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Liberty Mutual and other insurance companies that provide workers' compensation insurance coverage are taking a new approach in their attempt to make injured workers get frustrated and give up: it's called "utilization review." Don't Fall For It!

What they are saying is this: "We will pick the doctor we want to treat you. But if the doctor we pick to treat you wants to do something to treat you that we don't want to pay for, we'll get another doctor to overrule the doctor we told you to treat with."

Here's how their scheme works: let's say you are authorized to treat with Dr. Smith for your work-related injury. Dr. Smith thinks you need an MRI or physical therapy or an epidural injection or whatever it is. The Liberty Mutuals of the world (there are lots of them by various names) will hire a "utilization review" in which another doctor will be asked if Dr. Smith's recommendation is "reasonably necessary." Picture the "reviewing" doctor is out in Las Vegas in his pajamas. It's probably not too far from the truth. The reviewing doctor will review some records, but many times not all the records. The reviewing doctor might try to call Dr. Smith but not necessarily. The reviewing doctor will never see you the injured worker. Then not surprisingly Dr. Pajamas will reach the conclusion that Dr. Smith's recommendation is not reasonably necessary and the treatment will be denied by Liberty Mutual or one of the other usual suspects.

A recent case I heard about involved the recommendation of a board-certified neurosurgeon overruled by a utilization review conducted by a dentist! This is ridiculous!

So what do you do? Do you give up? That's what Liberty Mutual and the others are hoping you'll do. DON'T GIVE THEM THE SATISFACTION! The law is on your side! I handled a case that established the precedent for you. It's called Ex parte Southeast Alabama Medical Center, and it can be viewed here: http://caselaw.findlaw.com/al-court-of-civil-appeals/1180416.html.

The gist of it is this: You can ignore the utilization review. You aren't bound by it! You can have a court order Liberty Mutual or whoever it is to provide you with the treatment that the workers' compensation doctor says you need.

As a lawyer who represents injured people for a living, I see this tactic over and over. It takes a little work and time, but I win these fights for my clients because the law is on your side in this regard.

Just remember: Don't give up! If you need treatment, you can prevail.

Tracy W. Cary
Email: tcary@morriscaryandrews.com
Telephone: 1-800-638-3665

This is off topic of workers' compensation law but I have to share this with you. Last month, my daughter and I were part of a team of 14 from our church (Covenant United Methodist) that participated in a mission trip to Tinyari, Peru. We worked with the first through sixth grade children of the school on four areas: English, crafts, Bible and recreation. We had an incredible trip and were amazed at the beauty of the country and how hard working the people are.

Based on recent decisions from the Alabama Supreme Court and Alabama Court of Civil Appeals, how do you use considerations of an injured worker’s pain to get beyond the severe restrictions of the table of scheduled members?

In order to get beyond the schedule, focus on proving that the employee’s pain within his scheduled member was virtually, or totally physically disabling. Look for evidence that you suffer from abnormal, constant, and severe pain, even when not using the affected member. Most importantly though, recent court decisions sugest that “a trial court must consider all legal evidence bearing on the existence, duration, intensity, and disabling effect of the pain in the scheduled member, including its own observations. It requires competent proof that whatever pain the worker experienced, completely, or almost completely, physically debilitated the worker. So, focus on the existence of pain, the duration of pain, the intensity of the pain and how the pain effects you. My thoughts are that the injured worker's testimony is critical to establish this, but also, have other lay witnesses (spouse, close friend, co-worker) and expert witnesses (medical doctor, therapist, pharmacist, vocational expert with focus on pain) would be helpful in establishing existence; (the pain is there and it is real), duration; (for example, the pain reaches an 8 out of 10 three days per week and I have to take Lortab to help control the pain) intensity; (the pain is a shooting and burning pain that reaches 8 out of 10); and the disabling effect (when the pain reaches its highest levels, I cannot function.

Tracy W. Cary

What do you do if you didn’t file suit within two years of the date of your accident (or two years from the date you were paid compensation)? The Court of Civil Appeals recently decided a case that says that if an injured worker was taken back to work on light duty and not really able to earn full pay for the less than full duty job they were duty, this can extend the statute of limitations. There are three elements to consider: (1) ‘the employer was aware, or should have been aware, that such payments were compensation,’ (2) ‘the payments had the effect of recognition of the [worker’s] claim,’ and (3) ‘the evidence indicates that the employer paid for more than he received.’” Jackson v. Delphi Automotive Systems, _So. 3d., (Ala. Civ. App. 2010). 2010 WL 58266, 2010 Ala. Civ. App. LEXIS 3, January 8, 2010.

If you've read my blog entry regarding the Top Ten list of things that need to be changed about the Alabama Workers' Compensation Act, you've seen the problem with "scheduled injuries." Scheduled injuries are listed in Ala. Code § 25-5-57(a)(3). "The schedule" contains a list of various body parts that can be injured on the job with a corresponding number of weeks compensation a worker can receive for injuries to those body parts. Practically every part of the body that could be injured on the job is found in the schedule with the exception of injuries to the head, neck, shoulders, back, hips and psychological injuries.

To illustrate how limited the schedule is, I'll list few examples:

  • For the loss of a fourth finger, commonly called the little finger, 16 weeks.
  • For the loss of a great toe, 32 weeks.
  • For the loss of an eye, 124 weeks.
  • For the loss of an arm, 222 weeks.

In other words, if you have an accident at work and one of these body parts is chopped off, you'll receive no more than the number of weeks compensation listed in the schedule.

Why is this important?
It's important because activists on the court masquerading as conservatives keep changing the law. A little background is helpful. The Alabama Workers' Compensation Act is extremely limited it the benefits it provides to injured workers. When an injured worker has a permanent injury, the permanent injury can be expressed as an impairment to the specific body part or alternatively to the whole person. The monetary value of expressing permanent injury using either method can be calculated by using a formula found in the law. As opposed to the limited number of weeks set out in the few examples listed above, workers with permanent injuries to the whole body generally receive compensation for 300 weeks instead of 16, 32, 124 or 222, etc. For many years, workers' compensation practitioners would do the math using the scheduled injury and compare it to the compensation due the worker for a whole person injury and the case could be concluded at the higher (but still very limited) amount.
The activist Supreme Court changed all this in 2002 with its decision in Ex parte Drummond Co., 837 So. 2d 831 (Ala. 2002). In the Drummond decision, the Court decided it would place a renewed emphasis on the schedule such that when a worker injured a body part found in the list of body parts listed in the schedule, the worker would be paid the number of weeks compensation found in the schedule, and no more (with very limited exceptions which are discussed below).

Why does this matter?
It matters because the court concluded that if a worker with a limited education who has worked his entire adult life as a mechanic by using his hands should be unfortunate enough to have an accident and lose the ability to ever work again with his hands in a repetitive manner, he will be limited to 400 weeks compensation even though he is for all practical purposes permanently and total disabled. You can read about this flawed decision in Ala. Workmen's Comp. Self-Insurers Guar. Ass'n v. Wilson, 993 So. 2d 451 (Ala. Civ. App. 2006).

Drummond Exceptions
In the Drummond decision, the Court created an exception to allow an injured worker to show that he or she may not be limited to the number of weeks compensation found in the schedule. The Court said that if the injury to the scheduled body part spread to other parts of the body and interfered with their efficiency, OR if the injury resulted in debilitating pain, the schedule was not exclusive. The Court even wrote in Drummond, "We recognize that pain can be totally, or virtually totally, debilitating." I have represented a great many injured workers who suffered debilitating pain as a result of their injury at work.

In what can only be fairly characterized as a moving target, the Court keeps changing the definition to make it harder for injured workers to recover. In a concurring opinion that is so draconian that it's hard to fathom, a current member of the Alabama Court of Civil Appeals wants the Supreme Court to declare that the pain exception does not exist! (In other words, legislate from the bench, change the law, be an activist).

If you think I'm making it up, check this out:
Norandal U.S.A., Inc. v. Graben, 2010 Ala. Civ. App. LEXIS 71 (Ala. Civ. App. Mar. 12, 2010)
Judge Terry Moore wrote the following:

In my opinion, using severe pain as a basis for deviating from the schedule totally undermines the legislative purpose of the schedule. By enacting a schedule, the legislature plainly intended to eliminate litigation regarding the benefits due a worker who sustains an injury to a scheduled member. The legislature envisioned that the benefits for injuries to a knee, for example, would be easily calculable and payable by reference solely to the schedule and without resort to administration by the courts. That purpose is thwarted when a totally subjective variable such as pain enters the calculus. That criteria, being almost impossible to demonstrate by objective proof, renders the schedule totally [*26] inconclusive and demands administration of the claim by the court system to determine if the nature, duration, and intensity of the pain sufficiently justifies a departure from the schedule. In this case alone, for example, the trial court has twice awarded nonscheduled benefits based on the employee's complaints of pain in the knee, only to twice have this court reverse that decision. That entire exercise with its associated costs and delays would have been avoided if the schedule remedy was completely respected and severe debilitating pain was not considered an exception to its exclusivity.

I urge the supreme court to revisit the "pain exception" to the schedule and to declare that it does not exist. Until it does, however, as a member of this court, I will continue to acknowledge that, in the very limited circumstances set out in the main opinion, totally or virtually totally debilitating pain isolated in a scheduled member is sufficient to warrant an award of nonscheduled benefits.

What to do?
I have a few suggestions. First, contact your legislators and make them aware of this unbelievable situation. Second, I recommend that whether you're a Democrat or a Republican voter, don't vote for anyone who concurred with this activist way of legislating from the bench. It's simply not the role of judges to change the law to suit their own biases.

Finally, if you unfortunate enough to have a work-related injury that resulted in debilitating pain, make sure you hire a competent workers' compensation lawyer to help you traverse the maze that exists in our law. Because our courts keep changing the definitions as they go, you'll need to be careful that you don't lose valuable rights.

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