Don’t believe these common falsehoods from corrupt workers’ compensation insurers
There are many lies insurance companies tell injured workers before they are represented by counsel and sneaky tactics they use to reduce or deny benefits that are owed. We wanted to explore and discuss what we believe are the top lies, falsehoods and deceptions that corrupt insurance companies tell those who have been hurt on the job.
While not all insurance companies act this way and some adjusters and insurance companies play by the rules, there are many who do not. Perhaps the most dangerous part about these lies is that the insurance company/adjuster provides the information as if they are working on behalf of the injured worker, or that the injured worker does not have a choice in the matter.
Thus, it’s crucial for injured workers to fully understand their rights and prepare for these common lies.
Lie #1: “Before I do anything, I need to take your recorded statement.”
This fallacy is often told to injured workers by a representative of the insurance company immediately after their employer reports the injury. There is nothing in the workers’ compensation statute that requires an injured worker to give a recorded statement to an insurance company.
The insurance company may have an internal policy requiring the statement, but that does not mean the injured worker has to oblige. Failure to give a statement is NOT grounds for a legal denial of a workers’ compensation claim.
In fact, we would recommend against giving a recorded statement for the following reasons:
- If the statement is requested right after the accident, the injured worker may not be the right mind-frame to answer questions regarding the accident. The focus of the injured worker may not be on the question actually asked. Many times, these calls are recorded and later used against an injured worker so paying attention is important.
- This is not part of the formal discovery process and the injured worker does not have the same rights as they would under the Georgia Civil Procedure act. These rights include objecting to the form of the question, deposing witnesses and the employer. The injured worker is giving up rights by agreeing to a recorded statement that they do not have to.
- The adjuster (or whoever is asking the questions) may try and purposefully trick the injured worker during these questions and use them to attempt to deny a claim. They also may give the injured worker bad or wrong advice. Remember, the adjuster works for the insurance company, not the injured worker.
- There is certain information that the injured worker may not want to (or may not need to) divulge. An attorney can discuss this with the injured worker and provide legal advice appropriate to their case. Someone taking a recorded statement will not be advising you of your rights.
We can’t stress this enough:
Providing a recorded statement to an adjuster or representative of the insurance company is not required under Georgia law.
Lie #2: “You have to see and treat with a doctor that we send you to.”
This blatantly false line from the insurance company may be the one that is the most often told. Quite often, the insurance company’s biggest concern after somebody reports an on-the-job injury is not how the injured worker is doing, but rather have they taken a drug test. Even at the very outset of the claim, insurance representatives are looking to find ways to deny the injured individual’s workers’ compensation benefits.
The injured worker is often sent to an industrial clinic in order to have the drug test performed. Some examples of industrial clinics here in Georgia are Concentra, Choice Care, Peachtree Immediate Care and Caduceus. These clinics do not specialize in any specific type of treatment, rather they are more like generalists.
Once at the facility for the drug test, the injured worker is typically told to see the doctor at the same facility. This doctor typically provides a cynical and cursory examination of the injured worker.
Throughout our decades of practice, we have rarely seen an injured worker get appropriate care at one of these industrial clinics.
Injured workers are also told to go to these industrial clinics by their employers. They are often not given a choice of who they can initially see. They are typically told that they have to go to the industrial clinic first because the insurance company requires it.
This is not true.
O.C.G.A.34-9-200 states that an injured worker is entitled to medical treatment if they are injured on the job. They are allowed to see a doctor of their choosing off of the panel of physicians. The panel of physicians must consist of 6 doctors, which must include orthopedic specialists. Nobody can make you see an industrial clinic after you are injured. You are entitled to go directly to an orthopedic specialist.
Lie #3: “You didn’t follow the employer’s proper procedures in notifying them of your injury, so your case is denied.”
Employers often have specific protocols and procedures for reporting an on-the-job injury. These can include notifying a supervisor or workers’ comp coordinator. The process may be discussed during orientation and during safety meetings. Failure to follow them could lead to termination.
Despite all of this, not reporting an on-the-job injury in the exact manner that the employer requested or requires cannot be grounds for a denial of a claim.
Georgia law requires notification to your employer within 30 days of the accident—or you must file an official notice with the State Board of Workers’ Compensation within 1 year of the date of the accident if your employer or the insurance company will not pay for any medical treatment or indemnity benefits.
Notification can be as simple as telling your supervisor or having a co-worker who witnessed the accident do so on your behalf. It does not mean completing the steps that the employer and or insurance company has requested.
Lie #4: “You didn’t work here long enough so cannot bring a claim.”
This one is completely and totally FALSE.
It doesn’t matter how long you work for an employer. If you are hurt in the scope and course of your employment, you can bring a workers’ compensation claim. Period.
This means that if you are hurt during orientation for a job, you can bring a claim. Even if you are in the probationary period, you can bring a claim. We cannot stress this enough:
The amount of time you have worked for your employer is completely and totally irrelevant if you are injured on the job.
We have encountered situations where either the employer or the insurance company has told the injured worker that they must work for at least 1 day, 1 week or even 1 month before they are eligible for workers’ compensation benefits. Workers’ compensation is not like health insurance or short-term disability. It’s a right that employees have the moment they start working for their employer.
The state of Georgia has established the right to workers’ compensation benefits and you are not required to fill out any forms when you start working to ensure that you get it.
Lie #5: “You are an independent contractor and not an employee so cannot bring a claim.”
This one is not a simple lie. It can have some factual elements to it, but it’s not always the whole truth.
Just because an employer says an employee is an independent contractor, does not make it so. Often, an injured worker will hear that because they were given a 1099 tax form by their employer, they are an independent contractor. The employer or the insurance company may even go as far as to say that since no taxes were taken out by the employer, the injured worker was not an employee.
This is not true.
There is a 13-point test that the courts in Georgia have developed to determine if an individual is an employee or an independent contractor. Not a single element of the test is conclusive proof either way. A multitude of factors is considered, such as:
- Who determines the times that the individual is scheduled to work?
- Is the employee paid by the job or by time?
- Who provides the tools for the job?
- Who is the boss on the job?
An administrative law judge makes the ultimate determination if an individual is actually an employee or an independent contractor, not the employer or their insurance company.
Lie #6: “You have to go back to work.”
This falsehood is extremely common and has many ramifications on your case depending on when this takes place in the evolution of your claim.
First and foremost, neither the representative of the insurance company nor anyone working for the employer is the authorized treating physician in the case. Once an individual is injured on the job, they are entitled to see an authorized treating physician from the panel of physicians. This doctor becomes the gatekeeper on their case. They control what your work status is, not the insurance representative or your employer. To be clear, you cannot see any doctor you want and rely on their opinion—it has to be an authorized treating physician.
The authorized treating physician usually makes a determination regarding the work capability of the injured individual. Typically, this determination falls into 1 of 3 categories:
- Return to normal duty work. This means the injured worker can continue working in their normal job, or return to their normal job.
- Taken totally out of work. If this order is for more than 7 consecutive days, or the order is open-ended, the insurance carrier must commence benefits and pay by the 21 day.
- Light duty restrictions. When the doctor places the injured worker on light duty restrictions, the injured worker has to attempt this work if their employer can immediately accommodate the restrictions. If the employer cannot accommodate the restrictions, indemnity benefits must be commenced within 21 days.
Once indemnity benefits have been commenced, everything changes.
The injured worker is suddenly entitled to new benefits and there are very specific rules regarding returning to work. Besides paying the injured worker benefits, the insurance company must immediately file a form called a WC-2. This form provides notice to the State Board of Workers’ Compensation that indemnity benefits are being paid.
When an individual is receiving benefits, they do not have to just show back up for work when the insurance company tells them.
There is a specific process that has to be followed when a doctor changes the work status of an injured worker or an employer suddenly has light duty work available. First, the injured worker must be provided with 10 days’ notice that their benefits are going to be suspended or that a job is available.
If a light duty job is being offered while the injured worker is receiving benefits, the authorized treating physician must sign off on the job. In other words, a very detailed job description of the light duty job must be provided to the authorized treating physician via a form WC-240(a).
If the doctor signs off on the job, the injured worker must be provided 10 days’ notice of when that job is to begin. Furthermore, if the injured worker attempts that job for 8 hours and less than 15 days and is unable to continue working because of their on-the-job injury, indemnity benefits must be immediately recommenced.
While an injured worker may think they are doing the right thing by returning to work, they may actually be hurting themselves and forfeiting some of their legal rights.
If they aggravate their injury because they were not physically ready, they may be doing permanent damage to themselves. Additionally, an employer may try and fire an injured worker during their attempt to return to work, making it much more difficult on an injured worker.
As you can see, just because the insurance company says you have to return to work, does not mean they can force you back right away. There are important procedures in place to protect injured workers.
Lie #7: “Your problems are all preexisting because of a prior injury.”
It’s a common worker’s comp myth that you can’t get benefits if you have a previous injury or health condition. Injured workers are often told that their newly sustained work-related injury is being denied because they had a pre-existing condition. The insurance company may bring up that you were previously in a car wreck and therefore they do not have to pay for your treatment of the new injury. Sometimes, the authorized treating physician will state that the injured worker has a pre-existing condition that is the cause of their pain when this is not true.
The workers’ compensation system is clear in that insurance companies must take the injured worker as they found them. In other words:
If the injured worker was capable of working prior to their injury and now is unable to perform the work subsequent to the injury, they have sustained an on-the-job injury that the insurance company must pay for.
They have broken the eggshell, no matter how fragile it was.
Some workers’ comp doctors may also play along with insurance companies by attempting to blame everything on a pre-existing condition. We often see this labeled as “degenerative disc disease” when an individual has hurt their back on the job, even though this fallacy is in direct contradiction to what the injured worker was able to do prior to their injury.
Insurance companies do not make money by paying out claims. In a basic sense, they make money by collecting premiums and not paying out on claims. It does not benefit the injured worker to listen to what the insurance company has to say because it may be in direct opposition to what is actually the law. This is especially true when it comes to pre-existing conditions.
Lie #8: “I am offering the full value of your claim.”
Sometimes insurance companies offer settlements to unrepresented injured workers. Often, these settlements include the verbiage like, “I am offering you the full value of your claim.” This causes us to ask:
According to whom are they offering the injured worker the full value of the claim—the insurance company, or the injured worker?
An injured worker has many rights and insurance companies do not always tell them of their rights. For example, an injured worker is entitled to a one-time change in treating physician. Therefore, the insurance company may be offering what they believe is the full value of the claim after an injured worker has only been to an industrial clinic and not an orthopedic doctor to determine the nature and cause of their pain.
The full value of a claim is based on many factors. It is up to the injured worker to ensure that they have all of these avenues covered and not solely rely on the words of the insurance company. An experienced attorney can discuss all available avenues of recovery in your case.
Lie #9: “I will pick the doctor for your second opinion.”
O.C.G.A. 34-9-202(e) states that:
“(A)fter an accepted compensable injury and within 120 days of receipt of any income benefits, an employee shall have the right to one examination… by a duly qualified physician or surgeon designated by the employee and to be paid by the employer. ”
This means that once an injured worker receives money from the insurance company, they have 120 days from the last date they received payment to have an examination performed by a doctor of their choice.
This is a valuable asset for an injured worker to have. These medical evaluations can help them discover what is really wrong with them.
Sometimes, panel doctors either don’t listen to the injured worker’s complaints, or they rush the patient back to work based on a protocol or other nebulous factors. Getting an independent medical evaluation may be an injured workers’ only way to determine what is truly wrong with them.
But insurance companies sometimes try to influence an injured workers’ choice of independent medical evaluation doctors. They will insist you get an independent medical evaluation with a doctor who is already on the panel, or even one who is known to provide the insurance company with whatever opinion they want.
Insurance companies cannot directly communicate with an injured worker once an injured worker has hired an attorney. Therefore, it is important to communicate with and/or hire an attorney so they can ensure that your rights are protected and you pick a doctor that will help you get an honest medical opinion and diagnosis.
Lie #10: “You have to bring a claim in a certain state.”
Sometimes, new hires are required to sign employment contracts stating that any and all workers’ compensation cases against the employer must be brought in a certain venue. This location may be in the state that the employer is headquartered, or maybe just a state that the employer prefers.
This clause is not enforceable in the state of Georgia.
No contract can supersede the jurisdiction of the State Board of Workers’ Compensation in Georgia. This means that an individual cannot settle their workers’ compensation case without approval by the State Board of Workers’ Compensation—and also that if Georgia has jurisdiction over a claim, it can be brought here.
The state of Georgia has jurisdiction over a workers’ compensation case if the injury took place in Georgia. This means that even if the individual was not hired to work in Georgia, or had any specific work in Georgia, a claim can still be brought here if they were injured in the scope and course of their employment.
An example of this when a truck driver is hauling a load through Georgia and is involved in a wreck. Even if both the pickup and drop off point were in other states, they have the right to bring a claim in Georgia.
Georgia also has jurisdiction if the contract for employment was entered into in Georgia, the employer’s place of business is in Georgia or the employee’s residence is in Georgia—and the contract of employment cannot be for work done exclusively outside the state of Georgia.
This legal detail is increasingly important in the age of the internet. Many times people are hired over Zoom or another web portal, or they work remotely. If this happens and either the employer’s business is in Georgia or the injured worker resides here after the contract is signed in Georgia, the injured worker can bring a claim in Georgia if the contract for employment did not state that no work was to be done in Georgia.
Every state has different laws. Some states have different requirements or are more favorable to the employer. For example, Alabama has a low permanent disability rating calculation. Thus, the same injury may be worth more statutorily in Georgia as opposed to Alabama. Florida, on the other hand, is what is considered an MMI state, meaning that benefits can be suspended once an individual reaches maximum medical improvement. Georgia does not perpetuate such a fallacy.
Choosing the best state in which to bring a claim is extremely important. For this reason, it’s important to contact an attorney to ensure you understand your rights under the law.
Bonus lie: “You do not need to hire an attorney.”
Insisting that an injured worker does not need an attorney is a common refrain, but one that rings hollow.
Are there pros and cons of hiring an attorney?
Yes, of course, but the reality is that insurance companies have armies of attorneys working for them. Over time, insurers have honed a system that most benefits the company, not injured workers. It is the job of the insurance company to know the law and utilize every legal loophole to their advantage.
Injured workers can help level the playing field by hiring an attorney. If an attorney cannot assist an injured worker, they typically tell them quickly because they are working on a contingency basis and will not get compensated if they cannot perform a beneficial service to the injured worker.
Our Atlanta attorneys at Gerber & Holder exclusively represent injured workers.
It is our job to act as the protector of the individual who has been hurt on the job. We can help them get medical treatment with appropriate doctors and ensure that they are receiving all the benefits the law allows.
If you have any questions about workers’ compensation, don’t hesitate to contact us today for your free consultation.
