Workers Comp Survival Kit TABLE OF CONTENTS

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2 Workers Comp Survival Kit 100 Frequently Asked Questions TABLE OF CONTENTS OXNER + PERMAR... 4 CAN I CALL AND JUST ASK YOU A QUESTION?... 4 HOW DO I HIRE OXNER + PERMAR AND WHAT DOES IT COST?... 4 WHAT IS A BOARD CERTIFIED SPECIALIST IN WORKERS COMPENSATION?... 4 LAWYERS... 5 HOW DO I KNOW IF I NEED A LAWYER?... 5 WHY SHOULD YOU HAVE TO PAY AN ATTORNEY S FEE WHEN THE INSURANCE COMPANY HAS WRONGLY DENIED YOUR CLAIM?... 5 WOULDN T I GET MORE MONEY IF I DIDN T HIRE AN ATTORNEY?... 6 IF I HIRE AN ATTORNEY AM I GOING TO GET FIRED?... 6 I VE GOT A LAWYER (I THINK) BUT I VE NEVER SPOKEN TO ANYONE BUT A PARALEGAL CAN I (OR SHOULD I) CHANGE LAWYERS... 7 WHO SETS ATTORNEY S FEES?... 8 I JUST GOT HURT AT WORK... 9 I JUST GOT HURT. WHAT S THE FIRST THING I SHOULD DO?... 9 WORKERS COMPENSATION DEFINITIONS... 9 What is an accident?... 9 What is an occupational disease?... 9 I M INJURED, WHY AREN T I GETTING BENEFITS? WHY SHOULD I HAVE TO SUBMIT TO A DRUG TEST? DEALING WITH YOUR DOCTORS WHAT MEDICAL TREATMENT AM I ENTITLED TO? CAN I JUST GO SEE MY OWN DOCTOR? DO I HAVE TO GO TO A COMPANY DOCTOR? IS THERE A SUREFIRE WAY TO RUIN MY CLAIM WITH THE DOCTOR? WHY WON T THE DOCTOR JUST GIVE ME A (MRI, INJECTIONS, PRESCRIPTIONS, ETC.)? IF I HURT MY BACK HOW COME I CANNOT FEEL MY TOES? I DON T THINK THE DOCTOR IS REALLY PAYING ATTENTION TO ME HE JUST TAPS MY KNEES AND ANKLES AND A FEW OTHER THINGS WHAT S THE POINT OF PHYSICAL THERAPY? WHO S THIS NURSE GOING TO THE DOCTOR WITH ME? WHAT IS MAXIMUM MEDICAL IMPROVEMENT? WHAT HAPPENS WITH MY MEDICAL TREATMENT AT MAXIMUM MEDICAL IMPROVEMENT? WHAT ARE PERMANENT PARTIAL IMPAIRMENT RATINGS? HOW ARE MY PHYSICAL RESTRICTIONS DETERMINED? I AM NOT DEPRESSED MEDICAL DEFINITIONS What is conservative treatment? What is the difference between and MRI and an X-RAY? What is evidence-based medicine? What is attendant care? What is pain management? What is a Functional Capacity Evaluation?... 22

3 What is symptom magnification? What is secondary gain? I HAVE SOME QUESTIONS REGARDING MY EMPLOYER CAN MY EMPLOYER MAKE ME DO A FAKE JOB? WHAT IF I HAD TWO JOBS WHEN I GOT HURT? MY EMPLOYER IS SENDING ME TO THE COMPANY DOCTOR. IT S AN ACCEPTED CLAIM, RIGHT? WHAT S THE DIFFERENCE BETWEEN A FORM 60 AND A FORM 63? WHAT AM I SUPPOSED TO DO WITH A FORM 19? WHAT S SO IMPORTANT ABOUT A FORM 18? MY EMPLOYER TOLD ME TO FILE THIS CLAIM ON MY HEALTH INSURANCE. WHAT S WRONG WITH THAT? I M NOT SURE MY EMPLOYER HAS WORKERS COMPENSATION INSURANCE. HOW DO I FIND OUT? UH OH. MY EMPLOYER IS UNINSURED. AM I IN TROUBLE? MY BOSS JUST SAID I M AN INDEPENDENT CONTRACTOR. CAN I STILL GET WORKERS COMP? I JUST STARTED WORKING HERE LAST MONTH. HOW DO THEY FIGURE MY AVERAGE WEEKLY WAGE? WHY IS MY EMPLOYER HAVING ME COME TO WORK AND JUST SIT THERE? CAN I BE FIRED WHILE I M ON WORKERS COMPENSATION? MY HUMAN RESOURCES PERSON SAID I HAD TO USE MY VACATION AND SICK TIME BEFORE THEY WILL PAY ME ANYTHING I WORK FOR A TEMP AGENCY AT A DIFFERENT COMPANY. HOW S THIS GOING TO WORK? THE INSURANCE ADJUSTER THE ADJUSTER IS HERE TO HELP ME, RIGHT? HOW IS MY PAY CALCULATED? THE ADJUSTER WANTS ALL MY MEDICAL RECORDS FOR THE LAST TEN YEARS. SERIOUSLY? WHY CAN T THE ADJUSTER PAY ME ON TIME? THE DOCTOR HAS ORDERED A TEST BUT THE ADJUSTER ISN T APPROVING IT. WHY? WHY DOES THE ADJUSTER HAVE TO GET A SECOND OPINION WHEN HER OWN DOCTOR HAS RECOMMENDED SURGERY? CAN THE ADJUSTER REALLY SEND ME HALFWAY ACROSS THE STATE TO SEE A DIFFERENT DOCTOR? CAN MY EMPLOYER OR THE ADJUSTER TALK TO MY DOCTOR BEHIND MY BACK? THE DOCTOR JUST TOOK ME OUT OF WORK BUT MY ADJUSTER SAID SHE ISN T PAYING ME YET. WHY? CAN THEY REALLY PUT A PRIVATE INVESTIGATOR ON ME? CAN PRIVATE INVESTIGATORS TAKE PICTURES OF MY FAMILY? CAN AN ADJUSTER JUST CLOSE MY FILE? GOING BACK TO WORK I M NOT SURE I M READY BUT THE DOCTOR HAS RELEASED ME TO RETURN TO WORK WHAT IS A TRIAL RETURN TO WORK? I M GOING BACK TO WORK ON LIGHT DUTY. ANY SUGGESTIONS? WHAT HAPPENS IF I CANNOT PERFORM MY LIGHT DUTY JOB? I M HAVING TROUBLE WITH MY RETURN TO WORK. WHAT DO I DO? WHAT HAPPENS IF I CANNOT RETURN TO MY OLD JOB? AM I GOING TO BE ABLE TO GET ANOTHER JOB WHEN THIS IS ALL OVER? IF I INJURE MYSELF AGAIN WHAT HAPPENS? THE WORKERS COMP LEGAL PROCESS WHAT IS THE NORTH CAROLINA INDUSTRIAL COMMISSION? WHAT ARE DEPUTY COMMISSIONERS? WHAT IS THE FULL COMMISSION? IS THERE ANYTHING THE INDUSTRIAL COMMISSION WILL DO TO SPEED UP MY MEDICAL TREATMENT?

4 WHAT IS A MEDIATION? WHAT S THE DEAL WITH THIS RECORDED STATEMENT? WHAT ARE INTERROGATORIES? I JUST WANT MY DAY IN COURT. THAT S REASONABLE, RIGHT? HOW LONG DO WORKERS COMPENSATION CLAIMS LAST? WHAT IS A MEDICARE SET-ASIDE AGREEMENT? WHAT HAPPENS WHEN I SETTLE? I SETTLED MY CASE. CAN I GET OUT OF IT? IF I SETTLE MY CASE AM I GOING TO HAVE TO QUIT MY JOB? DO I PAY TAXES ON ANY OF THIS? CAN I SUE MY EMPLOYER FOR NEGLIGENCE? I WAS INJURED BECAUSE OF SOMEONE S MISTAKE. CAN I SUE THEM? MY HEALTH INSURANCE PAID SOME OF MY BILLS. DO I HAVE TO PAY THEM BACK? CAN I RETIRE AND BE ON WORKERS COMPENSATION? CAN I GET SOCIAL SECURITY DISABILITY AND BE ON WORKERS COMPENSATION? WHAT S THE DIFFERENCE BETWEEN GETTING A RATING AND HAVING A CLINCHER? CAN I DRAW UNEMPLOYMENT AND WORKERS COMPENSATION CHECKS AT THE SAME TIME? CAN I DRAW SHORT-TERM OR LONG-TERM DISABILITY AND WORKERS COMPENSATION CHECKS AT THE SAME TIME?. 52 WORKERS COMPENSATION IS GOING TO TAKE CARE OF ME FOR LIFE, RIGHT? THESE LAWS SEEM COMPLETELY UNFAIR HOW DO MILEAGE REIMBURSEMENTS WORK? WHAT HAPPENS TO MY CHECKS AT MAXIMUM MEDICAL IMPROVEMENT? WHAT ABOUT PAIN AND SUFFERING?

5 Can I call and just ask you a question? Believe it or not we do not charge anything for this Yes Please call us. We would much rather talk to you now and give you some advice than have disaster strike and you have to call us later. Most of the time we can have you speaking with an attorney who has been certified by the State of North Carolina as a specialist in workers compensation within just a few minutes. Less than 2% of all attorneys have that certification by the way So call us One of our staff will take a few notes and get a Board Certified Specialist on the phone. We are so dedicated to answering questions that even the two founders of the firm, Todd Oxner and Chip Permar, spend a good portion of their day giving advice to injured people just like you. How do I hire Oxner + Permar and what does it cost? We work on a contingency fee basis. You may have heard this term before or heard a lawyer on television say, we don t get paid if you don t get paid. A contingency fee means something has to happen in order for us to get a fee. That something, the contingency, is you getting paid. So if your claim is denied and you aren t getting anything then we don t get paid until and unless you get paid. If you don t get paid then you don t owe us a fee. It s as simple as that there s no risk to you. If your claim is accepted and you re getting paid then our fee is based on the permanent award at maximum medical improvement or a settlement. There are other less common contingencies like you receiving Social Security Disability with an offset or receiving temporary partial disability. The Industrial Commission has to approve all of our fees. They normally approve a fee of 25% -- and although some firms do, we never ask for more than 25% of your overall settlement. Other than on disputed or litigated benefits, we don t take fees on temporary benefits. What is a Board Certified Specialist in Workers Compensation? The North Carolina State Bar is the government agency which licenses and monitors attorneys. This agency distinguishes a very, very small number of attorneys as Board Certified Specialists. In order to be Board Certified, an attorney has to practice primarily in workers compensation for at least five years, submit an extensive application detailing various cases which they have handled, go through many hours of continuing education, have their work evaluated by a committee of other attorneys, and then if they are lucky 4

6 enough to get that far they take a day-long written examination, which many seasoned attorneys fail. Todd Oxner was in the very first group of attorneys ever named as Board Certified Specialists in Workers Compensation. Currently Oxner + Permar has eight Board Certified Specialists in Workers Compensation, more than any other plaintiff s firm in the entire state. How do I know if I need a lawyer? The easiest way is to call us and talk it over We don t charge anything to talk and 99% of the time you can talk with either Chip Permar or Todd Oxner within just a few minutes of calling. Unlike a lot of other firms, we think injured workers should talk to attorneys not just to intake specialists or investigators. We also think you probably want to speak with some of the most experienced and high profile lawyers in the firm. So the two founders of the firm set aside time every day to talk to injured workers. We ve asked around and as far as we can tell we are the only firm this size where just about any time you need you can talk to the guys whose names are on the door. Our rule of thumb for needing a lawyer: 1. The claim is denied. 2. The adjuster is not paying the correct amount of weekly benefits on a timely basis. 3. The adjuster is not authorizing medical treatment on a timely basis. 4. You will likely have a surgery or a permanent disability. 5. You have questions as to whether or not you can return to your old job for the long term. 6. The adjuster is trying to get you to settle your case but is not offering you enough money. It isn t limited to that list, of course, but we deal with those situations almost daily. And we have specific solutions and ideas that we can tailor to your case if you find yourself in that predicament. So give us a call. Why should you have to pay an attorneys fee when the insurance company has wrongly denied your claim? 5

7 That s a fair question. The short answer is the but for answer you wouldn t get anything but for the work that your attorney did for you. The long answer is that we may be able to convince the Industrial Commission to sanction your employer or their insurance company for a frivolous denial and have our fees shifted over to the other side. We are pretty aggressive about pursuing these under a provision in the law that penalizes a party for stubborn, unfounded, litigiousness. But with the new laws implemented by Gov. McCrory, we ve seen a decline in these being awarded. This may be a temporary phase. And we re still filing those claims when we think the defendants are being ridiculous. Wouldn t I get more money if I didn t hire an attorney? We cannot guarantee the results in any case there s too much uncertainty as to what may happen. That s especially true if you hire us early in a case. If you don t get better your case is going to be worth a lot more than if you re back to your old self in six months. Obviously you would rather be healthy with a small case than the other way around. In many cases, though, we are able to negotiate a settlement which is considerably larger than you would have gotten on your own so that even after having paid a fee you walk away with more money than you would have otherwise. We aren t good at everything if you need to fight a traffic ticket or get a divorce we probably aren t the right attorneys for you. But we do know the ins-and-outs of workers compensation. In this area knowing the law is critical to getting what you are entitled to. Oxner + Permar is proud to have more North Carolina State Bar Board Certified Specialists than any other plaintiff s firm in the entire state. If I hire an attorney am I going to get fired? Well, with the current state of the law in North Carolina an employer can fire you for just about anything. That s not reassuring, we know. But it would be self-serving and dishonest to say if you hire us we can guarantee you won t ever be fired. On the other hand we ve seen very few clients get fired when they hire us. In fact the number of people who come to us having been fired under dubious circumstances is much greater than the number who get sacked after we are on the case. Why? Well it s our perception that a lot of employers who want to mistreat an employee are figuring that they will get away with it. The average employee would have no idea if this was legal or illegal or what their options might be. They may be ticked off but likely won t do much about it because they don t know what their options are. On the other hand if the employer knows 6

8 you have an attorney this tactic wouldn t work. All you d have to do is call us. Thus we ve observed what we think is a deterrent effect on employers who might otherwise get shifty. If I have a lawyer will I only speak to a paralegal? That s not our style, that s for sure. Our paralegals are highly trained, we keep them to a moderate caseload so they have time to spend on everyone s file, and our clients pretty much love them, but they aren t lawyers. There are a lot of times where you need to speak with a lawyer. Our lawyers set aside time every day to return calls. If you call at 10:00 am you may not get him or her on the phone, but your paralegal will set an appointment for the attorney to call you at a specific time later in the day or first thing in the morning. You can go about your business and do not have to sit by the phone wondering if the attorney is going to call you. That s how we do it. We cannot tell other lawyers how to run their offices. But we think it is perfectly reasonable for you to be able to call them up and set an appointment for either a face-to-face meeting or a telephone call at a specific time. And you should be able to expect them to keep that appointment. Can I (or should I) change lawyers? You can but you shouldn t necessarily do so without careful thought. Should you change attorneys? Our policy (and we deal with this question frequently) is that if there is a disagreement as to how your case is being handled you should insist on a face-to-face meeting with him and try to clear the air. Some attorneys are amazing in the courtroom and are able to cajole all kinds of deals with adjusters but are really lousy at talking with their own clients. So give your attorney a chance to do better. If the attorney simply won t work with you then you may need to give serious thought to changing attorneys. You ve only got one shot at your workers compensation claim. Unlike a friendly game of golf there are no mulligans or do-overs in your case. Once the Industrial Commission rules or the case is resolved that s it. So before that happens sometimes it pays to hire the attorney you wish you d hired the first time around. 7

9 If you do decide to change attorneys there s a couple of things to keep in mind. First, you will only pay one attorney s fee. This fee will be split at the end of the claim between the two different lawyers. You don t pay each attorney. Whether you think the first attorney deserves a fee or not it s likely that he s going to get paid for the time he put in on the file. Second, the attorney must give you your file. He or she cannot charge you for this or charge you to make a copy of it. If the attorney wants to keep a copy of the file he can do so but he cannot charge you for the copy. Third, the attorney must promptly file a Motion to Withdraw with the Industrial Commission. Technically, the Industrial Commission must approve this motion and no new attorney is going to be able to get anything done until the motion is approved. Who sets attorneys fees? By law, all fees for workers compensation cases must be approved by the Industrial Commission. It is illegal and unethical for a lawyer to take a fee outside of the Commission s approval. A lawyer can ask for whatever he wants but the Industrial Commission approves fees of 25%. It is extremely rare for the Industrial Commission to approve a fee request higher than that. We ve never seen an instance that the Industrial Commission approved a 33% fee request for an attorney going to a hearing. This brings us to a delicate topic. We know that some attorneys have Fee Agreements that says their fee is 25% if the case settles at mediation or before a hearing but that the fee will be 33% if the case goes to a hearing. We have never seen the Industrial Commission approve such a request. Why would an attorney put that into a fee contract? We cannot state what goes through other attorneys minds so we cannot answer the question. But consider this situation: an injured worker has a mediation and the defense offers $30, If you took the settlement, your attorney would get $7, and you would get $22, Mediations are relatively easy but hearings are a lot of work for an attorney. We actually like hearings because they are a challenge. And our firm goes to hearing a lot more frequently than many of our competitors do. But hearings are clearly a lot of work. If the attorney wants to avoid going to a hearing he can pull out the fee contract and tell you that if he goes to a hearing and gets the same result as at the mediation you will pay a $10, fee and only get $20, Thus a Fee Agreement that calls for a higher fee if the case goes to a hearing could easily be used to pressure a client into a lower settlement that allows the attorney to avoid a hearing. What makes us a little uneasy about this is that while the 8

10 client doesn t know any different the attorney likely knows that it is extremely unlikely that the higher fee would be approved by the Industrial Commission. As such we question whether it is appropriate to even put it in a Fee Agreement particularly when it could be, or appear to be, misused. We want to hasten to point out that this is true for worker s compensation claims only. It is very common in personal injury and medical malpractice claims to have two levels of a fee. And we certainly agree that a hearing is a lot of work. But we ve seen more instances of this type of Fee Agreement being used to browbeat a client than we ve ever seen of it being used to help a client. While the Industrial Commission generally approves a fee of 25% there are a number of circumstances in which we ask for less than that amount. I just got hurt. What s the first thing I should do? First thing is to shake yourself and make sure you re more or less ok. Second, make a note of who may have been a witness just in case you need support later on. Third, tell your supervisor. Tell them out loud but back this up with something in writing. That could be a formal report or just an after the fact. Fourth, go to the doctor. Be absolutely clear how you got hurt and that this occurred on the job. Fifth, follow up with your employer to make sure this went to their insurance company. You should get an Industrial Commission Form 19. This is the ONLY proof that the insurance company has acknowledged your claim. Sixth, you should file a Form 18. Be very careful about the Form 18. We recommend talking to an attorney before you file. Understand that simple errors like date of accident can come back to haunt you later on. The Form 18 needs to be perfect. What is an accident? An accident is legally defined as an interruption of the normal work routine. Most commonly this is a slip, trip, or fall or something like that. However an interruption of the normal work routine includes moving an unusual object, or a heavier than normal object, or moving it at a faster pace than normal, or any other variation which is NOT part of the normal work routine. We have had a lot of success in showing injured workers and more importantly where an accident occurred. Interruptions of the normal work routine occur far more often than you would realize. 9

11 What is an occupational disease? An occupational disease is a condition that disables you due to exposure to a hazard to which the general public is not equally exposed. That s confusing, isn t it? In the old days it was coal miners getting black lung, or workers in a cotton mill breathing in cotton fibers. Nowadays the most common occupational diseases are repetitive motion injuries like carpal tunnel syndrome and rotator cuff tears. It is possible to win a back injury as an occupational disease but it s tough to do so. There are special rules for back claims. This gets very specific, very fast. Succeeding with these claims is pretty difficult unless you are very experienced in the law. I m injured why aren t I getting benefits? In North Carolina you need to prove two things to win a workers compensation claim. First, that you were injured. Second, that the injury occurred while working as a result of either an accident or an occupational disease. So if you re just doing your normal work and your knee gives way or your shoulder pops you will still have to prove that this was the result of an accident or an occupational disease. This is why it s important to speak with an attorney early on All too often an adjuster has gotten injured workers to say that they were just doing their normal work. Next thing you know the claim is denied. It isn t right, but it happens. Because the system moves very slowly, our approach is to be aggressive right away. If the claim is denied, looks like it s going to be denied, or if the adjuster is dragging her feet then we don t think there is any time for delay or hesitation. We immediately file a request for a hearing and get the Industrial Commission to push the adjuster into action. Why? In our experience injured people who get treatment are able to return to work successfully and more quickly than those who don t get treatment. If your goal is to get better and back to work then we are the attorneys for you. That s our goal and we work long hours to prevent adjusters from dragging their feet. Why should I have to submit to a drug test? You shouldn t. But it s the law. We don t like it either but there s nothing really to be done about it. Without condoning the use of illegal drugs or what is more of an issue the use of prescription medicine which was not prescribed for you we don t see what the relationship is between what happened at a party two weeks ago and how your coworker drove a forklift into you yesterday. Obviously if you were injured because you were drunk or stoned you re not going to get benefits and your employer shouldn t have 10

12 to pay them. But, the mere presence of a drug in your system without a shred of evidence of when you ingested it? That s a bit much. We ve seen cases where an adjuster denied claims when an injured worker took his wife s painkiller while waiting for an initial doctor s visit. Why? Because he failed the drug test. Although just about everyone does it it s illegal to take a prescription medicine unless it was written specifically for you. In fact, within the last hour that I wrote this my father-in-law took a Cipro, which was prescribed to my wife. This isn t exactly what the war on drugs was supposed to lead us to. Just because you ve partied a bit in the past doesn t mean you shouldn t file a claim if you were legitimately hurt. But it does give the adjuster some room if she s inclined to deny your claim for strategic reasons. We ll need to establish that there was no link between whatever was in your system and what happened on the job. What medical treatment am I entitled to? Under our law you are supposed to receive all medical care reasonably intended to affect a cure, provide relief, or lessen the period of disability. The medical care doesn t have to do all three any one will do. So even if you still aren t going to be able to return to work you are entitled to treatment that will make you better or even just feel better. In our experience this is a point where adjusters frequently deny treatment. They may be happy to spend money if it s going to get you back to work. But when you are still going to be drawing weekly checks they often balk at authorizing the necessary and appropriate treatment. So don t be surprised if the adjuster is suddenly less cooperative with you. The Industrial Commission has systems in place for getting medical treatment approved. It surprises us that more attorneys do not utilize this process but we file requests for expedited medial hearings constantly. Can I just go see my own doctor? Yes you can, at your expense. If your employer tells you that you re not permitted to this, they are giving you totally wrong information. The insurance company only gets to direct your medical care if they formally accept the claim. That means they ve filed a Form 60 with the Industrial Commission. Be warned, however, that the Industrial Commission often pays little attention to what your family doctor has to say. The idea is that the doctor may go out of his way to take your side in a dispute. That probably does occur sometimes but not as often as the state legislature thinks and, in our experience, far less often than company doctors who defer to the interests of an employer. But if your family doctor will make a referral to an 11

13 orthopedist when the employer will only send you to Urgent Care it may be in your interests to go that route. Call us and we ll push the Industrial Commission to get you reimbursed. In particular it can make a lot of sense to see your own doctor and put it on your health insurance if your employer and their adjuster are dragging their feet on sending you to a doctor. Do I have to go to the company doctor? Under the laws currently in effect, the answer is yes. We agree with you that there certainly appears to be a cozy relationship between an employer and a doctor who gets a substantial amount of business (in the form of a constant and steady supply of patients) from that employer. In a lot of settings this would be an unacceptable conflict of interest. Despite this, the current laws permit it. You probably don t have to worry that the company doctor is going to ignore your medical condition just for the fun and profit of your employer. But you should be aware that the doctor may have an agreement in place with your employer not to remove anyone from work. They will also answer any questions the employer may have off the record. We ve seen instances when company doctors require injured workers to waive any and all confidentiality rights in order to be seen. However, both of these occur with other doctors who treat a lot of workers compensation claimants even when there is no formal relationship with an employer or insurance company. Is there a surefire way to ruin my claim with the doctor? Actually, yes there are a couple of great ways to do this. The biggest problem is exaggerating your symptoms. We ve met very few people who were out and out liars about their situation. Seriously, about three or four out of several thousand. What we do see is that clients are trying to get the attention of doctors who seem to be ignoring them. It s sort of a I have to shout loud to get his attention approach which shouldn t be necessary but, unfortunately, sometimes is. In this approach sometimes the client is overstating things to underscore how much of a problem he is having. It s important to be very specific about what hurts and when. Statements like it hurts all over or my pain is an 11 on a scale of 1 to 10 are counterproductive. Keep in mind that many of the doctors treating workers compensation claimants are a bit skeptical of injured workers. It s really easy for them to just dismiss you as an exaggerator. Don t fall 12

14 into that trap. We recommend that injured workers be prepared for their doctors visits by being able to give very specific information about what hurts, when, and what makes it feel better. While in a sense you know your body better than the doctor does, the doctor knows more about bodies than you do. Saying it hurts all over all the time does nothing to help him determine what s wrong. It does suggest that you re not completely accurate though. Why won t the doctor just give me a (MRI, injection, prescription, etc.)? Most doctors have an agreement with adjusters that no treatment will be done without prior authorization. And a lot of adjusters are very, very slow to approve treatment. Adjusters often see injured workers as crazy people who go running to the doctor hysterically over the smallest little things. We all know someone who is like that. A lot of ailments like the flu, a cold, and a sprained ankle will go away in time without any treatment. But unlike your crazy aunt, most injured workers want to avoid any controversy and only report claims when absolutely necessary. So while a case of the sniffles will go away in time that s not the case with ruptured disks, torn rotator cuffs, and fractures. But many adjusters seem to act like they will. Or perhaps it s just that they assume all injuries are strains and sprains that will spontaneously cure themselves if ignored for a few weeks. If you re really going to get better over time then why pay for a costly MRI? In those cases it s really the adjuster who may be tying the hands of the doctor and not the doctor who is the issue. If an adjuster has refused to authorize the last 25 MRIs recommended by a doctor he may not even bother recommending another unless (a) there are extremely acute symptoms or (b) it s been eight weeks and you haven t spontaneously cured yourself in the meanwhile. If I hurt my back how come I cannot feel my toes? You ve probably heard the phrases slipped disk or pinched nerve before. What happens is that the main nerves exiting the spinal column get pushed on by swelling tissue, a disk, or disk matter. These, and other, nerves are vulnerable when they go through small spaces but have little soft tissue protection. So, if a nerve gets pinched by a piece of disk material or bit of vertebra, wherever that nerve goes you are likely to feel pain or numbness all along it. For example, we see a lot of injuries at the L3-L4, L4-L5, and L5-S1 areas of the low back. These refer to the 3 rd, 4 th and 5 th vertebrae in the lumbar spine (your low back) and the 1 st vertebra in the sacral spine (your tailbone). The nerves involved here go down the legs. If you have burning pain down the middle of the back of 13

15 your legs you may well have an injury to the S1 nerve. Similarly, if the sole of your foot and your toes are numb you may have an injury to your L5 nerve. When you talk to a doctor you need to be clear on where you hurt and when. If the pain is strictly in your back/buttocks and not down your legs be clear about this. On the other hand if the pain extends down your legs it will help your doctor if you can be clear and specific about where precisely it hurts. I don t think the doctor is really paying attention to me he just taps my knees and ankles and a few other things. It would be nice if a doctor could stop and explain everything he is doing and examining while he was in the process of doing the examination. Unfortunately in this day and age when a doctor may be seeing dozens of patients a day he may not have time, or take the time, to do so. We re lawyers, not physicians or doctors, but after having read thousands of pages of medical records here s an educated guess as to what the doctor is doing. Damage to the sciatic nerve, the main nerve exiting the spinal column in the low back and going down the legs, will often result in certain abnormalities which a doctor can spot while doing a physical examination. These include weakness when bending the knee, loss of the ability to rotate your foot up or down (thus walking on your toes or heels), loss of reflexes to the knee and ankle, difficulty bending forward or backward at the waist, and pain when lifting your straightened leg up off the exam table. In this situation what the doctor is looking for is objective evidence to confirm or supplement your subjective reports of an injury and subsequent pain. What s the point of physical therapy? The goal of physical therapy, or PT, is to improve your movement, improve your physical functioning, and reduce pain. It is not a stall that a doctor necessarily insists on prior to a surgery although it may seem like it some times. Why is that? A lot of injuries can be repaired with physical therapy. It s non-invasive, and although it can cause some temporary pain and swelling it is effective in some situations. Many people are cured with physical therapy and are quite happy. Some injuries, though, require much more. It s pretty common, however, that your doctor will order PT prior to recommending surgery. If you re one of the lucky ones whose problems are solved with PT then you re good with this. If you re one of the ones who requires surgery well PT 14

16 can be frustrating because you feel like it s a waste of time. In most situations there isn t any harm in trying the conservative approach first but it can be frustrating. Following a surgery PT is often necessary to help rebuild your strength and prepare you to return to work. And while PT often hurts during and afterwards you ll likely hear your therapist explain that there is a difference between hurt and harm. As irritating as that is when you hurt it s true. Who is this nurse going to the doctor with me? The insurance company can assign a nurse case manager or a rehabilitation nurse to be a go-between with you, the doctor, and the adjuster. In theory this is fine. However, many, if not most, of these nurses work almost exclusively for the insurance companies. In fact some of them work in cubicles right next to the adjuster. In that kind of situation it s hard not to believe that the nurse is going to put your interests ahead of those of her employer. We aren t saying all nurses are bad people they aren t. But human nature is well, human nature. We ve seen documented cases of nurses altering Functional Capacitiy results, turning a blind eye to known inaccuracies in job descriptions, even coordinating schedules with private investigators. What is Maximum Medical Improvement? Maximum Medical Improvement, or MMI, is the point where a doctor says you are as good as you re going to get. In all honesty you ll probably get a bit better over time, and there s always a chance you ll decline some. It s when the doctor thinks he s done what he can do and it s time to cut you loose. At that point, you are eligible to a permanent award based on either loss of earnings or permanent injury to you. In an accepted claim, this is the point where an adjuster will want to close her file. Even if you ve not had an attorney up to that point it s an excellent time to give us a call and get us to walk you through your options. If there s a single point in your case where the adjuster has no obligation to explain all of your legal options to you this is it. What she ll propose is quite likely just a fraction of what you could receive. Every case is different but yours is certainly worth a thirty-minute phone call. We don t charge for this and you ll have a far better idea of what your claim is actually worth. What happens with my medical treatment at Maximum Medical Improvement? You are still entitled to medical treatment if your doctor says you will continue to need this. While maximum medical improvement is supposed to mean what it says the end 15

17 of the healing period, or when you are as good as you re going to get, it often really means the treating physician doesn t have anything more to offer. This doesn t mean that you ll never see a doctor again as much as the adjuster might hope that s what it means. If you need to see a doctor quarterly or yearly your doctor should say so. If you are going to continue on medication your doctor should say so. And if you are going to require ongoing therapy of some type your doctor should say so. Your adjuster is responsible for all of this. Many times, adjusters have told injured workers that workers compensation didn t have to provide for medical treatment or prescriptions as of the date of maximum medical improvement. This is inaccurate. It s possible that the adjuster really believes this or it s possible that the adjuster believes this is what the law should be. But it s not what the law is. If necessary, you are entitled to medical treatment for this condition indefinitely even if that s for life. What you need to look for when the doctor is declaring you to be at maximum medical improvement is (a) what additional treatment, evaluation, or medicine do you need and (b) who does your doctor think should provide it. We see a lot of instances where the doctor intends there to be a continuing source of prescriptions but doesn t make a specific referral to your family doctor or another physician to be writing those prescriptions. Without that referral, don t be surprised if the adjuster refuses to pay for prescriptions written by your family doctor even if they are identical to what her hand-picked doctor had written for you just the month before. What are Permanent Partial Impairment ratings? Permanent Partial Impairment ratings are given by the doctor at maximum medical improvement. These are intended to document the loss of use you have to your injured body part. The legislature has assigned a value, expressed in weeks, to your body: Back 300 weeks Arm 240 weeks Hand 200 weeks Thumb 75 weeks First finger 45 weeks Second finger 40 weeks Third finger 25 weeks Pinkie finger 20 weeks Big toe Other toes 35 weeks 10 weeks 16

18 Foot Leg Eye 144 weeks 200 weeks 120 weeks A week is one week of your compensation rate the amount you were paid each week while out of work. There are a few things to keep in mind about ratings. First, ratings are the primary means of compensating or settling with an injured worker who can return to his or her old job or make just as much money as before. If you aren t able to return to your old wage-earning levels don t worry about your rating. Second, if the adjuster doesn t like the rating that her handpicked doctor gave you then she can send you for a second opinion on the rating. On the other hand, if we don t like the rating we can get a second opinion with a doctor of our choosing and the adjuster has to pay for it. Third, the rating is usually paid out week by week, not in a lump sum. The adjuster may do it in a single payment but it s likely she won t and she s not require to do so. Fourth, as with the rest of the money you receive from workers compensation this is taxfree money. How are my physical restrictions determined? There is no hard and fast rule as to how the doctor gives you restrictions. Some doctors will order a Functional Capacities Evaluation. They will review the recommendations from the FCE and either adopt those as your permanent restrictions or modify them. Other doctors will use their personal judgment regarding what you can do. Many of these doctors scoff at the increased use of FCEs and are confident they can accurately assess safe levels of physical activity. A third group of doctors are inclined to give you no set restrictions at all but encourage you to watch yourself or find another line of work. These doctors are undoubtedly well intentioned but often create real problems in workers compensation claims. As we ve heard, this set of doctors explain they are concerned that giving you written restrictions will handcuff you indefinitely, especially if you are looking for work with a new company. On the other hand, we think it is a little naïve to expect an employer to accommodate a worker s request for job modifications when the doctor hasn t specifically said the injured worker needs it. 17

19 An example of where this third group can inadvertently create problems occurred for us when a doctor released our client without any restriction in writing. Our client insisted that the doctor had told him to find a different line of work. Based on this, the client did not return to work the next day. Not showing up for work he was summarily terminated. The insurance adjuster then moved the Industrial Commission to cut off his weekly checks on the basis that he had no documented disability. We took the doctor s deposition and he seemed astonished. But, I told the rehabilitation nurse that he could not return to his old job. I just didn t want to limit him in terms of his future options. When asked why this didn t appear anywhere in her report the nurse simply replied that she d asked advice from the adjuster. The adjuster told the nurse to leave it out of the report, as she wanted to terminate the injured worker s checks. The rehabilitation nurse went along with the adjuster s request. I am NOT depressed It would be difficult to overstate the number of clients who have come to us over the years frustrated when a doctor or therapist suggested they were depressed. In our society depression is often seen as a character flaw, a weakness, or an excuse. Without doubt, these injured workers are genuinely offended that someone is suggesting that it s all in their head. On the other hand a prominent psychiatrist who deals with a lot of injured workers testified in a deposition that 80% of people who suffer from chronic pain, (defined as pain lasting for at least six months), will develop clinical depression. Our bodies are just not made to deal with high pain levels for that long of a time. And the fact that former co-workers, adjusters, and rehabilitation nurses are often less than sensitive to an injury that seems to go on indefinitely doesn t help. When speaking with doctors about this most of them have readily agreed that it s very rarely JUST in someone s head. But they do cite numerous studies, which confirm what the psychiatrist detailed and note that those studies often suggest that if the mental outlook improved then the patient s capacity to cope with the pain would improve. That doesn t mean the pain goes away it doesn t. It s just that it s easier to deal with it and function in spite of it. We ve long recommended that our clients develop at least an informal network of people who can provide emotional support as you work through this. That s all the more true when you don t get better on schedule, when you cannot return to your old job, or when financial pressures get increasingly difficult. This may be family (although it s already 18

20 tough on family), a couple of close friends from church, or a counselor. The important thing is to not try to tough it out alone. We re all human and when you have a difficult workers compensation case it s not time to try to be superman. What is conservative treatment? One medical lexicon defines conservative treatment as a course of therapeutic action designed to avoid harm, with less possibility of benefit than more risky options. What s that mean to you? At the heart of it conservative treatment is an effort to make you better without taking drastic, immediate steps like surgery. Yes, a surgery could possibly make you much better than can physical therapy but PT is a lot less risky than surgery. And if PT fails surgery is still an option. Every doctor is a little different in their view of how much non-invasive treatment needs to be attempted before considering surgery. Note, however, that the notion of conservative treatment as a potential cure fits like a hand in the glove with an adjuster s mentality of not paying for anything expensive right away. As a practical matter, what conservative treatment will mean to you is that your doctor and your adjuster will likely go with x-rays well before they do an MRI. Likewise, they will opt for physical therapy and epidural steroid injections before they suggest surgery. Each of these is intended to help you heal and does so while putting you at less risk than with a surgery. And coincidentally they cause the insurance company less money. What s the difference between an MRI and an X-ray? X-rays are inexpensive, quick, and usually done right in the doctor s office. They use a theoretically dangerous ionizing radiation to create images of bones and dense tissue. In the small doses that you receive during a few x-rays there s probably nothing to worry about. An MRI is expensive (30-40 times as expensive as an x-ray), takes about 30 minutes, and the equipment is often not available in the average doctor s office although more and more orthopedic surgeon s offices are equipped with them. An x-ray is far better than an MRI at detecting fractures in a bone, but an MRI is far better at spotting damage to a soft tissue like a ligament, tendon, or disk. As a practical matter, workers compensation adjusters like to avoid the expense of an MRI unless other options have been exhausted first. This doesn t mean there is no way that the adjuster will promptly authorize an MRI. If there is overwhelming evidence of a disk injury she may well go ahead and do it. But 19

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