I was proud to help a career welder whose decades of loyalty on the job got rewarded with the workers’ compensation insurance company denying his claim. After a long, drawn-out fight, we secured a successful settlement for David, allowing him to pursue other career options.
David was forced into an awkward position to get a heavy part off a shelf. As he reached back, he put his foot on a pallet to stretch higher, jumped to grab the part, and landed with his feet in an awkward position, twisting his back and hip, causing immediate sharp pain.
David Goes It Alone at First, and It Doesn’t Go So Well
Like many seriously injured employees I represent, David tried to handle his claim on his own at first, for what he felt were the “right” reasons: he didn't want to rock the boat or look like a “troublemaker” by hiring a lawyer. So, he played the part of a loyal employee and tried to deal with the insurance company himself. Like so many of my clients before him, he quickly found out the insurance company doesn't care if you're a loyal employee. All it cares about is saving money, which they do by denying claims and cheating legitimately hurt employees.
Unfortunately, overcoming the insurance company’s denial was made even more challenging by three factors: (1) how the injury developed, (2) David's initial treatment outside workers’ compensation, and (3) the nature of the diagnosis.
How the Injury Developed
At first, David swore the injury was to his lower back. That's the only place it hurt at first. Within a few days, the pain migrated primarily to his right hip. When he hired us, David reported the company doctor told him this was bone degeneration in his hip. That doctor then gave him legal advice, talking David out of filing a workers’ comp claim and instructing him to go to his regular doctor. Note this legal “advice” from a non-lawyer only helped the insurance company that paid his bill.
David’s Initial Treatment Outside of the Workers’ Compensation System
A trusting soul, David took the doctor's legal “advice.” Instead of pursuing workers’ comp further, David started treatment with his regular doctor. PRO TIP: This can kill your case because if you try to go back into workers’ compensation, the insurance company can argue you got unauthorized treatment they shouldn't have to pay for, and that treatment actually made you worse, which can get your case dismissed. David's regular doctor did complicate things, considering David’s true injury was to his hip. David's doctor initially diagnosed a back injury, sciatica. Even worse, he created a potential argument the insurance companies love: this was a preexisting injury. The doctor noted David had prior hip pain, on and off for years, and was even treated by a chiropractor for it. He also took a hip X-ray, which looked essentially normal.
But it wasn't all bad. David's regular doctor bailed him out. When hip symptoms persisted, the doctor referred David to an orthopedist. The orthopedist saw the true cause of David's pain immediately. He ordered an MRI on David’s hip. But he suspected merely a thigh strain.
David’s Diagnosis Complicates His Case
When the MRI revealed avascular necrosis, that diagnosis did nothing to advance our claim that David suffered a traumatic injury. Avascular necrosis is a degenerative process where the bone dies.
It looked like David's case was dead in the water. But I wasn't about to give up. I set up a meeting with the orthopedist to explore the possibility of whether the injury fell under workers’ comp. Much to my surprise and joy, he made the medical aspect of David's case airtight by doing the following:
- He educated me that David's work injury worsened his avascular necrosis. This was critical. Contrary to what insurance companies say, preexisting injuries don't defeat all comp claims. If a work injury worsens a prior injury, the worsening is covered by workers’ compensation.
- He explained that the initial back pain migrating to the hip evidenced a hip injury instead of a low back injury. Basically, he informed me the two overlap.
- He also refuted what I expected to be another key defense argument, that the hip X-ray looked fine. He explained that he expected a normal X-ray.
After that meeting, I developed a medical questionnaire, which the orthopedist answered. That's a document I create for a doctor to answer simple yes or no questions about the major issues in a workers’ compensation case, like whether a work accident caused an injury that should be covered by workers comp.
The Insurance Company Fights Back With a Vengeance but Surrenders to the Medical Evidence
The insurance company fought this case hard, retaining opposing counsel immediately after we notified it of our involvement. They stood by their denial until the day before our scheduled hearing to decide if comp should pay for David's injury. No doubt, the orthopedist’s questionnaire helped gain the insurance company's agreement to pay. The insurance company also agreed to pay David much needed weekly check benefits since he couldn't work. I got them to pay for all the past due weeks he was owed during the denial. It also repaid the short-term disability insurance he'd been using.
Unexpected Medical Payoffs of the Comp Case
As David's treatment progressed, he got no better. Ultimately, he required major surgery, a total hip replacement by a hip replacement specialist.
Once he began to recover from his hip replacement, he noticed a nagging knee problem. The hip specialist suspected he'd hurt his knee in the same incident where he hurt his hip. He recommended evaluation by a knee specialist.
I expected the insurance company to cry, “Too little, too late.” But we convinced them, without a fight this time, that the knee pain surfaced only after the massive hip pain went away. The insurance company approved the referral. The knee specialist determined David fractured his knee in the work incident. Luckily, David required little treatment to get this fixed.
More Help for David’s Case From the Doctor, Even Though It Didn’t Look Like It at First
As the case began to wind down, opposing counsel scheduled a conference call with the hip specialist to set two critical factors in the value of David's settlement: (1) permanent work restrictions and (2) the impairment rating for the hip.
Opposing counsel pointed out he got an unsigned form from the specialist giving a rating of 31%, with no work restrictions. Initially, the doctor indicated he'd sign it, then rethought it after I described David's continued debilitation despite the hip replacement.
The specialist decided to set restrictions, and he needed a functional capacity evaluation, or FCE. The FCE proved critical in establishing the restrictions ending David's career as a welder, justifying a higher settlement. Based on the FCE, the specialist gave a slightly lower rating of 25% but provided the critical restrictions.
How David's Case Ended With Unexpected Success
Mediation was scheduled shortly after we sent the opposing counsel a detailed settlement offer called a demand letter. We used the letter as our mediation package to the mediator.
We settled at mediation for $176,500.00, achieving David’s goal of financial stability for his family while he finds another career.
Lessons Learned
There's lots to learn from this case for both an employee who gets injured at work in South Carolina and for me as a workers’ compensation attorney helping folks around Spartanburg:
- If you get hurt at work, get some advice from an experienced workers’ compensation attorney. I'll meet with you for free. The worst thing you can do is try to go it alone, and then the case gets blown up in your face, with the insurance company denying benefits and you not knowing where to turn. In the meantime, you're out of work with no hope of any money to replace lost income, and you can't get in to a doctor to help you heal so you can go back to work. Worst of all, some people wait until it's way too late and there's nothing even a good lawyer can do. I'm not trolling for cases here. Not every workers’ compensation case needs a lawyer. If you don't need a lawyer, I'll tell you and give you free pointers to help you along the way.
- It's an especially good idea to seek legal advice if you're seriously hurt. You don't know how badly you're hurt and sometimes it's way worse than you think. Neither David nor I would have ever dreamed he’d need a hip replacement.
- A preexisting diagnosis might still be caused by an injury covered by workers comp. David had a degenerative condition that workers’ compensation was not responsible for. But because a work incident made that worse, workers’ comp was responsible for all the treatment, missed work, and permanent damage coming from it.
Both David and I are mighty thankful he found us before it was too late.
