How many of you have been asked by a doctor to describe your pain on a scale of one to 10? This article describes how science has advanced in gauging pain, but how much further doctors have to go.
Author Archives: Karl Voigt IV, Esq.
Surprisingly, this photo is not smuggled out of a local factory, although I’ve heard this story before…
From A Series of Unfortunate Events (2017 ).
by Karl Voigt
When do you need an attorney for Workers’ Compensation? For those of you who read my posts on Avvo.com, you know that I am by no means a salesman for lawyers. I often encourage Workers’ Compensation claimants to stick it out, and not enter into a fee agreement with a Workers’ Compensation lawyer until they actually need one. I usually say, “you’ll know when you need one.” Lawyers costs money. The general rule is that, once you go to Worker’s Compensation court with a lawyer, 20% of your checks are going to be paid to that lawyer as a fee.
Some recent experiences have really started to change my opinion. And I’ve been practicing Worker’s Compensation law for 26 years now. I have recently seen some very poor behavior from employers and adjusters right at the beginning of the case that makes me think injured workers should have lawyers working for them from day one.
Usually, right at the inception of a claim, the insurance company doesn’t have a lawyer working on its side. There’s an insurance adjuster who makes the initial decisions. Often bad decisions – for the injured worker.
I had someone contact me recently who had just hurt his low back at work. Okay, it happens; people get hurt and that’s what Worker’s Compensation is designed to address. What supposed to happen after that is the employer reports the injury to its Workers’ Compensation insurer and the injured worker gets medical treatment. If the employee can’t work because of the injury, he gets paid wage loss benefits.
So this gentleman hurt his back, immediately told his employer, who essentially disregarded him. His employer wouldn’t even let him know who his Worker’s Compensation insurance company is.
So, after I spoke with him, I used my own resources to track down the identity of this employer’s insurer. Then I contacted that insurance company, trying to hunt down the identity of the person responsible for handling this work injury claim. “No such claim,” they said. Okay, so the employer pay no heed to the law that says that all work injuries must be reported to the carrier within 24 hours.
My efforts now forced the employer into reporting the claim and a file was opened, a claim number generated, and an adjuster assigned. Under ordinary circumstances, the claimant might have simply gone on working in pain, allowing his employer to string him along.
The worker then discussed his case with the adjuster, who actually told him he was compelled to treat with a doctor chosen essentially by her! This would allow her to “twist the arm” of a doctor who was contracted with the carrier. This doctor, knowing who buttered his bread, would be more inclined to make medical decisions favoring the employer, rather than
Before this conversation with the adjuster, we had a discussion about his medical care. Anyone who’s well-read here or on Avvo.com know about the captive period, where a carrier tries to control the initial medical care given an injured worker. Based on the facts, we had decided that he could treat with his choice of doctor. The employer posted no list of physicians from which to choose, nor had the worker signed the “rights and responsibilities” form requisite for the captive period to be enforceable. Therefore, he could not be forced to treat with a company doctor.
But for our conversation, he could have been railroaded into substandard medical care.
All this in the space of just a few days.
Well, not every case goes like this at its inception. Some go smoothly, as it should. However, I suspect more cases like go this one would have when the worker doesn’t have counsel from the start. So, it certainly can’t hurt to get counsel involved from the very beginning. It can only set you in the right direction.
by Karl Voigt
Insurance medical examinations (IMEs) are a tool used by workers’ compensation carriers to control costs. Whether a claimant has been receiving benefits or is just attempting to obtain them, the carrier has a statutory right to send them for an examination with a doctor of its choice. These exams – if they turn out favorable to the insurer – can potentially end benefits or stop them before they even begin.
Section 314 of the Pennsylvania Workers’ Compensation Act allows an employer to request its employee to submit to a physical examination by a health-care provider at any time after an injury. The examiner is generally chosen and paid for by the employer. The doctor is also asked questions by the carrier regarding the necessity of medical treatment, the patient’s physical capacities, or whether a full recovery has been made. As a result, the doctor generates a report and, if it is used in litigation, the doctor will later testify by deposition against the injured worker.
Often examinations don’t take place at an actual doctor office; rather, they are at “IME farms”, companies that actually contract with insurance companies to perform dozens or even hundreds of IMEs a week. Then, these “farms” contract with doctors to perform the IMEs. You can only imagine that these doctors are selected by the “farms” because they give reliable answers that favor insurance companies. Rest assured that your attorney will be familiar with the reputation of the examining doctor. More importantly, judges are often very familiar with these doctors and their reputations. If a doctor performs far too many IMEs with curiously identical opinions, judges may be less inclined to find them credible. It is therefore sometimes actually a good thing for the injured worker if the carrier chooses to send him or her to a doctor who has a reputation as a “gun for hire”.
It’s always fun to cross-examine these IME doctors as to how many IMEs they perform a week and at what price, then how many times they testify by deposition as a result, and at what price. It’s not unusual at all to do the math and come up with more than half a million dollars a year just for doing exams for insurance companies.
The general rule is that carriers can get two IMEs a year.
Of course, if you fail to attend an IME, Section 314 goes so far as to allow the carrier to stop your benefits until you attend a rescheduled examination.
So, you’ve gotta show up at an office building and tell some doctor about the whole history of your injury – and before – and then be subject to yet another physical exam. There are of course general rules for attending an IME. First, you don’t have to bring any diagnostic studies or films despite what the notice might tell you. You are not required to be the insurance company’s servant. Let them do the work and get films if they want to review them. Second, you should be cooperative during the exam, but not volunteer too much information. Let the doctor ask you questions. If the doctor fails to ask vital questions, that can be used against him during cross-examination. Your attorney may want to discuss the physical portion of the examination more with you.
You should be reimbursed for your mileage if you drive to the examination.
Interestingly, Section 314(b) does give you the right to hire a doctor to attend the IME with you. Unfortunately, this is a cost that is not reimbursable to you by the carrier. It may be difficult to even find a doctor who would be willing to attend an IME as an observer.
When our clients attend an examination, they are given a brief form to complete after the exam, so we can begin to prepare for the doctor’s report. Naturally, when it becomes “your time”, we will be prepared and on your side.
by Karl Voigt
If marijuana law is a particularly dynamic field of practice, then marijuana law as it pertains to Workers’ Compensation law is even moreso mutable. We have all seen news coverage of individual states trying to get a handle on changing legal standards with respect to marijuana growing, sales, and use. Only now are we beginning to see coverage of new stories that involve using marijuana to treat work injuries.
Two very new cases come to us from Maine, where medical marijuana is legal. Both come from the state’s Workers’ Compensation Board Appellate Division and both serve to advance the use of marijuana to treat injured workers’ chronic pain. In Bourgoin v. Twin Rivers Paper Company, WCB App. Div. No. 16-26 (August 23, 2016) and Noll v. Lepage Bakeries, Inc., WCB App. Div. No. 16-25 (August 23, 2016), the appellate reviewers essentially determined that federal law does not prohibit requiring the workers’ compensation employer and insurer to pay for medical marijuana.
While Maine does prohibit private health insurers from paying for medical marijuana, there is no such prohibition against workers’ compensation insurers paying for that treatment. Therefore, in Maine, so long as it is found “reasonable and proper”, a workers’ compensation insurer can be compelled to pay for medical marijuana.
Pennsylvania’s law is not quite this liberal; the Pennsylvania Worker’s Compensation Act requires that workers’ compensation insurance carriers pay for work-related medical treatment. Because the US Food and Drug Administration (FDA) has never categorized medical marijuana as medical treatment, insurers in Pennsylvania likely cannot be compelled to pay for medical marijuana
Regardless, the Maine employers challenged the judges’ rulings, arguing that federal law prohibits use of marijuana as a controlled substance. Paying for medical marijuana, they insisted, would put them at risk for federal prosecution, as the federal government’s authority to prosecute drug crimes supersedes Maine’s. The appellate Board, referring to the federal Justice Department’s own public statements that interfering with state medical marijuana laws is not one of its enforcement priorities, ruled that there was virtually no such risk of such prosecution.
Both cases ultimately allowed not just for the injured worker to use medical marijuana for treatment of chronic pain, but also compelled the workers’ compensation carrier to pay for that treatment. This is just the most recent ruling in this fledgling area of law. Stay tuned here for updates.