The Case Nurse — Helpful Friend Or Insurance Company Investigator?

They introduce themselves with the title of nurse, with a friendly smile, and with encouraging words. After all, nurses are supposed to help us in times of injury. Is she really working for you? Or, is the truth something far different?

I regularly advise my injured clients concerning the use of case nurses in workers’ compensation claims. Instead of being a helpful medical advocate, case nurses are often insurance company investigators in disguise.

How do case nurses go from helpful nurse to investigator? They begin asking questions about non-medical issues. They ask about issues such as your finances, your education, and your work history. They ask about bankruptcies and arrests. Do these topics have anything to do with your actual medical care? No. However, your answers may be useful to the insurance company looking to defend or deny your claim. You don’t have to answer them. You would be wise not to answer them.

Case nurses also often ask you to sign releases so that they can obtain records and information. They tell you the releases are needed to get your medical records so that they can help with your care. That’s not always true. If you read the releases closely, you will see that they often allow the insurance company to obtain your financial information, past employment information, school records, privileged psychological records, or medical records completely unrelated to your injury. Did the case nurse tell you that the insurance carrier in Alabama already has access to the records from the authorized physician treating your injury? If the insurance company has these records, then why do they need signed releases? You should not sign releases without getting good legal advice.

Be careful with the information you provide a case nurse assigned to your claim. Some case nurses genuinely want to help you with a complicated medical system. Unfortunately, many of these nurses handling comp claims see their job as helping the insurance company at your expense.

Leave a comment

Four Tips To Help Your Recovery From Back Surgery

Has the doctor authorized by the workers’ compensation carrier recommended spinal surgery? If you are facing surgery, it can really be a scary time. I know a lot of surgeons in Alabama who are very good at operating on patients but not so good at explaining what can be a difficult process of recovery. So, when I see practical advice from surgeons, I like to share it on this site.

A group of spinal surgeons in California provides four practical tips for patients after undergoing spinal surgery. Their practical advice for patients recovering from back surgery is:

  1. Don’t Smoke — I know. This is obvious advice. You’ve heard it from doctors, friends, and family. Smoking is bad. It is bad for you in a lot of ways. However, it is especially bad for you after a spine surgery. As these surgeons explain, smoking affects the healing process and can cause a spinal fusion to fail. In my law practice, I have represented many clients with failed back fusions. These clients have tremendous difficulty functioning and often suffer chronic pain problems. Clients suffering failed back syndrome can have long-term problems returning to work.
  2. Exercise — Again, this advice is obvious. However, I can tell you that this is one of the biggest issues I have seen in my law practice. I have had clients who felt so much immediate improvement after surgery, that they tried to resume all normal activities without continuing their therapy and exercise program. Other clients still hurt and lose faith in their medical treatment. Either way, it is a bad idea to not follow the therapy or exercise program prescribed by the doctor. The doctor’s prescribed exercise program is designed to improve your back muscles.
  3. Follow-up With the Doctor — In workers’ compensation cases, physician follow-up is always a problem. Often, the insurance company is at fault for not approving a visit. Sometimes, the insurance company fails to schedule follow-ups or, worse, fails to tell the injured worker about the appointment. Follow-up visits are important. Your surgeon needs to monitor your healing and recovery.
  4. Weight Gain — Weight is a major issue. Before your injury, you were active. You went to work daily. You did things with your family. Suddenly, you were hurt and could no longer function well. Many of my clients experience major weight gain following their injury. Weight gain can cause further strain on your injured back.
This advice may seem simple. However, these little things can play a tremendous role in your recovery and return to work.

 

 

 

Leave a comment

Work Comp Carriers Seek To Limit Medical Care Through So-Called Reforms

A primary purpose of Alabama’s Workers’ Compensation Act is to provide medical care to injured workers so that they may heal and return to gainful employment. Yet, the system often fails injured workers. When the system fails, all of us suffer the costs.

The last year has seen efforts by the insurance industry to reduce medical benefits in many states throughout the United States. All of these efforts come at the expense of workers and their families. Here, in Alabama, Senator Arthur Orr proposed a bill that would arbitrarily cut off medical care at a point in time. Make no mistake — someone will bear the cost of needed medical care. The question is:  Will the insurance carrier that collected premiums pay this cost or will the taxpayers bear it? If the insurance company does not use some of its collected premiums to pay the cost, then either the government will provide care through programs like Medicare or we will all pay the costs of lost productivity by the worker later.

As part of their efforts, the insurance industry has engaged in a media and lobbying blitz aimed at convincing everyone that costs are being driven by excess prescription medications, especially pain medications. Workers’ compensation attorney Jon Gelman recently had a great post on this issue titled “Sidetracked by Drugs.” I am going to copy it here (with full credit to Jon of course):

 Sidetracked By Drugs

The core health care delivery problems that exist in workers’ compensation are not being driven by the alleged excess prescriptions of pain relief medication. That is a symptom of a system that has been derailed.

The focus of major employer and insurance initiatives of so-called reform legislation in multiple jurisdictions has been to reduce the delivery of prescriptive pain relief. Actually, that is an enforcement issue only that globally exists in the health care industry. New York’s Mayor Michael Bloomberg, is working diligently to identify and database the few prescribers and physicians involved.  A national effort modeled after the New York process would go a long way to curtail excessive and unorthodox prescriptions.
To use the prescription drug abuse issue to attack workers’ compensation generally is merely sidetracking the real problem with the medical delivery system which is the global denial of compensability of workers’ compensation claims by employers and insurance carriers merely to delay and avoid payment of medical benefits.
The recent decision in Federal Court recognizing RICO violations by an insurance carrier, the employer medical expert, and the employer itself, puts the real focus on the problem.  That decision demonstrates the need to get the workers’ compensation train back on the tracks and redirect the system so that it pays benefits to injured workers in an efficient and timely basis.

I agree completely with Jon that this is an issue largely created by insurance carriers to attack the workers’ compensation system. If we want to deal with the few providers involved in prescribing excess medications, we could easily do so. The real problems in the system are the denials and delays in needed medical care. I hear these issues on a daily basis from my clients. Most injured workers want needed care as quickly as possible so they can return to work. I also hear from doctors who want to provide treatment but constantly have their requests delayed or denied. Then, when the doctor finally does get permission to provide the prescribed care, the carrier delays payment. All of this leads to frustrated and angry workers who don’t get better. It also leads to frustrated health care providers. Some of the best physicians eventually give up and refuse to take any more of these cases due to the administrative issues of approval and payment. The call to reform should focus on getting medical care to the injured workers who need it, not attacking them.

1 Comment

Brain Injury Can Result in Personality Changes Impacting Employment

A brain injury can produce significant personality changes. These changes can cause huge problems finding or keeping a job after the injury. Often, family members are in the best position to observe the day-to-day impact of a traumatic brain injury (TBI) upon an injured worker.

A recent article in Psychology Today tells the story of a nurse dealing with her husband’s personality changes following a brain injury. If you are dealing with an injured family member, you may be very familiar with the changes in mood, memory, thinking, and other personality changes that can result. The article in Psychology Today is well worth a read:

 

 After Brain Injury: The Dark Side of Personality Change

I often see clients who have suffered brain injury in an accident. Even a mild brain injury can produce significant disability when it comes to future employment. Yet, these injuries are often ignored. Why? A variety of reasons lead to this. The injured person may not understand their problems. Or, the injured person may be embarrassed to discuss their problems. Often, medical doctors who are very good at treating other physical injuries don’t even fully understand the impact of brain injuries. Finally, in workers’ compensation cases, the insurance carriers often try to ignore the problem to save medical costs.

However, a brain injury should never be ignored. Brain injuries can be complicated. You should seek an attorney who understands the issues involved in testing, treating, and evaluating these injuries. Here are a few quick tips I follow in cases involving brain injury:

  1. Interview family members and friends to understand the full impact of the client’s injury. These individuals will often be the most valuable witnesses to explain your client’s story.
  2. Involve medical professionals trained in testing and evaluating brain injuries. This requires that the attorney study and understand the various tests necessary to evaluate these injuries. It also requires the attorney to be familiar with the professionals in his area who are specially trained to provide this testing, such as neuropsychologists. Have the injured person tested by someone who is specially trained and well respected in the medical profession.
  3. Involve vocational professionals trained in evaluating the impact of the injury upon the workers’ ability to find or keep employment. It amazes me how many attorneys do not understand the impact of limitations upon employment. Credible vocational experts can explain to the court at trial how an injury can impact employment. Utilize these experts. Also, study and learn the huge amount of valuable information from the Department of Labor evaluating the requirements of different jobs.
  4. Involve the injured client and his/her family in the process. These cases are special. It can be difficult for families trying to deal with these injuries. Communication, emotion, and memory are all issues that can make it difficult for the family and for you as the attorney. If you are going to handle these cases, you have to be prepared for these unique communication challenges.
Leave a comment

Spinal Surgery – Explaining the Type of Procedure

Workers’ compensation clients will often call and tell me the surgeon wants to do back or neck surgery. Yet, the surgeon often fails to explain to the injured patient exactly what procedure will be performed. The patient suffering from an injury can be left with questions concerning the meaning of terms used by the surgeon. Unexplained terms such as discectomy, fusion,  and laminectomy, really don’t tell you much unless you already have some medical knowledge.

After years of representing clients in personal injury and workers’ compensation cases, I’ve long realized that being skilled in surgery does not necessarily make you skilled in talking with patients. Because of that, I have a huge respect for those surgeons who take a little extra time to answer questions from their patients about the procedures they want to perform.

I recently came across a short article that provides a basic description of the terms used for back and neck surgeries. The article also provides four basic health tips that everyone should consider when facing the need for surgery:

Surgery for a Herniated Disc

Written by Kamiah A. Walker; Reviewed by Jason M. Highsmith, MD

Although most patients with a herniated disc respond well to non-surgical treatments, some patients do need surgery. In general, surgery should be considered only after several months of non-surgical treatment. Many surgical procedures can be performed using minimally invasive techniques (meaning less cutting and entering the body). These techniques result in smaller incisions, shorter hospital stays, less pain after surgery, and a faster recovery.

 

woman with low back pain

 

Leave a comment

Traumatic Brain Injury And The Management Of Daily Activities

Traumatic brain injury (TBI) is a leading cause of disability. The impact of TBI upon a worker can be devastating. What’s worse is that the impact of TBI often goes untreated or unrecognized by our workers’ compensation system. Often, the insurance carriers and medical system ignore this disabling aspect of an injury and simply treat the other physical problems.

Research by the National Center for Injury Prevention and Control paints a disturbing picture of the disabling impact of traumatic brain injury. According to the study, each year:

  1. An estimated 1.5 million Americans sustain a traumatic brain injury; and,
  2. An estimated 80,000 – 90,000 people experience the onset of long-term disability from traumatic brain injury.

Personally, I think the actual numbers are much higher. Why do I think that? Because of personal case experience. I have helped many clients after a serious accident who were suffering the impact of a traumatic head injury. When those cases involved work-related injuries, the employer (and its insurance carrier) have frequently ignored the impact of any head injury. Instead, the employer readily treated the other physical injuries not associated with the head trauma.

Traumatic brain injury can produce a number of disabling problems. These include cognitive, behavioral, and physical problems. For a lengthy article on the various problems from TBI, you can read the research titled “Minimizing the effect of TBI-related physical sequelae on vocational return” published by the Department of Veterans Affairs.

Research published just a few days ago by the University of Alabama-Birmingham (UAB) puts an emphasis on the impact by a TBI on simple decision making skills necessary to function independently in society. This is an interesting article. According to the research at UAB, traumatic brain injury can present lingering problems that impact your ability to simply manage your own checkbook or pay your own bills.

If a family member has suffered a TBI, then he or she will often need your help with basic tasks. If you or a family member has suffered a TBI in a work related accident, don’t let the workers’ compensation carrier ignore the problem. It is important that you push the carrier to treat the injury and provide the appropriate disability benefits for it.

Leave a comment

Seeking Workers’ Compensation For A Permanent Disability – It’s Important That All Your Injuries Be Considered

Workers’ compensation insurance carriers often ignore important parts of a workers’ disability. Do you want your disability fully and accurately evaluated? Then, all your limitations and restrictions must be considered.

In my practice, I frequently cross-examine vocational experts at trial. These witnesses are the experts who testify concerning the extent of your disability. Yet, the experts hired by the insurance company will frequently ignore important limitations from an injury. In their testimony, these insurance company experts will usually discuss the impact of typical problems from your injury such as lifting restrictions. At the same time, they will often ignore other issues that have a great impact on your ability to return to work.

A recent article on the impact of hearing loss to employees highlights this issue. As I read this article, I began thinking about a case I tried a few years ago in Huntsville where the worker was injured in an explosion. As a result of his injury, that worker suffered back problems which limited his lifting. However, he also suffered profound hearing loss. That hearing loss disabled him from returning to any of his past work. Similarly, I recently tried a case where a worker fell several feet, injuring both his back and head. Again, the back injury was significant and limited him from some work. However, due to his head trauma, he suffered permanent dizziness. The insurance company would not consider the impact of the head trauma. So, we went to trial and got him the proper amount of disability benefits.

What are some of the frequent problems that can result in significant disability but are often ignored by the workers’ compensation adjusters? They include hearing loss, balance problems, vertigo, gait problems, inability to sit or stand for long periods of time, memory or other cognitive problems from head trauma, and numbness or loss of sensation in body parts such as the leg or arm.

These problems can be significant. Their impact on your ability to return to work can be huge. The workers’ compensation carriers will almost never fully consider them. Because these problems are complex, you need to seek an attorney who understands medical issues, has significant experience with Alabama’s Workers’ Compensation Act, and is willing to go to trial to get what is fair and just for your true disability.

1 Comment

Injured Workers Suffering Chronic Pain Need Specialized Care

A North Carolina court recently ruled that death benefits should be provided to the widow of a worker who died from toxicity due to painkillers prescribed for his work-related injury. Legally, the outcome of this case is no surprise. In Alabama, our court has long held that the natural consequences flowing from a work-related injury are also considered to arise from the employment.  Many other states view the issue similarly.

By itself, the case breaks no new legal ground.  That worker did not abuse his medication. He followed his prescription. His tragic death was due to the original work injury which made these medications necessary. What I cannot determine from reading the article is if the prescribing doctor conducted periodic blood tests to check for levels of the medication in the worker’s blood. Physicians prescribing certain medications routinely perform blood tests to monitor for toxicity so they can change the prescriptions if needed.

My worry with this case is that insurance carriers will use this tragic death as an excuse to argue against chronic pain management for many other severely injured workers. While the carriers may falsely claim it is a safety issue, I believe their true motive is saving money by neglecting needed care. Insurance carriers already act in a number of ways to refuse needed care for workers suffering severe chronic pain. Here are a few of the ways carriers attempt to ignore the true need for chronic pain management in those patients suffering disabling pain:

  1. The Biased Functional Capacity Evaluation (FCE):  Often the insurance carrier will send the worker for an FCE with a company-friendly provider. The carrier will claim the test is needed to determine the worker’s physical restrictions following the injury. This is the purpose of a FCE. The problem is often with the person doing the exam. If biased for the carrier or against patients suffering pain, the tester will interpret the effects of the chronic pain as malingering or exaggerating by the worker. Then, the results will not only be false but there will also be an assertion in a record that the worker is not being honest that the carrier can then use to its advantage.
  2. The Unqualified Physician:  In Alabama (and some other states), the insurance carrier has certain rights to designate a doctor. This creates a great conflict between the need for real medical care and the carrier’s desire to save money. I have seen many occasions where the carrier authorizes a physician who is not qualified to treat these patients or who does not understand the full impact of chronic pain. In these situations, the physician is either unable or unwilling to provide needed care when it includes narcotic pain medications, epidural injections, or other invasive procedures. In some situations, the doctor is biased against the patient and interprets legitimate pain complaints as an issue of malingering, exaggeration, or other bad conduct by the patient.
  3. The “It’s All in Your Head” Conclusion:  This usually goes hand-in-hand with number 2, the unqualified physician.  I have seen more cases than I can count where an unqualified physician or the front line gatekeeper physician for the employer simply claims with very little examination that the worker’s pain is “all in their head” or emotionally based. On many occasions in my cases, a thorough examination by a later physician will reveal significant physical injury that was simply overlooked.
  4. The Use of Questionable and Unaccepted Tests to Document Doubt:  Sometimes, the company’s physician will utilize very questionable tests to generate a false impression that the injured worker is exaggerating their symptoms or is not credible.  Rarely, will the physician outright diagnose the worker as a malingerer.  Instead, the objective is to simply cast doubt on the worker so that he/she will not be believed later at trial.  These efforts are often effective as many attorneys do not review the medical literature on the tests conducted or even question the results. In my years of practice, I routinely see over-and-over the same tests whose reliability has been called into question by others in the medical community.  These include the use of “Waddell’s signs” to claim that the worker is exaggerating their symptoms (despite the actual writing of their creator Dr. Waddell that this was not an appropriate use of his signs); the use of a grip strength test in a FCE as a measure of validity; and, the use of the Fake-Bad scale on the MMPI to claim a person is somehow being less than honest in the extent of a brain injury.

Managing chronic pain is a recognized medical specialty. Physicians can be board-certified as pain specialists with advanced training. Going back to the article from North Carolina, are narcotic pain medications a perfect solution for every case of chronic pain? No. A chronic pain specialist can evaluate a patient and determine the best treatment plan. Treatment can include many things, such as physical therapy, injections, medications, or other invasive means. The problem is that left untreated, chronic pain may save the carriers money but it costs the rest of us far too much.

Leave a comment

Nurse Case Managers – Who Are They Really Helping?

A recent post on the site Workers’ Compensation Watch asks an important question — Should I trust the nurse case manager for my workers’ compensation claim?  That author then responded to his own question with the perfect answer — “be careful.” Through the years, I have seen many claims where the carrier hired a nurse case manager. This post is not intended to criticize all nurse case managers.  I have met case nurses who were genuinely concerned for the injured worker.  With that said, it is important to remember who pays the case nurse.  The insurance carrier is often motivated by its own interest in saving overall medical costs rather than providing the best care to you.

How can the insurance carrier’s nurse save them costs at your expense?  The nurse can direct your care to doctors that might not act in your best interest.  The nurse can meet with doctors and attempt to get you released back to work before you are medically able.  The nurse can attempt to influence the doctors to provide opinions more favorable to the carrier.  In some instances, the nurse can attempt to use her relationship with you to obtain information the carrier can use later to fight your claim. It’s important to remember that the case nurse may not truly be working in your best interest.  Then, be careful.

The use of nurse case managers by insurance carriers is a frequent topic of discussion among attorneys handling workers’ compensation cases.  Almost all attorneys who regularly handle such claims can relate stories of situations where a bad case nurse has had a harmful impact on a severely injured client.  Recently, another workers’ compensation attorney posted three tips for injured workers dealing with case nurses. I will repeat his three tips and then add a fourth of my own:

  1. Always insist upon a private examination by your doctor outside the presence of the nurse case manager.
  2. Never let the nurse case manager switch your treating physician without your consent.
  3. Keep your lawyer informed
  4. Do not provide the nurse with personal information that is not necessary to schedule necessary medical care.  Often, case nurses will pry for information concerning prior injuries, other health conditions, work history, and other personal information.  This information will often be used later by the carrier to fight your claim.
Leave a comment