Knee Injury

Don’t settle without speaking to an attorney

Juanita worked for a local hotel doing maintenance work. She tripped over an extension cord and broke her leg. After a course of conservative therapy – injections, physical therapy, etc. – she needed surgery. Isurity, the insurance company on the case, authorized this and she had surgery involving a bone graft. Following the surgery, though, her knee gave her problems. Despite this Juanita went back to work and attempted to limp along. Isurity refused to authorize any treatment for the knee.

Juanita hired a local attorney who filed a Request for a Hearing. The Industrial Commission ordered the case into mediation. At the mediation Isurity offered Juanita $19,000.00 to resign her position from the local hotel and to give up the right to future medical care. Her attorney strongly recommended that she take this.

Juanita was uncomfortable with that settlement amount because her knee was in pain and she did not have health insurance. She asked us to look at her case. We recommended that Juanita return to her doctor, get an out of work note, and allow us to pursue the treatment on the knee.

Juanita switched attorneys at no expense to herself and began following our advice. We quickly were able to have her removed from work, had her weekly checks reinstated, and then used a quicker alternative method with the Industrial Commission to get approval for the knee surgery.

Isurity reluctantly paid for the knee surgery, and continued to pay Juanita for another two years while she recuperated. Isurity paid to and for Juanita far more than the $19,000.00. In the end we negotiated a larger, more reasonable settlement on her behalf. After the case settled we gave Juanita’s former attorney a portion of the overall fee. Juanita only paid a total fee of 25% which was split between the two firms.

Is it wise to settle prior to getting medical treatment? Can you change attorneys? How quickly would you use up that settlement money? Will the Industrial Commission sometimes quickly approve medical treatment?

Lessons to be Applied…

  • Do not let an attorney pressure you into a settlement.
  • If you settle prior to having medical treatment have a plan in place for paying for this. Sometimes it’s wise to settle, sometimes not.
  • It’s a mistake to only look at the settlement in a case. Look also at the total amount of benefits received. Balance this against the money you may be missing out on with a new job.
  • In short… don’t settle without at least talking to an attorney! We’ll tell you if we think it’s fair or if we may be able to get more for you. And we can give you an idea of how long it might take to do so.

How Much Can An Employer Modify A Job?

Modified Return to Work

Elijah was an over-the-road driver for a major furniture company. He traveled all over the United States delivering truckloads of furniture. Although not at every stop Elijah often had to assist with the unloading. Elijah made excellent money despite the fact that he had only a GED.

Elijah twisted his knee and tore the cartilage in it requiring a surgical repair. Broadspire authorized this and the surgery went fairly well. A couple of months after the surgery Elijah’s doctor ordered a Functional Capacities Evaluation. Elijah gave full effort in his FCE and was released to return to work with a medium work load. The doctor clarified this to limit Elijah’s lifting to nothing over 50 pounds, and no bending, stooping, or squatting. Importantly, the doctor limited Elijah to sitting no more than 5-6 hours per day total. Additionally he noted that Elijah had problems with his knee stiffening up on him within a fairly short period of time – as little as an hour.

Broadspire notified Elijah that his employer had a new opening for a truck driver that would be a no touch position, no unloading freight ever. Obviously this addressed the issue of Elijah not lifting over 50 pounds. We looked at this position very carefully and it did seem to be a legitimate position. The employer was able to explain that this was the first of a several new positions which would be no touch. So we were satisfied that it was a real job. However there were two other problems with the job.

First, in order to do a proper DOT pre-trip inspection a driver is supposed to look under vehicle to inspect the brakes, wheels and rims, axle, transmission, and rear end. While it was hypothetically possible to do this without bending, stooping, or squatting no one could remember seeing any truck driver ever gently lie down on a creeper and roll around on his back to do the inspection. Yet that was precisely what Broadspire suggested that Elijah do. In fact Broadspire hired a vocational “expert” to testify to exactly that!

Second, Elijah was limited to sitting for no more than five or six hours per day. Yet this driving job, like virtually all over-the-road jobs called for eleven hours of driving over the course of a fourteen hour day. Broadspire’s “expert” got Elijah’s doctor to clear him to drive a truck so long as it was not more that six hours per day.

It was at this point that the interests of the employer and the insurance company separated. Broadspire was paying Elijah the maximum compensation rate and Elijah lived in a rural part of North Carolina. There was little other work around and absolutely nothing Elijah could do in a comparable pay grade. So if Broadspire couldn’t get Elijah back to work at his employer they would be paying benefits to him for a long, long time.

The employer, like most employers, was more than willing to pay Elijah good money as long as Elijah was able to give them a full honest day’s work. For several years he had been able to do that. The employer did not want to – and no offense to Elijah – pay him full salary to work half-time. And they didn’t want to keep a very expensive truck idling around truck stops all over the country.

Broadspire hired an attorney to take Elijah to a hearing before the Industrial Commission. We successfully convinced the Industrial Commission that the modifications which Broadspire claimed the employer could make were so drastic that the no other trucking company would ever offer Elijah the same deal. As such the modified job was not a “real job” which would be available in the competitive labor market. The Industrial Commission agreed.

How much can an employer modify a job for you to return to? What happens when the insurance company’s interests are different than your employer’s interests? How does a truck driver do a pre-trip inspection with a bum knee? Why is it important for your doctor to really understand what your job requires?

Lessons to be applied…

  • The insurance company’s goal is to stop paying you weekly checks.
  • Your employer is willing to pay you weekly checks if they can get get a week’s worth of work from you. In the long run they probably won’t like paying you to do just “be there.”
  • If there are particular parts of yoru job which are unusual it is important that your doctor understands these. In Elijah’s case he couldn’t very well get out of his truck every ten minutes to stretch out his leg – and he needed that leg to use the brake and gas pedals safely.
  • Sometimes the expert hired by the insurance company knows what the “answer” is supposed to be and tries to make the facts fit that answer. It takes a lot of work to prevent them from succeeding.

Do State Claims Get Denied More Frequently?

State Employee Has Trouble With Corvel

Maria was a surveyor for the Department of Transportation. She was staking out an area for roadwork when she slipped and fell down the embankment. She immediately felt awful pain in her left knee. Sure enough, she tore a ligament – the anterior cruciate ligament – and needed surgery.

After the surgery Maria couldn’t return to her old job as a surveyor right away but was able to do some office work for the DOT. Unfortunately her knee often gave away causing her to fall. One day she walked into her garage, went to get in the car, and her knee gave way. Instinctively she caught herself with her arm that was touching the car. This was not enough to break her fall – in fact Maria tore her rotator cuff in that shoulder on the way down.

Maria went to her doctor immediately and explained to him what had happened. It all seemed pretty straightforward. Until Corvel got involved.

In order to explain this better it is important to understand that most government agencies or departments are self-insured for both workers’ compensation and major medical insurance. So if you work for the Department of Corrections, or a school system, or some other state agency there is a good likelihood that your health insurance is through Blue Cross/Blue Shield and that your workers’ compensation adjuster is with Corvel. But it is all the State of North Carolina’s money. The state simply hires BCBS or Corvel to take care of all the paperwork and handling of claims.

Whether it is intentional or not we have seen Corvel being pretty aggressive in denying claims. While we cannot prove it our impression is that they don’t believe they are at great risk even if they lose the case (which, peeking ahead in Maria’s story, they did). Ordinarily an insurance company has to weigh the odds in denying a claim. If they lose at the Industrial Commission then they have a lot of exposure – they are exposed to the risk of paying out a lot of money in medical treatment, often more than they would have if they accepted the claim in the first place. That is not true with State of North Carolina agency claims. Because the State is already paying the medicals bills – through BCBS – Corvel seems to be a little more free and easy in denying claims.

It would have been easy for Maria to just shrug it off, but that’s not her style. She doesn’t like being taken advantage of. So Maria came to us seeking help.

We filed for a hearing, had Maria explain her story, and went to talk to the doctor. The doctor backed up Maria because there was documentation that her knee had been giving way and because she promptly reported the events to him. Plus she consistently described the events the same way every time. Maria was believable. The Industrial Commission believed her to and we won the case.

The Industrial Commission ordered Corvel to pay Maria weekly checks for the period of time that she was out of work for her shoulder surgery, received a reimbursement of her co-pays and deductibles, and her employer was required to accommodate her restrictions.

Unbelievably, Corvel appealed. We scratched our heads over this and it turns out we were not the only ones confused by it. When the attorneys appeared before the Full Commission to argue their clients position panel at the Full Commission grilled Corvel’s attorney. Did Corvel dispute Maria’s story? No. Did Corvel dispute what the doctor said about the rotator cuff being torn in the fall? No. What was the legal basis of Corvel’s denial and appeal of the claim? Silence. The defense attorney hemmed and hawed and finally said “My clients just don’t think they should have to pay for it.”

Do State claims get denied more frequently than other claims? Does it make a difference if your employer is self-insured for both workers’ compensation and for major medical insurance? What happens when the first injury causes another injury? Do adjusters always have solid grounds for denying claims or filing appeals?

lessons to be Applied…

  • Corvel, when handling claims for State employees, is often aggressive in denying claims.
  • When an employer is self-insured for both workers’ compensation and also health insurance they may be more aggressive in denying claims.
  • When the original workers compensation injury leads to another injury the second injury is supposed to be covered as well.

Can you be compensated for loss of overtime hours?

CNA Gets Back Pay On Overtime

Sarah tore her rotator cuff while working with patients at a local hospital. As a CNA she needed full use of her arms to move patients. Prior to her injury she had a high hourly wage and received a lot of overtime hours.

Sarah underwent two surgeries to repair her shoulder. These were modestly successful and Sarah was returned to work with a ten-pound restrictions on lifting, pushing, or pulling. As anyone who has ever done hospital work knows, many patients are incapable of moving themselves. They cannot help the nurse in any way.

When Sarah returned to work two things happened. First, the hospital quit giving her overtime. Second, her co-workers asked her to do things which were out of her restrictions. When Sarah declined her boss wrote her up – creating a paper trail which made it look like Sarah was a mediocre employee.

We Intervened

Right off the bat we were able to get Sarah paid for the loss of her overtime hours. It is critical that your average weekly wage is correctly calculated. In Sarah’s case, as is the case for many, many of our employees, it was based only on a 40-hour week. So we had it corrected to include overtime and secured for Sarah a nice check for back pay.

The next thing we did was to issue a set of written questions to be answered by Sarah’s employer regarding requests for her to work outside her restrictions. This put the employer on notice that we had Sarah’s back and were watching their every move. Almost immediately the requests ceased.

The hospital came to us and asked if we could talk settlement. After a discussion with Sarah and her family it seemed like this was her best option. The hospital really didn’t have a position for a CNA with restrictions like Sarah’s. And Sarah wasn’t enjoying going to work everyday and not being able to participate in the patient care.

In the end we were able to reach a settlement which compensated Sarah very well for her loss. And when the dust settled Sarah was able to find a home health job which let her work with patients – which she loved doing – but be able to limit her work to that within her restrictions. This was a definite win for Sarah.

What can happen when your employer doesn’t really have work within your restrictions? Should you be compensated for the loss of your overtime hours? If you return to work but get fewer hours are you entitled to be paid? What do you do if it looks like your employer is setting you up to get fired?

Lessons to be Applied….

  • Your average weekly wage includes all of your bonuses and overtime hours.
  • If you are incapable of earning as much after the injury as you were before you get two-thirds of that wage loss. This is called temporary partial disability.
  • You get temporary partial disability even in situations where you can do your forty-hour week but the employer doesn’t give overtime to people on workers compensation.
  • It is often in an injured workers’ best interests to settle their case and move to a different employer where they can get a fresh start.

Trucker Injured Out of State

Out of State Injuries

Keith is an over-the-road truck driver. While he lived in North Carolina, his employer was based in Mississippi. He was hired in North Carolina. Unfortunately, Keith sustained an on-the-job back injury while picking up a load in California.

Keith reported the injury to his dispatcher shortly after it happened. He had hoped his back pain would go away but it did not. The long drive back across the country was too difficult and he never made it past Texas. He sought medical treatment there. The employer sent another driver to pick up the truck and deliver the load. Keith was left to find his own way back to North Carolina. When he got home, he was in need of significant medical treatment for a herniated disc in his back. He would ultimately have surgery and extensive therapy for his injury.

His employer was self-insured. In North Carolina, employers with three or more employees are required to carry workers’ compensation insurance for its employees. One way to do this is to purchase coverage from insurance companies. Another way is to be self-insured. That is where the employer provides its own coverage for its employees. Most self-insured employers are larger employers.

Even though the injury was reported soon after it happened, the employer was slow to do anything. Keith wanted medical treatment but the in-house workers’ compensation adjuster refused to approve benefits. Months passed and Keith found himself out-of-work, injured and desperate.

When he came to us, we immediately filed for a hearing to force the employer to properly provide benefits under the Workers’ Compensation Act. The employer’s first response was that this claim was not under North Carolina’s jurisdiction. It produced a letter that Keith had signed when he was originally hired that any and all workers’ compensation claims must be filed in Mississippi. Workers’ compensation laws vary greatly from state to state. Some states provide significantly less benefits than others. Mississippi was one of those states.

Letters like the one Keith signed do not prevent injured workers from pursing claims in North Carolina provided the claim meets the other necessary jurisdiction requirements. The North Carolina Workers’ Compensation Act does not allow employers to contract around the requirement to carry coverage for its employees. In North Carolina, the employer must provide coverage for its employees and cannot have the employee assume the risks, even if both parties previously agree in writing. Some states may allow this. North Carolina does not.

And this was good for Keith. At the time, Mississippi capped weekly benefits at $387 per week; North Carolina allowed for weekly benefits as much as $754 (in 2014 the max rate is $912). If forced to bring the claim in Mississippi, the maximum he could have received was nearly $400 per week less.

Keith’s employer ultimately resolved the claim in a lump sum settlement based on North Carolina Workers’ Compensation Laws. He was able to get the treatment he needed and move on with his life.

As general rule, for accidents occurring outside of North Carolina, a claim can be brought in North Carolina if: (a) the contract of employment is made in this state; (b) the employer’s principal place of business is in this state; or (c) the employee’s principal place of employment is within this state.

What happens if my injury by accident occurs outside of North Carolina? Why does it matter if my employer is self-insured? What happens to my claim if my employer forced me to sign an agreement to only bring workers’ compensation claims in other states? Why should I care what state the claim is brought in?

LESSONS TO BE APPLIED…

  • You can still bring a claim in North Carolina even if the injury by accident occurs outside of North Carolina.
  • Because benefits vary greatly, you want to make sure that you bring your claim in the state that addresses your condition the best. Some states provide fewer benefits than North Carolina does.
  • Self-insured employers sometimes contest claims more aggressively because the money used to pay claims comes from it directly rather than a third party insurance company.
  • Don’t fall for an employer’s claim that you can sign away your workers’ compensation rights. An employment contract signing away your rights before a claim is brought, does not prevent you from obtaining benefits under the North Carolina Workers’ Compensation Act.