Ramos Law Firm Workers' Comp Blog » workers’ comp law

A typical workers compensation claim when an employee suffers back strain or herniation

Bryan Ramos — Fri, 23 Dec 2011 04:13:40 +0000

A common workers’ compensation scenario involving a back injury goes like this:

The injured worker will feel pain in his back or spine, be directed to a Concentra, Urgent Care, or Choice Care in Atlanta or DeKalb County, and the “doctor” may dismiss the worker with a “back strain or sprain.” Hopefully, an x-ray will be done and the worker will be given some prescription medication. However, the injured worker may remain in pain. After a few days, the employee (hurt at work) would return to the industrial clinic complaining of pain. Hopefully, an MRI would done.

If the MRI scan demonstrates a disc herniation, this means that there may be a tear in the outer ring of a spinal disc. Generally, inflammation may occur and cause pain. The symptoms may depend on the level where the herniation occurred and whether it is touching a nerve. For example, a herniation in the low back may cause pain in the buttocks or down the injured worker’s legs. Treatment for back pain may include physical therapy, and potentially surgery. It is important that injured workers understand their course of treatment and options.

If the employee’s pain is bad enough that he or she is losing time from work, he or she may be entitled to income benefits under the Georgia Workers’ Compensation Act, in addition to the medical treatment (provided at the expense of the Employer/Insurer). There also may be a permanent impairment rating issued at some point in the life of the claim.

The employee tends to feel lost between the pain level, trying to maintain their life and navigate the workers comp claim. If you find yourself or someone you know in this position, have them contact our office for a consultation. We can help so that you can focus on getting better.

If you need some advice as to your rights under the workers’ compensation system, please contact our office at the Ramos Law Firm.

Death benefits and Foreign (Alien) Dependents

Bryan Ramos — Wed, 10 Aug 2011 12:51:37 +0000

In the unfortunate and tragic death caused by a work accident, the deceased employee’s spouse or children may be entitled to workers’ compensation benefits. O.C.G.A. § 34-9-13. There was an issue as to whether alien or foreign dependents were limited or excluded from these death benefits. The Workers’ Compensation Act (prior to 1995) made an unlawful distinction between dependents who are US Citizens and foreign dependents. Essentially, the law limited the non-resident death benefits to $1,000. This section of the workers’ compensation code was challenged and the Supreme Court of Georgia struck down provision. See, Barge-Wagener Construction v. Morales, 263 Ga. 190 (1993), cert denied, 510 U.S. 1003 (1993).

Since then, the workers’ compensation law was amended to delete the distinction between non-resident and resident dependents. Therefore, issues of citizenship and residency are not relevant or applicable to determining the entitlement of workers’ compensation dependency benefits. O.C.G.A. § 34-9-265

If you have any questions about death or dependency benefits, please contact the Ramos Law Firm at 404-355-3431.

Change of condition; Fictional New Date of Accident

Bryan Ramos — Sat, 30 Jul 2011 00:27:33 +0000

What happens when an employee is hurt on the job, comes back, but then goes back out because of the work injury? The problem that presents is itself is whether the reason for the disability is a “change of condition” of the previous injury or a “fictional new date of accident”. The distinction can be confusing and may have an impact on whether the employee has a statute of limitation problem.

Generally, a “change in condition” occurs when the injured worker demonstrates a change in the wage-earning capacity, physical condition, or employee status after original injury (established by award or otherwise). O.C.G.A. § 34-9-104 (a); Atlanta Hilton & Towers v. Gaither, 210 Ga. App. 343, 436 S.E.2d 71 (1993). See also Aldrich v. City of Lumber City, 273 Ga. 461, 542 S.E.2d 102 (2001). See ABB Risk Management Service/Georgia Kaolin v. Lord, 254 Ga. App. 88, 561 S.E.2d 225 (2002). An injured worker must be careful in these situations as a few statutes of limitations may be triggered for restarting income benefits, or even formally accepting the claim. See, O.C.G.A. §34-9-104 and 82.

In some cases, an injured employee who sustains a job-related injury may continue to work until her condition forces her to cease work because of gradual worsening of her physical condition. The Georgia law will generally consider the date she stopped working as a “fictional new date of accident.” Central State Hospital v. James, 147 Ga. App. 308 (1978). These fictional new date of accident cases do not involve a new “traumatic” injury. This scenario is analogous to the “straw that broke the camel’s back” story.

If you have been injured on the job and have recently stopped working, you may be entitled to workers’ compensation benefits. For a free consultation, please contact the Ramos Law Firm.

If I had a beer shortly before my work injury, am I barred from receiving workers’ compensation benefits?

Bryan Ramos — Tue, 26 Jul 2011 16:04:59 +0000

Generally, no compensation is allowed for an injury or death due to an employee’s “willful misconduct.” O.C.G.A. §34-9-17. Moreover, if the injury or death of the employee is due to alcohol intoxication or being under the influence of marijuana or other controlled substances, then there may be a “rebuttable presumption” that the injured worker is not entitled to workers’ compensation benefits.

HOWEVER, merely ingesting an intoxicating liquor, even being “under the influence” to a degree is not a complete bar to workers’ compensation benefits. The injured worker must be able to prove he or she was not “intoxicated” and the alleged “intoxication” was not the legal cause of the injury.

These cases are very technical and fact specific. Predictably, the workers’ compensation insurance company will likely take a hard line stance in these cases. However, injured workers can win these cases. For a free consultation, please contact the Ramos Law Firm.

Does an injured worker have the right to a second opinion or independent medical evaluation?

Bryan Ramos — Tue, 19 Jul 2011 17:08:15 +0000

Generally, an employee has the right to one independent medical examination with a physician of the injured worker’s choosing. The doctor must be in Georgia or within 50 miles of the injured worker’s residence. This second opinion or independent medical evaluation will be at the expense of the Employer and Insurance Company. However, the second evaluation must take place within 120 days of the injured worker’s receipt of income benefits. Additionally, written notice of the evaluation must be made in advance of the examination. The Employer and the Insurance Company’s liability for repeat diagnostics may be limited to $250. See, O.C.G.A. §34-9-202

If you have been injured on the job and have received weekly income benefits, you may be eligible for a free second opinion or independent medical examination. Contact the Ramos Law Firm, if you believe you need assistance in securing this medical right under the Workers’ Compensation Act.

Messing up my workers’ compensation case

Bryan Ramos — Tue, 05 Jul 2011 19:08:58 +0000

Recently, I had a Piedmont Hospital employee ask me how most clients “mess up” their workers’ compensation case. After some thought, I advised her that the most common issue clients have is not accurately or comprehensively reporting the accident AND injuries to their supervisors. I advise some employees hurt at work to take a moment and actually write down what happened for themselves. These employees should keep in their detailed diary or journal:

what happened;
the time and date it happened;
the names of the witnesses;
the people involved;
what caused the accident;
all the injuries which resulted from the accident;
who the hurt worker’s supervisor was at the time;
what the supervisor told the injured employee as to medical treatment and job status;
medical instructions given by the doctor; and
the identity of all the doctors he has seen relating to the accident.

The judge will put a lot of emphasis on the initial reports of the accident.

Also, a sure fire way to mess up your case is to miss doctors appointments. By doing this, the State Board of Workers’ Compensation will think that you do not need medical treatment and that you have no disability. On the same token, the injured employee should not exaggerate, nor should he hide, the pain and limitations that has resulted from the work injury. Again, I recommend keeping a journal or diary with the injured workers to document the type of pains he is having. Many of my clients will say, “I forgot to tell the doctor about . . .” It is best to come into the medical appointment prepared.

Furthermore, take down your social media pages. Forget the facebook and twitter updates. The insurance companies may have hired private investigators to see what you are up to and to see if they can twist your “status updates” into evidence against your case. Be smart about what you post. . .

I am sure there are others but these seem to be on my mind. If you have a question about your workers’ compensation injuries, please feel free to contact my firm for a free consultation.

What is a “workers’ compensation mediation?”

Bryan Ramos — Thu, 16 Jun 2011 16:00:46 +0000

Generally, a mediation is a form of alternative dispute resolution. The idea centers around the parties’ interest in finding a solution to the issue before the court, tribunal, or worker’s compensation board. This process involves a neutral party to help facilitate the dialogue between the litigants.

The mediation may involve the ultimate settlement of the workers’ compensation case or it may be limited to a particular issue such as medical treatment for a torn rotator cuff, surgery on a back claim, or even mileage reimbursement. At the State Board of Workers’ Compensation, the mediation settlement conference is free of charge to the participants. Generally, the parties will begin with an opening statement. Subsequently, the parties will be separated into their respective “caucus.” The mediator will then shuffle between the parties providing neutral insight to both parties as well as delivering messages. The information exchanged at the mediation should remain confidential.

At the Ramos Law Firm, we have successfully mediated hundreds of claims and reached favorable results for our clients.

Hearing loss due to job duties

Bryan Ramos — Fri, 10 Jun 2011 17:56:54 +0000

In situations where an employee becomes deaf or suffers an occupational hearing loss, recovery under the workers’ compensation act can be tough. The statute governing such claims are very technical. For example, an employee may recover benefits for hearing loss by “harmful noise.” The code defines harmful noise as “sound in employment capable of producing occupational loss of hearing.” The definition of “occupational hearing loss” equates to “permanent sensorineural loss of hearing in both ears caused by prolonged exposure to harmful noise” in the employment setting. Additionally, there are specific provisions regarding entitlement to income benefits, as well as the use of protective devices capable of preventing hearing loss.

Hearing loss claims may arise from working at the airport, race tracks, assembly lines, or other areas where “harmful noise” may occur. If you have suffered a hearing loss that may be attributable to your work duties, it would be best to consult with an attorney regarding your rights under the workers’ compensation law. For a free consultation, please contact the Ramos Law Firm at 404-355-3431.

Is the employer required to provide medical treatment because of a workers’ compensation injury?

Bryan Ramos — Wed, 11 May 2011 10:18:08 +0000

Yes, the Workers’ Compensation Act provides that “Employer/Insurer shall furnish the employee entitled to benefits under this chapter such medical, surgical, and hospital care and other treatment, items and services which are prescribed by a licensed physician . . . reasonably required and appear likely to effectuate a cure, give relief, or restore the employee to suitable employment.” In other words, the Employer and the insurance company are responsible for the reasonable medical treatment related to the work accident.

Board Rule 200(a)(1) further explains that the: “Employer/Insurer have a duty to provide all reasonable and necessary medical treatment in a timely manner and to give appropriate assistance in contacting medical providers when necessary.” Similarly, the Employer and Insurance company must approve and authorize this treatment without significant delay.

In our experience, many injured workers fall victim to delays and denials of medical treatment as they are not properly trained on what to ask for or what to do. Medical treatment is crucial to properly heal from the work accident. If you have suffered a work related accident and you are unable to get medical care, we recommend you call us at 404-355-3431 to assist you.

Aggravation of knee problems and workers comp benefits

Bryan Ramos — Mon, 04 Apr 2011 16:33:35 +0000

Suppose a worker has prior knee problems but then re-injures or aggravates the knee while on the job. Would this injury be accepted under workers’ compensation?

Yes, provided that the aggravation or reinjury was the result of the employee’s work duties or responsibilities. While the Employer/Insurer may have a few legal defenses against this claim in certain circumstances, the claim is actionable at first glance.

If the claim is accepted, the employee would be entitled to medical benefits including physician visits, specialist evaluations, physical therapy, prescription medication, durable medical equipment, and mileage reimbursement to and from his or her sessions. There would be no co-payment for this treatment.

If the claim is bad enough to miss work, the employee may be entitled to weekly income benefits. The dollar amount of these benefits (also known as the “comp rate”) would depend on the employee’s average weekly wage. Unfortunately, the comp rate is limited based on the date of injury.

The Ramos Law Firm represents clients with workers’ compensation legal concerns in the Atlanta metro area and throughout Georgia, including Marietta, Decatur, Douglasville, Lithonia, Lawrenceville, Smyrna, Stone Mountain, Norcross, Riverdale and Jonesboro.

If you would like a free consultation regarding your workers’ compensation injury, please contact our firm.