I tried a case today that illustrates both the interrelationship between workers’ compensation and disability, and how bad workers’ compensation advice can mess up an SSDI case.

My client is a 43 year old man with a strong work history and a solid medical case for disability.  He had undergone a lumbar fusion back in the mid-1990’s and in 2001, he reinjured his lumbar spine, resulting in a second fusion at two disc levels, performed in 2003.

Since the injury happened on the job, my client’s employer picked up the claim and he has been receiving weekly workers’ compensation benefits ever since.

He applied for SSDI in 2003 (alleging an onset of August, 2001) and his hearing was held today (August, 2006).

What’s wrong with this picture?

First and foremost, it appears to me that his workers’ comp claim has grown stale.  Back in late 2003, his treating doctor concluded that he had reached MMI (maximum medical improvement).  The insurance carrier sent him to its preferred facility for a functional capacity rating and concluded that he could not return to his past work, but could return to work at something less than full "light" work (light work includes jobs that require standing and walking up to 6 out of 8 hours in a day, frequent lifting of 10 lbs and occasional lifting of 15 lbs.).

My client’s authorized treating doctor agreed with the FCE result and issued a disability rating in excess of 30%.

Normally, at this juncture, an aggressive workers’ comp claimant’s lawyer will inquire of the treating doctor about future medical costs as well as for an opinion about the disability rating, then try to settle the case.  My wife, Jodi Ginsberg, who represents claimants in Georgia workers’ compensation cases, would no doubt have pursued a much more aggressive approach in getting this case settled.

In fairness to my client’s workers’ comp lawyer, I do not know if my client has been unreasonable in his settlement expectations or perhaps uncooperative in following his lawyer’s advice about on-going medical care.

Here, however, it appears that no one looked into the future medical cost issue and only a half-hearted settlement demand was made.  The insurer made a lowball offer, which the claimant rejected, and he continued to receive workers’ comp. benefits.

Two years have passed since the claimant received his disability rating and no effort has been made to get him to long term pain management or to use the leverage of escalating medical costs to convince the workers’ comp carrier to increase its settlement offer.  If anything, the value of the case has decreased because my client has only seen his doctor once a year in 2005 and 2006 – which essentially tells the workers’ comp carrier that there will not be any substantial future medical costs.

On the SSDI side, the last significant medical information we have is a conservative workers’ comp functional capacity evaluation that suggests that the claimant can do some type of work.  There has been no pain management involvement and my client has done nothing proactive to either seek additional surgery, physical therapy, epidurals or medical pain management.

In chronic pain cases, judges expect SSDI claimants to make an on-going effort to get better – either through surgery, medication, physical therapy, epidurals or even psychological therapy.   We have none of that here, and I am concerned that the judge will conclude that there is not enough medical evidence to support my client’s claim for disability benefits.

[tags] SSDI and workers’ compensation, conservative medical care, pain management, epidurals, FCE [/tags]