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. 

Third, I recommend interviewing your attorney prior to signing a fee contract. For example, some good questions to ask include whether your attorney ever practiced "on the other side" of the practice - defending the insurance companies and employers, whether he or she has ever appealed a workers' compensation case to the Court of Appeals (or at least tried to), how many workers' compensation cases has he or she handled, whether he or she is a member of Georgia WCCL - (if they don't know what that is, run away!), etc. You want and deserve to have someone who knows workers' compensation like the back of their hand. 

So my point is do not hire a lawyer that does not practice exclusively in workers' compensation if you expect to have the best legal representation possible. You can accomplish this by looking at their advertisements, website, Georgia Bar Directory information, and by interviewing them over the phone or in person. In the end, I want all Georgia injured workers to feel better, be compensated for their time, and obtain the benefits they are rightfully entitled to under the Georgia Workers' Compensation Act. 

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!   

From the perspective of an insurance defense attorney, the IME is also used for three reasons. First, the insurance defense attorney may be unhappy with what the authorized treating phycian has to say. In that case, the defense attorney will select an IME physician he or she believes will disagree with the employee's current restrictions, diagnosis, or the medical necessity of a procedure such as an expensive surgery. The overwhelming majority of doctors will not compromise their integrity and reputation to please a defense lawyer; however, the truth is litigation is a high stakes game, and a few bad apples will provide an opinion contrary to that of the authorized treating physician. The opinion can then be used for the other two reasons: 1.) to attempt to posture the case for a lump sum settlement by having something to use as fodder at a mediation or 2.) to avoid being assessed the employee's attorney's fees if the case is going into litigation. In the first scenario, the defense attorney will argue at the mediation or in settlement discussions that the IME doctor's opinion is better and almost guarantees them a victory if the case were to go to trial. In the second scenario, the employer/insurer may be assessed the employee's attorney's fees if they have unreasonably denied or controverted the case, so an IME opinion stating their decision to controvert the case or deny surgery may be used to show that they were not unreasonable. Interestingly, over 75% of the time, the decision to controvert a case or deny a surgery comes before the Defense IME is even performed! (Talk about putting the cart before the horse.)

For more information on when an injured worker can use his or her an IME, see my corresponding blog post entitled "Independent Medical Exmainations: Knowing Your Rights Under the Georgia Workers' Comp Act" under the Archives section of this Blog.

If you have been ordered to undergo an IME by your employer or its insurance company and have any questions or concerns, please feel free to call our office for a free consultation.

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.

 

 

If you did not work substantially the whole of the 13 weeks preceding the date of accident, you must use the following steps to determine your average weekly wage and corresponding benefits rate.

If you only worked 11 of the 13 weeks before the accident or maybe 2 out of 5 days in 3 of the 13 weeks (examples only), your attorney can and should argue that you did not work enough in the weeks leading up to your accident to accurately provide a fair average weekly wage. In this scenario, your attorney should request the wage records from your employer of a similarly situated employee to determine what your average weekly wage is. If a similarly situated employee exists, the wages of that employee for the 13 weeks leading up to your date of injury are used the same way as above. Your attorney needs to make sure the similar employee qualifies as "similar" - that is to say that the similarly situated employee has the same level of experience, schedule, rate of pay, bonus, number of years with the employer, etc.

If you did not work substantially the whole of the 13 weeks preceding the date of accident, and there are no similarly situated employees, then you are entitled to use your full-time pay to determine your average weekly wage and weekly benefits check. For example, if you worked at $11 per hour at 40 hours per week, your average weekly wage would be $440 ($11 x 40 hours a week). This would equate to a weekly TTD check in the amount of $293.33 (2/3 of your average weekly wage).

As stated above, determining your weekly benefits amount also takes into consideration other factors such as uniform allowance, vehicle allowance, and even the cost of food in some circumstances. Making sure your weekly benefits check is very important in any workers' compensation case.