Having Trouble With Your Workers' Compensation Claim? You Are Not Alone!

Posted on March 31, 2011 by Jeff Blackwell

While sitting in court on a recent workers' compensation case, I started to think about all the reasons someone calls an attorney after suffering a significant work-related injury.  For me, former clients are often the best source of referrals.  However, I'm not talking about why the caller chose a particular attorney.  Set aside referrals and marketing for a moment.

I am talking about why the injured person even decided to consult an attorney at all.  Sometimes, the injured person feels they need some general legal advice in light of their situation.  That's often a good idea.  A significant injury presents many issues that can be helped by competent advice.  Most personal injury attorneys will provide a free consultation.

Aside from general advice, what are some of the most frequent problems encountered by injured workers that lead them to call an attorney?  I can think of many common problems that lead to such a call.  Here is a list of a few of the most frequent reasons I hear:

  1. The Preexisting Condition Denial -- The insurance carrier denied my workers' compensation claim because I have a preexisting condition.
  2. The No Settlement Unless You Close Medical Benefits Refusal -- The insurance carrier refuses to discuss my claim or negotiate any settlement with me unless I give up all rights to medical care for my injuries.
  3. The Company Doctor is a Bad Doctor Problem -- The insurance carrier has provided me with a doctor.  However, he won't treat my injuries; won't listen to me, etc..  If the provided doctor wants to care for me, then the carrier won't approve his treatment; denied his request for specific treatment; tried to make me change doctors, etc..
  4. The My Case is Only Worth That Shock -- The insurance carrier has provided an offer.  However, it is extremely small and the carrier has insisted it is all I am entitled to receive under Alabama law.
  5. The You Did Not Give Us Proper Notice So We Don't Accept Your Claim Excuse -- The insurance carrier claims I did not provide notice of my accident as Alabama law requires and refuses to do anything.

I have written previously about the impact of preexisting conditions on a workers' compensation claim.  That excuse, like the others, is often not a reason to deny or refuse a claim.  For example, in Alabama, you cannot be forced by the carrier simply to give up your rights to medical treatment.  While some attorneys routinely let their clients give up medical rights, I typically do not.  The security of getting treatment for a significant injury is too important simply to give away.  At least, that's how I feel about the issue.

As for problems with the authorized physician or "sticker shock" over a low offer that the carrier insists is all you are entitled to receive, those are common and complicated issues.  You do have to seek care with the doctor chosen by the carrier.  However, there are legal avenues you can take to change or challenge the situation where you cannot get good medical care.  Alabama law provides some methods to change doctors or get a panel of alternative doctors.  Also, you can seek court intervention if the carrier is simply refusing to approve recommended care from a doctor who is trying to help you. 

As for low settlement offer shock, Alabama law does provide only limited benefits based on certain calculation methods.  While I am sure some may disagree with me, I believe that Alabama law fails to provide sufficient benefits.  That is why it is so important to understand how benefits should be calculated so that you can obtain what the law does allow.  However, the carrier will often use the lowest method of calculating benefits.  In many cases, the benefits really owed can be very different.  As an example, in many cases, you are entitled to be compensated based on your vocational disability (the impact of the injury on the number or amount of jobs you can now no longer perform).  Yet, carriers will typically only offer injured workers a settlement calculated upon the usually much, much lower number assigned as a physical impairment rating.  If you don't understand how calculations based on a vocational disability or impairment rating are determined, you are not alone.  Many attorneys don't have a good grasp of these terms or the methods of calculating benefits.  You can bet that the claims adjusters working for the insurance carrier do understand them and will often offer the lowest method of calculating benefits.  So, you better seek advice from someone who fully understands the calculations as well.

Notice of your accident can also be a complicated issue.  The requirement of notice can be met in a variety of ways.  It is not always the clear bar to a claim that the carrier would lead you to believe.

These issues can be complex.  They are too complex to discuss together in detail in this one post.  You should not simply accept a denial without consulting a professional in this complicated area of law. 

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Challenging False Claims of Malingering by the Defense

Posted on March 19, 2011 by Jeff Blackwell

I recently read a post by Edwin Lamberth titled "Beating the Malingering Defense" on his firm's blog. Edwin is an excellent attorney practicing in Mobile, Alabama.  I have had several occasions to discuss cases with him in the past.  His post raises an issue that we must handle in many of our cases.  Edwin offers some valuable advice when dealing with such allegations by defendants and their legal counsel in personal injury litigation.  I agree with Edwin that it is very important to identify people who live and work around your client. These witnesses can provide valuable and credible testimony concerning the very real impact of a serious injury on your client.

In his post, Edwin also points out that defense counsel will rarely come right out and say your client is exaggerating or faking his injuries.  Instead, the defense will try to imply these bad motives to prejudice the treating doctors, judges, and juries against your client. What the defense knows is that an outright accusation of malingering could easily be defeated.  The implication of a bad motive casts a shadow of doubt that is much more difficult to defeat.

The medical experts for the defense will often use official sounding tests to claim that they suspect exaggeration by the plaintiff or cannot reach a diagnosis because of questionable results. In order to effectively represent an injured client, an attorney must understand the terminology and "tests" cited by a defense medical expert.  Deceptive defense medical experts use a variety of questionable tests to imply malingering.  I hope to discuss several of these questionable tests in the future.

Today, I want to talk about just one supposed "test" that defense medical experts mis-use to claim malingering.  In the last month, I have deposed two different physicians where this test was cited as an implication of bad motive by my client.  This test is called "Waddell's Signs."

When do you typically see a defense expert cite Waddell's Signs?  The defense medical expert will most often utilize this "test" in cases where the plaintiff has had a severe injury that results in chronic pain.  Why do defense experts cite Waddell's Signs?  The expert will cite this "test" to imply that the injured person is exaggerating their pain.  The defense expert will often use this implication to say that they cannot accurately state the injured person's limitations or true functional problems because of the positive signs.  Again, what makes this accusation so difficult is that the defense expert typically will not outright accuse the injured person of malingering, but rather, will say the positive Waddell's Signs lead to questionable claims.  This is the shadow of doubt that the defense will want to present to a jury.

So, what are "Waddell's Signs" and what do they really show?  Basically, the "signs" consist of the doctor performing certain physical maneuvers on the patient and asking if they result in pain.  They were developed by Gordon Waddell.  The idea behind these maneuvers is that the specific maneuvers should not physically produce such pain.  The first problem with them is that the physician may not have even performed the maneuvers correctly.  Most physicians I have questioned about this test really do not even fully understand the maneuvers they are supposed to perform.  However, even if performed correctly, positive results do NOT mean the injured person is malingering.  The creator of the signs, Gordon Waddell, clearly stated in his research that they were NOT intended to identify malingerers. In fact, positive results can mean several things, some of which are related to patients experiencing severe chronic pain from an injury.  Subsequent research has also suggested that Waddell's Signs have little or no correlation to the issue of malingering.  In my own practice, I have seen several past cases where the defense medical expert cited positive Waddell's signs to imply my client was malingering, only to have a surgeon months later find and operate on a very real and painful injury to the person's spine.

Keep in mind that Waddell's Signs are just one of several suspect "tests" used by defense experts to cast doubt on a legitimate claim.  As Edwin noted in his blog post, it is very important to identify the people who live and work with the injured person.  These witnesses can provide important testimony concerning the very real impact of the person's chronic pain.  It is also important to not allow the defense medical expert's unsubstantiated and vague implication of malingering go without challenge.  The attorney who regularly represents injured people must understand these medical issues and directly challenge unfounded allegations.

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