There are a number of common tactics that employers and insurance companies use in an attempt to reduce their liability in a workers’ compensation case. They can be divided into 2 main categories: ways to fight the claim at the outset and ways to reduce the benefits available to the client. Let’s explore the different methods that employers and insurance companies use to fight a claim at the outset.
The first tactic that employers and insurance companies take in fighting a claim is to deny, deny, deny. These 3 denials are:
- Deny the person was an employee.
- Deny the person was injured on the job.
- Deny there is actually an injury.
Let’s take a look at each one of these tactics separately.
How insurers try to deny your workers’ compensation claim
#1: Deny the person was an employee
This denial is that the person was an employee of the company. The employer will argue that the injured party was never in their employment. In fact, the injured worker was actually only an “independent contractor.” Typically, they will insist on this by producing a 1099 and using this as definitive proof that the injured worker was not an employee.
The courts in Georgia have determined that the question of whether or not a person is an employee is a question of fact to be determined by the State Board of Workers’ Compensation. There is a 13-part test that is used for this purpose, and while no single factor is determinative, the totality of the evidence is crucial in making the determination. The 13 factors are:
- Was there a contract signed by the parties laying out the nature of the employment?
- Who has the right to control the time, method and manner of the work?
- Is the worker paid by the job or by the hour?
- How long has the person worked for the employer?
- Is the work for a specific job that has a conclusion or is it open-ended?
- Who supplies the tools and equipment?
- Is the job specialized?
- Who sets the hours of employment?
- Are there coworkers and who controls what they can do?
- Is the injured party in the same business as the employer or are they separate and distinct jobs?
- Does the employer withhold taxes?
- Can the employee work for other employers at the same?
- Can the employer add work to the employee without increasing their pay?
While none of these factors are in and of themselves definitive, it is important to know what they are in determining whether or not the injured worker was an employee or an independent contractor.
#2: Deny the person was injured on the job
The second pre-claim tactic that employers and insurance companies will use is that the employee was not actually injured on the job. The employer may ask the injured worker to tell the hospital or industrial clinic that they were not injured on the job because they are afraid that their premiums will go up. They may then inform the employee that they will pay all of the medical bills. Once the medical provider produces a note stating that the worker was not hurt on the job, they deny the claim. They’ll say, “See, it is in writing that you were not hurt on the job.”
Often the employer will claim that another employee told them that the injured worker was not hurt on the job. No proof of this will be provided, but they will deny the case because of this hearsay. The employer will become very stout in their position and will insist that the accident did not happen on the job. This can be very harmful to the injured worker because the denial of medical treatment at the outset of the claim could lead to both a more significant injury and prevent them from sufficiently documenting their injuries and complaints of pain. The inability to record what is injured can lead to future denials by the insurance company under the premise that a specific body part is not part of the claim because it was not initially noted.
#3: Deny there is actually an injury
The third type of denial that takes place at the outset of the claim is the denial that there is an actual injury. The employer will insist that the employee is faking it and that there is no injury, or that they are trying to get a prior injury treated through workers’ compensation. Many times, a worker injures a muscle while working. This injury cannot be seen on an X-ray or an MRI. The injury can be severe enough to prevent that person from working. The employer is not a doctor, in almost all cases, yet thinks they know what is actually going on with the injured worker.
The second type of injury that does not always show up on a normal MRI or an X-ray is a rotator cuff injury. These injuries are extremely painful and failure to properly diagnose and treat them can lead to significantly greater injuries. This also holds true of traumatic brain injuries. Brain injuries are very difficult to diagnose. Concussions are defined as “temporary unconsciousness caused by a blow to the head.” Many people have a sensitivity to light and constant headaches as a result of their concussion. They should not rush back to work and be too quick to ignore their symptoms. Concussions can have long-term and very serious consequences.
Remember just because a case is denied, does not mean it is not a valid case. Employers and insurance companies try and deny many valid claims at the outset. Do not give up on your case. Instead, contact an experienced and knowledgeable lawyer with training in workers’ compensation cases.
How insurers try to reduce your workers’ compensation benefits
Previously, we discussed some tactics that your employer and/or the insurance company may take to deny your case at the outset of your claim.
Now, let’s discuss what tactics those same actors may undertake to prevent you from continuing to receive benefits, or to reduce the benefits you are entitled to as a result of your on the job injury.
#1: Forcing injured workers to visit a certain doctor
When a case is accepted by an insurance company, they are required to provide medical treatment to the injured individual with an authorized treating physician. If the authorized treating physician places work restrictions on the injured individual which the employer cannot accommodate, or the authorized treating physician takes the injured worker out of work for more than 7 consecutive days, the injured worker is entitled to indemnity benefits.
The first tactic that employers and insurers employ to limit your benefits is to force you to go and see “their” doctor. Georgia law (O.C.G.A. 34-9-200 ) and Rule 201 of the State Board of Workers’ compensation lay out the requirements for what doctors are required to be provided to an injured worker. These rules are as follows:
- At least 6 doctors must be provided.
- There has to be an orthopedic doctor included amongst the 6.
- No more than 2 physicians can be from an industrial clinic (i.e. Concentra, Premier Immediate Care, etc.)
- There must be a minority physician amongst the 6 physicians.
An injured worker is entitled to pick any of the 6 doctors he or she chooses at the time of their initial injury. They cannot be forced to go and see a particular doctor.
Many times, the employer will tell the injured worker that it is their policy to send all injured workers to a specific industrial clinic. They often claim that this needs to happen so a drug test can be administered, or that they have a special relationship with that doctor and that they can get in to see that doctor quicker. Don’t fall for this trap.
It’s very important to choose your own doctor for a few reasons. First and foremost, your doctor is the most important person in your workers’ compensation case (besides yourself). The authorized treating physician determines what medical treatment the injured worker requires and what work restrictions, if any, the injured worker has.
If the employer/ insurance carrier determines what doctor you are going to see, it could have vast ramifications. For example, maybe the doctor really is “their” doctor. Maybe that doctor or clinic is more concerned with keeping their employer (the insurance company) happy as opposed to treating the injured worker. Or maybe you never actually see a doctor at the clinic, only a PA. There could be a terrible misdiagnosis which could lead to severe medical problems if an injury is not properly treated initially.
It’s very important that the initial doctor take a proper account of both the injury and the body parts that have been injured. Medical treatment is often denied if a body part isn’t properly reported or recorded as being injured by the initial medical facility.
For example, let’s say an individual falls at work and reports a back and neck injury. Their back is bothering them most at first, so that is the focus of the treatment. The industrial clinic either ignores or fails to properly document the neck injury. Subsequently, when the neck becomes increasingly painful, the insurance carrier denies the neck because it was not noted initially. Litigation ensues and it may take months for proper treatment to occur.
A second reason it is important to initially choose your doctor is because you are allowed a one-time change in authorized treating physician when the case has been accepted medically. This means an injured worker can choose a second doctor to treat them if they are unsatisfied with the initial treatment they receive.
If you receive treatment from an industrial clinic, your only recourse for proper care may be through a change in authorized treating physician to an orthopedic specialist. If you are unhappy with their treatment there, then you’re looking at an uphill battle. However, if you are treating with an orthopedic doctor at the outset, it’s easier to make the switch to another orthopedic doctor and get a proper diagnosis.
#2: Miscalculating your average weekly wage
There are also ways that the employer/insurance carrier can attempt to reduce benefits from an indemnity perspective. Indemnity benefits are financial benefits you receive while you are out of work, either because the authorized doctor has taken you out or because the employer cannot accommodate your restrictions.
The first way that your benefits can be reduced is in the initial calculation of benefits. In order to determine what the average weekly wage is, you take the gross of the 13 weeks’ pay prior to the date of the injury.
The courts in Georgia have determined that if an individual only worked for 11 of the 13 weeks, then they haven’t worked substantially the whole of the 13 weeks. Therefore, you must use an alternative method to determine what the workers’ compensation rate should be.
Without notifying you, your employer and the insurance company may be calculating your average weekly wage incorrectly. This can affect all aspects of your case as it is used to determine how much an injured worker will receive on a weekly basis and is used in the calculation of payment in a permanent partial impairment rating.
#3: Miscategorizing your indemnity benefits
When an injured worker is receiving temporary total disability indemnity benefits because the employer cannot accommodate light duty work restrictions, there is a way in which the insurance carrier can shorten both the amount the injured worker is receiving and for how long they receive it. When someone is hurt on the job in Georgia, they are initially entitled to 400 weeks of indemnity benefits unless their case is deemed catastrophic.
However, if they are placed on light duty restrictions by the authorized treating physician for 52 consecutive weeks (or 78 aggregate weeks), the insurance company can convert the payment from temporary total disability benefits to temporary partial disability benefits. This reduces the maximum you can receive from $675 per week to $450 week.
In other words, if an injured worker is receiving more than $450 per week, their benefits will be reduced. Furthermore, the amount of weeks they are eligible to receive benefits is reduced from 400 weeks to 350 weeks, regardless of how much they receive per week.
#4: Obtaining an unreasonably low permanent disability rating
Another way that insurance carriers and employers attempt to reduce the benefits owed to an injured worker is by obtaining a low permanent partial disability rating that is incongruent with the injured worker’s actual abilities.
The authorized treating physician typically assigns a permanent disability rating to an injured worker once they have achieved maximum medical improvement. The payment for this rating is based on a formula. An insurance carrier may push a doctor into giving a low rating, or they’ll hire a preferred vendor to outsource this task. The lower the rating, the less money the injured worker receives.
Importance of talking to an experienced Georgia workers’ compensation attorney
These are just a few examples of how employers and insurance carriers work to reduce benefits owed to injured workers. If your workers’ compensation claim is denied, hire an attorney.
In your deposition, your attorney can help you avoid common workers’ comp deposition mistakes.
If you have any questions about your workers’ compensation claim or think you are being taken advantage of, please don’t hesitate to contact the lawyers at Gerber & Holder.
