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Cutting Loose Never-Ending Comp Claims

Strategies for positioning problematic cases for closure

May 18, 2022 Photo

We have all been involved in those problematic types of claims where it would appear there is no end in sight: Income or lost-time benefits seem to be never ending, and the medical component of the claim seems to be spiraling, as well. It can be frustrating when the status quo appears resistant to change. Even when the fact pattern seems hopeless, however, there are certain courses of action that potentially can provide traction and position your most problematic case for a reasonable and cost-effective closure via settlement.

While state laws and local rules may vary on some of these topics, and this article is written from the perspective of a Georgia workers’ compensation defense lawyer, many of these strategies can be pursued nationwide. Nevertheless, organizations and/or individuals should always review their jurisdiction’s own relevant statutes and case law to ensure compliance with local rules.

Return-to-Work Process

In a claim where income benefits are continually being paid, the ability to return the claimant to a suitable light-duty position and suspend such benefits provides strong leverage for closure. Indeed, an employer/insurer is in a much stronger bargaining position at a settlement mediation if income benefits are no longer being paid. Typically, if a suitable light-duty position is available, the claimant’s authorized treating physician is willing to review and possibly approve the job.

In Georgia, this process has a number of technical requirements found under O.C.G.A. § 34-9-240 and corresponding Board Rule 240. If the statute and rule are not followed, such failure can invalidate the return-to-work effort.

First, a written job description must be sent to the authorized treating physician and simultaneously forwarded to the claimant and his attorney. Also, at the time the physician reviews and approves the job description, the claimant must have been evaluated within the last 60 days. Once the position is approved, the employer/insurer will then need to send a written job offer to the claimant, attaching the approved job description and providing at least 10 days of notice prior to the start date of the position, a process outlined in Board Form WC-240. When the claimant then appears for and accepts the position, income benefits can be suspended.

If the above process was correctly executed, income benefits can likewise be suspended in the event that the claimant fails to appear for the approved job. Either way, with the suspension of income benefits, employers/insurers are now in a stronger leveraging position to try and close a file.

While the return-to-work process is typically a temporary solution, recognizing the claimant’s restrictions often cannot be accommodated long term. Employers/insurers can strike while the iron is hot and make efforts to negotiate a favorable settlement as soon as benefits are suspended. Indeed, even the threat of suspending wage benefits in this manner can incentivize the claimant and opposing counsel to be more reasonable in settlement negotiations.

Georgia has a number of technical rules that must be perfected to validate this return-to-work process. Many other jurisdictions will have a variation of these types of return-to-work requirements, so understanding the jurisdictional guidelines is important. A great deal of effort and expense can be wasted if the procedural requirements are not followed.

Surveillance and Doctor Conferencing

Surveillance and doctor conferencing are two other courses of action that, when used, can change the entire trajectory of a claim. In accepted claims where income benefits are continually being paid and the employee is not working, surveillance can be an effective means of obtaining useful information and monitoring an employee’s activities.

Indeed, some claimants are not always truthful when being examined by an authorized treating physician. They might mislead as to the level or frequency of their symptoms, or they may not accurately report the level of activity in which they can engage. They understand the stakes and, unfortunately, may not always have the best intentions when pursuing a workers’ compensation claim in the first place.

For example, consider claimants who use a cane when presenting to their doctor’s office, limping through the parking lot and into the exam room. Treating physicians see this presentation and little else, since they only have the opportunity to observe claimants in the office. However, with the help of a private investigator, the claimant is later recorded playing basketball at a local gym, running up and down the court without issue. Once such video is obtained, the opportunity then arises to conference with the claimant’s physician to observe the video.

Typically, treating physicians will not appreciate the fact that claimants are not being truthful during their in-office presentations. Many will fully understand the situation, which will lead them to opine that any injury has fully resolved. Under such circumstances, having the physician then execute a medical questionnaire or report to that effect will then provide the needed medical evidence to suspend income benefits and deny further care. This, in turn, could dramatically change the parties’ respective stances on a claim and position the matter for a reduced and quick closure.

As a cautionary note, some jurisdictions may not allow employers/insurers or their representatives to have unilateral and direct communication with claimants’ medical providers. Georgia courts, in particular, are unsettled on this issue. Accordingly, and as mentioned previously, be familiar with the particular jurisdictional guidelines before pursuing these strategies.

Independent Medical Evaluation

An independent medical evaluation (IME) can often be an effective tool for incorporating another expert medical opinion into a claim. Occasionally, authorized treating physicians—while doing a fine job treating the claimant and providing all reasonable and necessary care—can become somewhat indecisive as to the claimant’s diagnosis and appropriate future treatment plan. As a result, medical treatment can plateau. It is at this point when an IME can be useful.

In Georgia, under O.C.G.A § 34-9-202, employers/insurers can arrange for an IME at a reasonable time and place, and employees are obligated to attend if properly noticed. Different jurisdictions may have similar or starkly different procedures as to how to arrange these types of evaluations. Under a best-case fact pattern, an evaluating physician might opine that, given the amount of care rendered to date, the injury at issue has been appropriately treated and resolved. If an employer/insurer is able to obtain such an opinion, it can then be provided to the authorized treating physician for consideration (barring any jurisdictional restrictions on such direct contact and communication). With another physician’s supporting opinion in hand, the authorized treating physician might then agree to the evaluating physician’s opinion, which would serve to dramatically change the employer/insurer’s position on the claim, especially where income or lost-time benefits and an inordinate amount of medical treatment have been provided.

Under such a scenario, a problematic, expensive, and potentially complicated claim has been mitigated to what most likely can now become a reduced and cost-effective closure—well worth the expense of a physician’s evaluation.

Hopefully, these types of claims in which expenses are becoming exceedingly high for both income benefits and medical treatment are rare occurrences. Should you find yourself with one, though, consider incorporating these strategies to determine if the status quo can be altered. Often, it is well worth the expense to pursue such an action plan; just be sure you are within your rights and obligations pursuant to local jurisdictional rules. Hopefully, the results will be very rewarding. 

About The Authors
Blake Staten

Blake Staten is a partner in the workers’ compensation practice area at Swift, Currie, McGhee & Hiers, LLP in Atlanta.  blake.staten@swiftcurrie.com

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