How To Get A Medical Checkup In South Carolina

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2 Workers Comp Survival Kit South Carolina Frequently Asked Ques0ons 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 LAWYERS... 4 HOW DO I KNOW IF I NEED A LAWYER?... 4 WOULDN T I GET MORE MONEY IF I DIDN T HIRE AN ATTORNEY?... 4 IF I HAVE A LAWYER WILL I ONLY SPEAK TO A PARALEGAL? CAN I, OR SHOULD I, CHANGE LAWYERS?... 5 WHO SETS ATTORNEYS FEES?... 6 I JUST GOT HURT AT WORK... 6 I JUST GOT HURT. WHAT S THE FIRST THING I SHOULD DO?... 6 WORKERS COMPENSATION DEFINITIONS... 6 What is an injury by accident?... 6 What is an occupa6onal disease?... 6 What is repe66ve trauma?...7 I M INJURED, WHY AREN T I GETTING BENEFITS?... 7 DEALING WITH YOUR DOCTORS... 7 WHAT MEDICAL TREATMENT AM I ENTITLED TO?... 7 CAN I JUST GO SEE MY OWN DOCTOR?... 7 DO I HAVE TO GO TO A COMPANY DOCTOR?... 8 IS THERE A SUREFIRE WAY TO RUIN MY CLAIM WITH THE DOCTOR?... 8 WHY WON T THE DOCTOR JUST GIVE ME A (MRI, INJECTIONS, PRESCRIPTIONS, ETC.)?... 9 IF I HURT MY BACK HOW COME I CANNOT FEEL MY TOES?... 9 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 conserva6ve treatment? What is the difference between and MRI and an X- RAY? What is evidence- based medicine?... 15

3 What is agendant care? What is pain management? What is a Func6onal Capacity Evalua6on? What is symptom magnifica6on? 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 SO IMPORTANT ABOUT A FORM 50? 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? MY HUMAN RESOURCES PERSON SAID I HAD TO USE MY VACATION AND SICK TIME BEFORE THEY WILL PAY ME ANYTHING.. 23 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 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? AM I GOING TO BE ABLE TO GET ANOTHER JOB WHEN THIS IS ALL OVER? IF I INJURE MYSELF AGAIN WHAT HAPPENS?

4 THE WORKERS COMP LEGAL PROCESS WHAT IS THE SOUTH CAROLINA INDUSTRIAL COMMISSION? WHAT ARE COMMISSIONERS? WHAT IS THE FULL COMMISSION? WHAT IS A MEDIATION? WHAT S THE DEAL WITH THIS RECORDED STATEMENT? 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 GET SOCIAL SECURITY DISABILITY AND BE ON WORKERS COMPENSATION? WHAT S THE DIFFERENCE BTWEEN GETTING A RATING AND HAVING A CLINCHER? WORKERS COMPENSATION IS GOING TO TAKE CARE OF ME FOR LIFE, RIGHT? 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 experienced attorney within just a few minutes. So call us! One of our staff will take a few notes and get an attorney on the line. The worst case is that we ll set an appointment to call back in the next hour or so. 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. The South Carolina Workers Compensation Commission has to approve all of our fees. They normally approve a fee of 33 1/3%. 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 an attorney within just a few minutes of calling. Unlike a lot of other Rirms, 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 prorile lawyers in the Rirm. Our rule of thumb for needing a lawyer: 4

6 1. The claim is denied. 2. The adjuster is not paying the correct amount of weekly benerits 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. 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 speciric solutions and ideas that we can tailor to your case if you Rind yourself in that predicament. So give us a call. 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 Right a trafric 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. 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 Rile, 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 speciric time later in the day or Rirst 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 ofrices. But we think it is perfectly reasonable for you to be able to call them up and set an 5

7 appointment for either a face- to- face meeting or a telephone call at a speciric time. And you should be able to expect them to keep that appointment. Can I, or should I, change lawyers? You can but shouldn t necessarily do so without careful thought. Under South Carolina ethics rules we cannot speak to you even to give you a second opinion or a fresh look if you are currently represented by an attorney. Who sets attorneys fees? By law, all fees for workers compensation cases must be approved by the South Carolina Workers Compensation Commission. The Commission approves fees of up to 33 1/3%, except in certain instances. While the Commission generally approves a fee of 33 1/3% there are a number of circumstances in which we ask for less than that amount. I just got hurt. What s the Iirst 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. Sixth, you should Rile a Form 50. Be very careful about the Form 50. We recommend talking to an attorney before you Rile. Understand that simple errors like date of accident can come back to haunt you later on. The Form 50 needs to be perfect. What is an injury by accident? An injury by accident is legally derined as an unlooked for and untoward event which is not expected or designed by the person who suffers the injury Most commonly this is a slip, trip, or fall or something like that. However a slip, trip or fall is not required, an unexpected result is considered an injury by accident, in other words, the injury itself can be an accident. Accidents occur far more often than you would realize. What is an occupational disease? An occupational disease is a condition that disables you due to exposure to a hazard in excess of those ordinarily incident to employment. That s confusing, isn t it? In the 6

8 old days it was coal miners getting black lung, or workers in a cotton mill breathing in cotton Ribers. Occupational diseases can also be diseases involving the respiratory conditions or skin conditions. In order to succeed in an occupational disease case, you must have disability, or the inability to earn the same wages that you were receiving at the time of your injury, in the same or any other employment. What is repetitive trauma? Repetitive trauma means an injury which is gradual in onset and caused by the cumulative effects of repetitive traumatic events This means that repetitive activities that occurred while you were engaged in your job caused the injury. A common example of a repetitive trauma claim is carpal tunnel syndrome. I m injured why aren t I getting beneiits? In South 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. 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. 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. 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 anyone 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. So don t be surprised if the adjuster is suddenly less cooperative with you. The South Carolina Workers Compensation Commission has systems in place for getting medical treatment approved. 7

9 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. Be warned, however, that the South Carolina Workers Compensation Commission may not pay as much 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 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 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 help ask the 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 conrlict 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 prorit 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. 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 sureiire 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 8

10 sometimes the client is overstating things to underscore how much of a problem he is having. It s important to be very speciric 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 into that trap. We recommend that injured workers be prepared for their medical visits by being able to give very speciric 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 Rlu, 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 snifrles 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 9

11 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 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 speciric 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 rerlexes to the knee and ankle, difriculty 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 conrirm 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 10

12 who requires surgery well PT 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 Rirst 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 Rine. 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. It is important that your attorney speak to the nurse case manager, and set out expectations for her involvement in your case. We ve seen documented cases of nurses altering Functional Capacity 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 Rile. 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 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. 11

13 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 inderinitely 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 speciric 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 220 weeks Shoulder 300 weeks Hand 185 weeks Thumb 65 weeks First Ringer 40 weeks Second Ringer 35 weeks Third Ringer 25 weeks Pinkie Ringer 20 weeks Big toe 35 weeks Other toes 10 weeks Foot 140 weeks Leg 195 weeks Hip 280 weeks Eye 140 weeks A week is one week of your compensation rate the amount you were paid each week while out of work. 12

14 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 has injured only one body part. Second, once you reach maximum medical improvement and have a rating, the adjuster will most likely Rile a Form 21 to request a hearing with the Commission regarding payment of your rating and to try to stop your weekly checks, if you are still receiving weekly checks. This hearing will be scheduled very quickly. Third, you should get an evaluation by another doctor for your rating. The rating can be increased by the South Carolina Workers Compensation Commission at the hearing, so having an evaluation by another doctor regarding your permanent impairment and any other medical issues will be very helpful. Fourth, as with the rest of the money you receive from workers compensation this is tax- free 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 conrident 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 Rind 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 inderinitely, 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 modirications when the doctor hasn t specirically said the injured worker needs it. I am NOT depressed! It would be difricult 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 Rlaw, a weakness, or an excuse. 13

15 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 testiried in a deposition that 80% of people who suffer from chronic pain, (derined 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 inderinitely 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 conrirm 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 Rinancial pressures get increasingly difricult. This may be family (although it s already 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 difricult workers compensation case it s not time to try to be superman. What is conservative treatment? One medical lexicon derines conservative treatment as a course of therapeutic action designed to avoid harm, with less possibility of benerit 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 Rits 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 14

16 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 ofrice. 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 ofrice although more and more orthopedic surgeon s ofrices 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 Rirst. 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 don t be surprised if there is a delay. This delay can be lessened if you let us push the issue down at the Industrial Commission. What is evidence based medicine? This could be answered on two levels. Mind you our answers, being those of workers compensation lawyers, may not be the answers which doctors would give you. The Rirst level, that of medical journals and the like, evidence based medicine is an attempt to make medicine more of a system using the current best evidence in making decisions about the care of individual patients. On the second level, the level of evidence based medicine as it seems to be practiced by doctors who speak at Industrial Commission conferences and treat a lot of injured workers is to put great emphasis on all the scientiric aspects of the examination and signiricantly less emphasis on what a patient is telling them. At least that is what is reported to us by many patients. What it comes down to is a lot of injured workers are really lousy at explaining how they got hurt and where precisely they hurt and what makes the pain increase or decrease. Accordingly, their complaints have little value in terms of science. On the other hand physical examinations and tests like x- rays, CT scans, and MRIs are accorded great scientiric value. A doctor may discount what you are telling him if he cannot conrirm it scientirically. That sort of stinks if your adjuster won t authorize the MRI, which would provide 15

17 that conrirmation. In terms of putting evidence based medicine into practice for treatment options a doctor may emphasize the statistical results of other patients around the world and less on the potential benerit in a given patient. The problem with all this is that if your body doesn t respond to a course of treatment like 95% of the rest of the world does it doesn t make you a liar. It means you re an exception. Exceptions are known to exist. It s unfair to dismiss a patient just because they are an exception. In a perfect world evidence based medicine sounds like a great idea. In the real world of competing interests and power struggles we ve seen it misused and sometimes does nothing other than providing a fancy name for an excuse to not pay attention to you. What is attendant care? In its simplest form it s what it sounds like: someone who attends to, or pays attention to you. When you ve got the Rlu it s good to have someone who will check on you, get you some medicine, and bring you something to drink when you want it. That s what loved ones do. Now say you had a total knee replacement and cannot walk or stand for any meaningful length of time. And throw into the set of facts that you are single and live alone. You need someone to take care of you. There is no way you are going to heal if you are having to abuse yourself taking care of your everyday activities. The adjuster needs to pay for attendant care. It s part of getting you better just like therapy, medications, and surgery. Let s take this scenario a step further. Everything is the same except that you are married. What s the adjuster going to do? In at least 99% of the cases we ve handled the adjuster expects your spouse to take care of you. If that means he or she takes time off of work without pay or uses up vacation or Family Medical Leave Act time the adjuster doesn t really mind. We think this is wrong. Just because you have family who loves you doesn t mean the insurance company shouldn t pay for your medical care. Keep in mind, though, that the compensation rate is what a home health aide would get paid usually about $10.00/hour even if that s less than what your spouse makes on their job. Every little bit helps though. What is pain management? Wikipedia gives as good a derinition as any: Pain management is a branch of medicine employing an interdisciplinary approach for easing the suffering and improving the quality of life of those living with pain. That s well and good but what does it mean in the context of workers compensation? 16

18 We usually see pain management coming when a surgeon is done with you but you still have problems functioning and with pain. The surgeon may see his role as ending after the operation. It is up to a different specialty to handle the long- term results and recovery from this. While that could seem like the surgeon is just handing you off to someone else it s not that simple and it s not that callous. Our bodies are not designed to put up with pain for that long. As much as we all want to see people get 100% better sometimes that doesn t happen. People learn to live with pain. They do this sometimes with medications, sometimes with therapy and exercise, sometimes with counseling, and often with a combination of all that. Truthfully, managing all this is a skill set completely different than performing surgery. Clients shouldn t feel neglected or abandoned when their surgeons refer them to pain management. What we do see happen, though, is that pain management specialists can seem to exhibit a certain sense of prejudice. A lot of injured workers have reported that their pain doctors view them skeptically. It s almost as if it s ok to be in pain management if you have cancer, but if you are there after a failed back surgery you should buck up and stop your whining and nothing cures like some tough love or a kick in the butt. If true, such an approach is reprehensible in our minds. Our best advice to clients in this predicament is to avoid playing into stereotypes and prejudices. As we ve said repeatedly it is important to retain your credibility with your doctor. That means your complaints and self- assessments should be accurate, clear, and not exaggerated. It s important to note that we ve seen plenty of medical records with references to non- organic pain or non- physiological pain and symptom magnirication. Many of these doctors are clued in for evidence that you are not being accurate or honest. When it comes to an issue like pain, which cannot be measured with a thermometer or an MRI, your word has to be 100% solid. What is a Functional Capacities Evaluation? A Functional Capacity Evaluation, or FCE, is theoretically a test that fairly and accurately evaluates a person s capacity to work at certain levels over a lengthy period of time. There are a number of different FCE systems in place but they share certain things in common. First, a therapist will likely explain what is expected and tell you that you do not need to perform any tasks that you feel you cannot safely do. She or he will interview you to conrirm what your injury is. Second, the therapist will likely perform a series of physical tests moving you around and asking you to do things while distracting you by speaking to you or having you 17

19 answer questions. The purpose of this is to see if you unconsciously move without pain when you have already told them it hurts to move. Third, the therapist will perform an extensive number of validity tests. Some, such as a test that tests your ability to squeeze a handgrip, are designed to see if you are giving full effort, have a signiricant support among medical literature. Others, such as a series of tests given to people complaining of back pain, have been repudiated by the designer of the test. Fourth, the therapist will prepare a report which will be given either to your doctor or to your rehabilitation nurse. While we have seen an instance of a rehabilitation nurse falsifying the FCE results before giving them to the doctor, we believe this to be a rare occurrence. An FCE can be very benericial to an injured worker to the extent that it demonstrates to a doctor what you can and cannot do. The downside of the FCE, in our experience, is that the therapist has a tremendous amount of Rlexibility in deciding if you ve given full effort. Nothing, we repeat, nothing will destroy your relationship with a doctor like a FCE report which says you gave less than full effort. A substantial amount of literature supports the theory that an FCE should be performed twice. It s well documented that a person s performance may appear submaximal strictly due to the unfamiliarity of the situation. We ve personally had many clients whose second performance has no trace of submaximal effort reported even though the overall demonstration of strength did not change one bit. Finally, many believe that indisputable evidence such as temperature, blood pressure, and heart rate are more reliable indicators of effort than the subjective impression of therapists who market their testing to workers compensation adjusters. What is symptom magniiication? Literally, it is the reporting of symptoms that are greater than would be expected. But that is a very unsatisfying derinition. In the context of a workers compensation claim it s just about the worse thing to be stated short of calling someone an outright fraud. The problem with labeling someone with such a drastic term is that in medical literature it is clear that the tendency to overstate symptoms may be unconscious or conscious. Yet in every day usage it has come to mean intentional lying. Just because there have been a couple of people, among the tens of thousands of injured workers, who exaggerated their symptoms doesn t mean every workers compensation claimant is lying about their condition. Yet some health care 18

20 professionals who work closely with the insurance adjusters seem to take a guilty until proven innocent view. It s simply not fair if they pre- judge you before they ve even done a physical examination. What can you do about this? We ve said it before and we ll say it again: avoid dramatic overstatements of pain. They never do you any good and can often cause a lot of unintended problems. What is secondary gain? Secondary gain is a psychological term that refers to a motivating factor that a patient has in reporting symptoms or complaints of pain. More simply put, secondary gain is an outside reason or benerit to complain of pain or symptoms. For instance if you tell your doctor I think I broke my arm because the bone is sticking out of my skin you obtain medical treatment. You also have a secondary gain in that you may get paid time off of work or even a little extra attention from your family. The phrase secondary gain in its accurate use does not imply that the patient even recognizes or realizes the gain that is being given to them. SpeciRically, it does not require or include any type of conscious thinking on the part of the patient. Unfortunately, in workers compensation circles the term secondary gain is often interchanged with the term malingering. Malingering involves an intentional lying about a condition in order to obtain benerits. In a workers compensation claim malingering can, and obviously should, be avoided but secondary gain cannot be. That s why we are offended when rehabilitation nurses and some doctors roll their eyes when they use the term secondary gain. Many of them act like you receiving surgery to repair an injury you suffered due to your employer s negligence is a sign that you re a bad person. We think that is unfair. Can my employer make me do a fake job? We don t like it one bit, but the answer is probably. KPH Add If you have light duty work restrictions, then the employer can ask you to come to work and do just about anything as long as it is within your doctor s restrictions. What if I had two jobs when I got hurt? This is fairly common. Your average weekly wage is based on what your earned on the job where you got hurt. If you worked more than one job when you were injured, your average weekly wage should include wages from your other job as well as the one in which you were injured. 19

21 My employer is sending me to the doctor. It s an accepted claim, right? No! It s very common for an employer and/or an insurance company to send you to their handpicked doctor in hopes of getting a report from him saying you weren t really hurt, or that you can work, or some other opinion which is favorable to them. If the doctor says something that they don t like expensive evaluations like an MRI or taking you out of work the defendants turn around and deny your claim. Your employer s only responsibility is to pay for the authorized visits with this doctor. They have NOT accepted your claim. If your company or their adjuster is telling you to go to a speciric doctor you should ask them if they ve accepted the claim. What is so important about a Form 50? A Form 50 is the form you use to formally open a Rile at the South Carolina Workers Compensation Commission. Just because your employer or the adjuster is sending you to a doctor doesn t mean they ve accepted the claim. And it doesn t mean you have a claim on Rile with the Industrial Commission. More often than you d think an injured worker reports his claim to his employer, gets some medical treatment, and returns to work. After a while the injury is acting up and bothering him but when he tries to go back to the doctor his adjuster denies the claim saying that a claim was not timely Riled. The fact that everyone knew about the claim doesn t always make a difference. The South Carolina Workers Compensation Commission needs that Form 50. This is the only irrefutable way to have a claim established. My employer told me to Iile this claim on my health insurance. What s wrong with that? Here s a great lawyer answer it depends. What we worry about is when an employer tries to avoid telling their workers compensation carrier about a claim. It s sort of like getting into a fender bender in a parking lot. You may be tempted to pay the other guy $500 to get his car Rixed and keep everyone s insurance company out of it. While that works with dents on fenders it s not so clear that it works with internal injuries on workers. If it gets you medical treatment more quickly and efriciently than waiting around for an adjuster we re all in favor of putting the bill on health insurance. But if your boss isn t reporting the claim to the adjuster this could be a big problem. We ve seen it happen dozens of times: when the doctor takes you out of work you ve got no 20

22 income coming in. You chase down a workers compensation adjuster who in turn chases down your employer and asks why this wasn t immediately turned in for handling. At that point your boss can admit he tried to handle it inhouse. Or he can blame you for everything. Sadly, we ve seen a lot of injured workers get the short end of a stick just because they tried to help the company out. You really need to think this through carefully. Our rule of thumb is that it is usually Rine if it speeds up treatment and it s your idea. We re less thrilled by it when the employer is telling you to do it right off the bat. I m not sure my employer has workers compensation insurance. How do I Iind out? Call us. We can help track this down. Employers are required maintain workers compensation insurance and Rile proof of compliance with having insurance with the South Carolina Workers Compensation Commission, although many do not. Smaller companies are prone to skipping this and certain business types like construction, home health agencies, and small trucking companies seem to neglect this as well. By law they are all required to keep that information posted where all employees can see it regularly. Any employer who has four or more employees regularly working is required to carry workers compensation insurance. If your employer is making it difricult to Rind out who their carrier is you may well have a problem on your hands. It certainly suggests that they aren t keen on complying with South Carolina law. And that makes your situation all the more precarious. Uh oh. My employer is uninsured. Am I in trouble? It s all a bit more complicated when your employer is uninsured, that s true. And a lot of attorneys refuse to handle those claims. We take a different approach and pursue these claims. It s not easy but it can pay off in the end. By law any company with four or more regular employees has to carry workers compensation insurance. Sometimes there is a legitimate confusion over this if the owner works regularly in the business he or she is an employee for this number in many cases. Sometimes uneducated insurance agents tell employers they don t need workers compensation insurance if there aren t three full- time employees. Other times these agents suggest that the company designate many people as independent contractors in order to avoid requiring workers compensation insurance or to limit the number of employees on the coverage (premiums are set as a percentage of payroll. Fewer employees or lower payroll means lower insurance premiums.) 21