A recent Georgia appeals court case ruled that injured workers do not need to give permission for their doctors to speak with their employers’ attorney outside of their presence before they can receive workers’ compensation benefits for an on-the-job injury.
The case highlights an injured worker who suffered an esophageal burn when she swallowed lye left in a cup similar to the one she always used. She signed a release of medical information and her doctor prepared a report. However, when the employer’s attorney sought to speak with the doctor, he refused until his patient provided express approval. The appellate court found that the injured worker was still entitled to benefits, because she did not need to authorize her treating physician to speak with her employer’s attorney. The court concluded that medical privacy in the Health Insurance Portability and Accountability Act extends to workers’ compensation proceedings.
While the holding in this case is important, a more common concern is the influence of medical professionals who advocate on behalf of insurance company interests.
The insurance company, in many of these types of cases, will hire and assign a nurse or case manager to a particular workers’ compensation claim. These medical professionals will then come to scheduled doctor’s appointments, many times before an injured worker has had the opportunity to speak with a workers’ compensation attorney.
For instance, a doctor may see an injured delivery driver who suffered a lower back injury while on the job. He cannot return to work, because the duties of his job involve lifting. The nurse or case manager, who is at the appointment, may mention how much the company appreciates the worker and that a light-duty office job will accommodate the injury.
However, this may be a conflict of interest. A nurse working on behalf of the insurer has an incentive to get the worker back on the job as soon as possible. Once the worker is back on the job, the insurer no longer needs to pay the workers’ compensation benefits.
In this instance, the delivery driver may be given a data entry job to accommodate the restricted mobility; however, he is making his past wage. The employer may not find it economically viable to pay the higher wage especially for a lower skill job. Further, the delivery driver may not have the right skills to complete the new duties. If this continues, the employer can generally fire the employee without consequences.
The rationale behind workers’ compensation insurance is to pay the costs for medical care and rehabilitation when workers suffer on-the-job injuries. The insurance also pays lost wages and death benefits in the most serious cases when a worker is killed on the job. However, the workers’ compensation scheme generally provides the only remedy for on-the-job injuries.
Georgia state law controls many of the aspects of the claims process. The claims process is complex and the insurance company will seek speedy resolution of a claim to minimize costs. Immediately after a workplace injury, calling a workers’ compensation attorney is important. A lawyer can offer advice on rights under the law and make sure there is adequate recovery time prior to returning to work.
When employees return to work before they have fully recovered from an injury, it shifts costs from the insurer to the employer. This also put employees in a bind. Get back to the old duties and suffer another injury or a worsening condition or face possible termination. Once fired the employee has no avenue to seek relief.
Insurers are constantly looking for ways to control workers’ compensation costs. While safety measures are important, accidents will still happen. The insurance companies know this, so they seek to keep costs down in the claims-management process. Some recommendations that insurers offer employers include building strong return-to-work programs and collaborating with clinics that understand such programs.
Insurers are also starting to use predictive modeling to cull out “red flag” claims. These are problematic claims that might become more expensive to resolve. High-expense claims drive their overall loss dollars. These could be cases with very serious injuries or that morph into expensive claims due to risk factors – hypertension, diabetes or obesity.
Workers’ compensation reform is a hot topic all across the country. In Georgia, recent legislation limits workers’ compensation protections in franchise relationships. Governor Nathan Deal signed the legislation in May that prohibits a franchisee from being considered the employee of a franchisor so the franchisor does not have to provide workers’ compensation benefits to a future injured franchisee. The new law views the franchise relationship as solely contractual and not one of employment.
Because of the complex nature of the workers’ compensation process and possible conflicts of interest for the many parties involved, it is important to seek the counsel of an experienced workers’ compensation attorney if you are injured on the job. An attorney can help navigate the claims process from initial filing to any necessary appeals and make sure your rights are protected.
Hilley & Frieder can handle all aspects of you case virtually from interview through conclusion. We are open and available to help you. Please view our complete COVID-19 statement to learn more about the steps we are taking to ensure that your case continues to move smoothly in this environment.