Yearly Archives: 2015

What is secondary gain?

Workers' Compensation

Secondary gain is a psychological term that refers to a motivating factor that a patient has in reporting symptoms or complaints of pain. More simply put, secondary gain is an outside reason or benefit to complain of pain or symptoms. For instance if you tell your doctor “I think I broke my arm because the bone is sticking out of my skin” you obtain medical treatment. You also have a secondary gain in that you may get paid time off of work or even a little extra attention from your family.

The phrase secondary gain in its accurate use does not imply that the patient even recognizes or realizes the gain that is being given to them. Specifically, it does not require or include any type of conscious thinking on the part of the patient.

Unfortunately, in workers’ compensation circles the term secondary gain is often interchanged with the term malingering. Malingering involves an intentional lying about a condition in order to obtain benefits. In a workers’ compensation claim malingering can, and obviously should, be avoided but secondary gain cannot be. That’s why we are offended when rehabilitation nurses and some doctors roll their eyes when they use the term secondary gain. Many of them act like you receiving surgery to repair an injury you suffered due to your employer’s negligence is a sign that you’re a bad person. We think that is unfair.

Can my employer make me do a fake job?

Workers' Compensation

We don’t like it one bit, but the answer is “probably.” If you are in the “healing period” before you reach maximum medical improvement then your employer can ask you to come to work and do just about anything as long as it is within the doctors’ restrictions. Once you are at maximum medical improvement, however, you can only be asked to perform a real job – one which they would offer to someone not on workers’ compensation or one which their competitors would offer to you.

Why don’t we like this law? It’s a new law and we’ve seen what we think is an abuse of it. Injured workers are asked to come to work and then are written up and/or fired over petty reasons, things which would never have gotten them in trouble before. At that point, the adjuster still has to provide medical treatment but she isn’t required to put you on weekly checks because you’re being out of work is due to “misconduct.” To be fair, there have been studies done which suggest that workers will heal quicker if they are out and about rather than just sitting at home watching daytime television (and lawyer ads…) so the idea is fine. But just be careful if you’re back at work on a fake job.

A couple of things to note: First, you should have your examination in private and the nurse talks to you and the doctor together afterword. Second, the nurse has to copy you on all correspondence between the adjuster and herself. Third, the nurse is supposed to be providing you with a copy of her monthly report.

What if I had two jobs when I got hurt?

Workers' Compensation

This is fairly common. You’re average weekly wage is based on what your earned on the job where you got hurt. This is true even if you’re disabled from the other job. While that is difficult for you as a practical matter it’s only fair that your employer’s liability be limited to taking care of you on this job. The good thing is that you are entitled to make money on the other job without workers’ compensation taking a credit for it unless you expand your hours or are making more money on the other job now that you’ve got more time for it. This is always a tricky situation and really requires a good conversation with an attorney.

My employer is sending me to the company doctor. It’s an accepted claim, right?

Workers' Compensation

No! It’s very common for an employer and/or an insurance company to send you to their handpicked doctor in hopes of getting a report from him saying you weren’t really hurt, or that you can work, or some other opinion which is favorable to them. If the doctor says something that they don’t like – expensive evaluations like an MRI or taking you out of work – the defendants turn around and deny your claim. Your employer’s only responsibility is to pay for the authorized visits with this doctor. They have NOT accepted your claim.

If your company or their adjuster is telling you to go to a specific doctor you should ask them if they’ve accepted the claim. This is done on a Form 60 or, if the claim is accepted while they investigate, a Form 63.

What’s the difference between a Form 60 and a Form 63?

Workers' Compensation

These are the two forms which defendants use to accept a claim before the Industrial Commission. A Form 60 is an outright acceptance of the claim. It’s difficult for an insurance company to get off the hook if they’ve filed this. As a result you are more likely to see an adjuster file a Form 63.

Technically, a Form 63 is supposed to be used if an adjuster isn’t sure if a claim is compensable. She has 90 days to investigate the claim and then deny it if she needs to. If she takes no action within 90 days the claim is accepted. There are two things to look out for. If you have a Form 60 it may be very limited – they are only accepting your low back, not your hips, legs, or upper back for instance.

Additionally, a Form 63 is often misused as a 90-day trial. If your case looks like it’s going to be expensive the claim is going to be denied without regard to the actual facts of how you got hurt. We’ve actually had an adjuster testify to that tactic, under oath, before the Industrial Commission.