposes under O.C.G.A. Sec. 34-9-80 in gradually acquired or cumulative trauma cases. By inference, we all assume it would be 30 days from the date of injury (the date the injury manifests itself or the date the employee goes out of work due to the injury) because of how the statute literally reads when coupled Shipman's determination of when the actual date of accident is. However, in many cases, the purposes Professor Larson mentions are not satisfied here.

For example, assume a Georgia worker is working on an assembly line performing the same function over and over again with their hands. Assume also that the employee eventually develops carpal tunnel syndrome as a result of her job duties and sees their primary care physician (a non-panel doctor), and is told you are developing CTS, and it is directly related to your work duties on the assembly line. Shipman places no duty on the employee to report the gradually acquired condition to the employer until the injury manifests itself - often, the date the employee goes out of work. Thus, the employer does not have the opportunity to investigate the cause of the condition and mitigate its damages, i.e. moving the employee to a different position in the plant or altering his or her job duties. So what happens next? 

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Facebook, Twitter & Myspace for Injured Workers...Who Is Watching You?

Social networking sites are the newest way we communicate with our family, friends, and co-workers. The craze has caught on and nearly every generation is tweeting or posting status updates to their Facebook, Twitter, and Myspace pages. In fact, Facebook now has 750 million users worldwide.  It took radio 38 years to reach 50 million people...Facebook added 100 million users in less than 9 months. So why does that matter to the injured worker? 

It is important to keep in mind that what you say on the internet may come back to haunt you. Insurance defense firms and private investigators are beginning to monitor injured workers' status updates and tweets. Some private investigators are even making up bogus Facebook profiles of attractive men or women to target injured employees with the hope that they will accept their friend request and essentially give them access to the injured workers' daily activities.

I have already seen the seemingly innocent status updates from injured workers, who did not have privacy control settings in place, backfire on them in court. 

Today, defense attorneys are attempting to use these updates and tweets against injured workers in court and in the doctor's office. The term "social website surveillance" has emerged as yet another weapon in the insurance industry's arsenal. In Canada, courts are beginning to order plaintiff's private social website information, including pictures and status updates, to be produced and preserved in civil actions. I imagine the idea of requesting courts to authorize similar information, even when the information is not public, is not that far away for Georgia workers' compensation case. The point is, be careful what you say on the internet. What happens on Facebook does not always stay on Facebook. 

***Update - As of August 2011, The Georgia State Board of Workers' Compensation has ordered an injured worker's home computer and Facebook account be made available to the attorneys for the insurance company. The decision was upheld by the Superior Court that reviewed the decision, and the Georgia Court of Appeals and the Supreme Court of Georgia denied cert. 

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A History of Workers' Compensation: Why We Have What We Have

Workers' Compensation is by far one of the most misunderstood administrative law systems our great nation has adopted. People are always asking me what do I do as a Georgia workers' compensation attorney and why do we have a workers' compensation system in the first place. To help clients and the run-of-the-mill inquiring mind I may meet at a party or at the gym understand, I try to explain to them the history of workers' compensation along with the purpose and public good the workers' compensation system serves for Georgians. 

Prior to the enactment of the Georgia Workers' Compensation Act, the only way employees could recover from the negligent acts of their employer was through a formal lawsuit. Employers would argue the employee assumed the risk by taking the job or was partially to blame for the accident. In the majority of the cases, the employee lost. When the employee did win, the damages were often so costly many businesses could not afford to pay for the damages caused to the employee and simply went out of business.  The employee was often left with disabilities, damages, and lost wages. The employers, when they did lose, would file for bankruptcy or dissolve. The results were often bad for both Georgia employees or employers.

Recognizing the dilemma, several states starting enacting workers' compensation laws based on those enacted in European countries during the Industrial Revolution.  In 1920, the Georgia Legislature passed the first comprehensive workers' compensation legislation to allow employees to recover for medical benefits, lost wages, permanent disability, and death benefits sustained as a result of injuries occurring on the job.  Both the employer and the employee essentially had to compromise in that workers' compensation is a 'no fault' system, meaning the employee can recover regardless of who is at fault in most cases; however, monetary caps on how much the employee could recover were put in place in order to protect Georgia employers. Insurance companies saw an opportunity to make money, and began writing workers' compensation policies.

Other restrictions were put into place in favor of the employer in exchange for a no fault system. For instance, the employer is required to post a panel of physicians the employee must choose his or her doctor from, the amount of lost wages an employee can recover each week is capped at two thirds of his or her average weekly pre-injury wage, the employer still has the option to controvert or deny a claim if they do not believe the injury or occupational disease occurred on the job, etc. The workers' compensation laws are constantly changing, as lawyers and judges across the State of Georgia continue to hammer out the details in an effort to provide a system that is fair to employees and employers.

Today, Title 34, Chapter 9 of the Official Code of Georgia is the Georgia Workers' Compensation Act.  We also have, as a supplement to the Georgia Workers' Compensation Act, a set of Board Rules issued by the Georgia State Board of Workers' Compensation. The Workers' Compensation Act has several defenses employers and insurance companies can use to avoid paying for the benefits the employee may be entitled to when they are injured on the job. Additionally, there are hundreds of cases interpreting the Georgia Workers' Compensation Act and Board Rules that only an experienced workers' compensation attorney will be fully aware of. Navigating the Georgia the system with an attorney who only dabbles in workers' compensation or by representing yourself pro se can be a dangerous venture. Often the adjuster who handles the claim on behalf of the insurance company does not always tell the employee all of their rights in order to prevent their company from losing money.  Insurance adjusters will also offer lump sum settlements to unrepresented employees that are far under the true value of the case. Do not be deceived by the commercials you see about responsibility and doing what is right.  The insurance industry is not your advocate or your friend. 

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How Much Do They Owe Me? Calculating Your Workers' Comp. Check in Georgia

In Georgia, determining how much you should receive each week when you have sustained a workers' compensation injury and are unable to work begins with determining your average weekly wage. This is a tricky issue that often requires the assistance of an experienced workers' compensation attorney because a number of factors from uniform allowance to how many hours you worked per week can come into play.

To begin, review your wage records from the thirteen weeks prior to the week of your injury. You should utilize your gross pay (before taxes, insurance, etc. are taken out), not your net pay (what your actual paycheck is.)  Not counting the week of your injury, look to see if you worked the majority of the 13 weeks preceding the date of the injury. If you worked substantially the whole of the 13 weeks, add up your pre-tax weekly wages for those 13 weeks, and divide that number by 13. That is your average weekly wage. To determine how much your weekly benefit should be, divide that number by 1.5. That amount should be how much you are paid each week if you have been taken completely out of work by your doctor. For example, if your average weekly wage is $600, your weekly check should be $400. Note, the current cap on temporary total disability weekly benefits is $500.

If you are working reduced hours or at a lower rate of pay because you were placed on light-duty restrictions by your doctor, you will be receiving temporary partial disability benefits and your check should be equal to two-thirds of the difference between your pre-injury wage during the 13 weeks prior to your injury, and your actual weekly pay while working on light-duty.

 

 

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Surveillance of Injured Employees: What You Need to Know About Who is Parked Across the Street

One of the most common questions I am asked by my clients is whether the insurance company will conduct videotaped surveillance of them after they file a claim. The answer is Yes, and often! Just ask Jack "Rocky" Whitten who was taped by The Hartford eating a taco. Rocky lost his disability benefits he had obtained due to a broken neck after paying his premiums for years while working as the Manager of a Wal-Mart. While Mr. Whitten's case involved a long-term disability plan, the same tactics are used in workers' compensation claims.

The insurance companies will use the tapes for many reasons. The surveillance is almost always used to intimidate claimants into settling their case for less than they should.  However, the insurance company will also show the tapes to your doctor to try to persuade their diagnosis and to the judge in order to influence the outcome of the hearing. In the most extreme cases, the insurance company may even try to press charges against you for insurance fraud as was the case with a Quakertown, Pennsylvania woman who lied about a second job she had as an exotic dancer. 

How do you know if you are being watched? The private investigator will usually set up a post outside of your residence in an unmarked car and wait for you to come outside. The P.I. will follow you if you drive anywhere and tape you getting in and out of your car, filling your car up with gas, loading your car with groceries, putting your child in their car seat, or even eating a taco. It is okay to do those things, but make sure you are not moving or lifting in a manner that would seem inconsistent with your injury.  This is true even if you have not hired an attorney or even filed your claim for workers' compensation benefits.

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