The Wonderful World of Workers' Comp

Q. On November 3, 2006, I was in an accident while riding a volunteer ambulance late in the evening. I went to the hospital, had an xray done. The appropriate workmans comp people were contacted, and claim filed. The case worker contacted me and had an appointment set up for an orthopedist in the "group" A week later, I arrived at my appointment. The doctor pulled the sling off me, told me I didn't need it, that I was "fine" and "go to PT". Then he gave me exercises to do at home which was "crawling up the wall with my hand". I explained that I can't lift my arm, I have intense pain. But he dismissed me. I went to PT for over a month with no results. The clinicians were baffled when I told them I had no tests, no MRI's, nothing since the xray from the emergency room. I called my case manager after the 2nd appointment where I had gotten ZERO treatment and then was told to take 1800 milligrams of Advil "because your fat enough, you can handle it". I couldn't take it anymore. I demanded another doctor, which I did finally get. He treated me with medication and 2 cortisone shots within the first 5 minutes of the appointment. this went on for another few months, due to the process of workmans comp, they can't just go into surgery. This new doctor took 2 MRIs and I ended up in surgery on May 11, 2007. The surgery ended up being a full open repair. I had a massive full thickness tear as well as a fracture. I lost time from work, I lost time teaching, that I NEED in order to keep my certification. I know this doctor is a quack. His lax approach and refusal to even help me or bother to see what was wrong has me wondering.. Do I have a case?

A. Ah, yes. Workers’ Compensation Law – a very interesting and unique field of practice that very rarely makes any sense to folks – including attorneys – who don’t practice in the field regularly. In order to answer your question, I have to give you a little background so that the answer might make a little sense.

Workers’ Comp was designed to eliminate personal injury claims by employees against employers for injuries suffered at work. The theory was (and remains) that workers get injured all the time and if employers had to pay for personal injury claims in civil court, they might eventually become bankrupt because of all the lawsuits they might face. So the legislatures in each state came up with the workers’ comp law. Work-related injuries are considered part of the cost of doing business. The legislatures designed charts and schedules that have set dollar amounts for specific types of injuries so that employers can better insure against them and afford them as part of their operating costs. That’s because a jury can look at a terrible injury and, because they feel bad for the plaintiff, give a huge award. In workers’ comp, each injury is worth only so much money, no matter how you became injured, and no matter how sympathetic you might be.

In addition, in some (but not all) states, the employers get to control treatment of work-related injuries. The employers will send injured employees to doctors that the employer selects in order to 1) get the employee back to work sooner, rather than later, and 2) keep costs down. That’s because your family doctor knows you, will likely sympathize with you, and has very little incentive to get you back to work if you don’t want to go. That’s not the case with comp doctors. Their incentive is to treat you as necessary, with an eye towards getting you back to work if possible and as soon as possible. I don’t mean to suggest that the comp doctors are not treating you properly, completely, or with your best interests at heart. It’s just that comp doctors don’t have the same kind of personal connection with you that your family doctor has, so their treatment may seem less “warm and fuzzy.”

When you have a comp claim, you are entitled to receive all reasonable and necessary treatment to cure and alleviate the effects of your injuries. That doesn’t mean all of the treatment you might want; it means whatever the doctors say you need. If you don’t agree with what the doctors are suggesting, you can ask for a second opinion. Generally, however, the employers do not have to get you one. If the employer doesn’t, and you still want one, you can either file a motion with the Compensation Court asking for one, or go to your family doctor and get one. The risk of going to your family doctor is that, unless the employer says it’s okay, you are receiving what’s considered “unauthorized” treatment. Any bills for “unauthorized” treatment will likely be your responsibility.

It sounds as if you eventually did get the treatment you feel you needed after this accident, which is good. It also sounds as if you are frustrated over what you perceive to be a lack of care by the original authorized doctor, which is understandable. However, I’m not sure what claim you are looking to assert against the doctor. Are you asking about malpractice? I don’t see any, based on what you’ve written. I see indications of a doctor who had one opinion as to what you needed, followed by a course of treatment with another doctor that was different from what you were getting with the first. Doctors disagree all of the time, and that fact alone is generally not enough for any kind of civil claim. If the doctor actually and actively committed some “bad” act which increased or otherwise worsened your condition, you might – and I emphasize “might” – have a claim. But I don’t see that anywhere in what you’re telling me. On top of that, as an authorized comp doctor, there is an argument that he would be protected from a malpractice suit because he was treating for a work-related comp injury. (The argument might not work, but it’s out there.)

You should know that you still may have remedies in your comp claim. If you missed time from work as a direct result of the injuries, you may be entitled to temporary disability benefits. As a result of the surgeries, you may very well be entitled to permanent partial disability benefits. These are things you should discuss with a workers’ compensation attorney. If you don’t already have one, you should get one, discuss the facts with him or her, and see what your options are.

Good luck.

David Kendall