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First some background:
I was injured at work last year (broke bones in my ankle after a fall,
requiring surgery with the insertion of plates and screws). I've had
constant pain ever since, along with lymphedema and numbness. My
orthopedic surgeon wants to go back in to clean out the joint and remove
some of the screws to see if this will help.
There is a constant level of pain that never goes away--a dull, ache
that I'm always aware of, and that requires elevating the leg and icing
the ankle to help minimize. But there are also some other, distinct
pains that happen sporadically, including one type that -literally-
brings me to my knees because it is so sharp and so unexpected.
Although we can't definitively say so, there's a good chance that the
problems with the ankle contributed to a second fall (at home) that
resulted in broken bones in my arm (also requiring surgery).
The workers' comp commission (Texas) has notified me of a mandatory
"designated doctor" appointment next month, at which a decision will be
made as to whether I've reached "maximum medical improvement." If they
decide that I have, an impairment rating will be made and benefits will
be paid at the rate of 3 weeks benefits per 1% impairment.
Please keep in mind that I -do- have an attorney who specializes in
workers' comp issues and I have consulted with him; I'm simply looking
for other input. Here are my questions:
Is there such a thing as suing my employer for a settlement other than
the workers' comp impairment benefits? Since the injury has resulted in
ongoing, presumably permanent pain/numbness/swelling -and- has led to my
falling and sustaining other injuries, it seems like a no-brainer TO ME
(a non-lawyer) that this should be possible. Let me rephrase the
question: I KNOW it's possible to sue, but is it likely that I'd win a
case like this? Does the fact that it's a workers' comp case preclude
any other type of settlement?
What happens if the designated doctor thinks I've reached MMI but my
surgeon and I disagree? As I said, we KNOW there's more surgery ahead,
at least one more operation and possibly more if the first one doesn't
help (removing the plate will be a last resort), to say nothing of the
ongoing pain and other problems.
Sorry for the length of this, but I thought the background facts would
be helpful.
--
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When a case goes to worker's comp, it pretty much completely precludes
any private cause of action between you and the employer for the same
case. I believe this includes complications that arise out of the
original injury that put the case into worker's comp. (That's the
tradeoff with worker's comp. The employer takes on no-fault
responsibility for on-the-job injuries; you give up the right to
compensation outside the system.) There can be exceptions, but they are
few and far between and involve unusual situations such as the employer
recklessly disregarded safety rules or acted in bad faith to frustrate
a worker's comp claim.
There's a dispute resolution process available to you when doctors
disagree over whether you've reached maximum improvement or what your
residual disability is; this is a common sort of disagreement. I
believe in Texas, you start by trying to resolve the dispute informally
with the worker's comp carrier, then informally through the TWCC. If
nothing comes of this, you can get either arbitration (which is binding
and final) or a Contested Case Hearing through the TWCC. If you're
dissatisfied with the outcome of a CCH, you can appeal.
--
Not a lawyer,
Chris Green
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(i will tell you my story and then give you my background)
after being on rsdi social security disabiity for many years due to a
w/c injury...my son was a junior and I needed money to move and save for
his growing needs...I went to work for a pizza place delivering
pizza...on a delivery a woman ran a stop sign and I hit her totaling her
van and putting down a street sign ..I was tossed about...but was
worried about my deliveries...went back to the store and told the mngr.
i thought I needed to go see a DR.
she tried to get me to deliver some more pizzas but I said no I need to
go....I went in and thank god they took xrays...didnt tellme then but
there was a slight protruding disc in my neck
I went to PT and hit and miss saw Dr if I was i pain...headaches began
soon after non like I had ever known! every 3 to 4 months I needed to
get a shot then they got to be 2 times a month then every week to
everyday the accident was in oct 1998 and I was sent to PT then a pain
ctr...then to a agreed medical examiner...what a joke....he stated I
could return to work FT and gave me a 2 % rating...he even went on to
state he did not feel the car accident was a factor with my
headaches...and I was P&S...I then went back to see my surgeon with this
report....he tore it up!!!...Fact is the xray right after the accident
showed the injury...and 6 months prior to accident I had some carpal
tunnel pain and they just happened to xray my neck just to rule out neck
involvement....so I was covered!
my headaches got so bed I needed to do something I was 2 years in
bed....in the dark
in 1993 I finaly agreed to have the disc C-6-7 fused and to date I am
doing better...headache if I over due...but under control...That IME's
report was tossed out...but I did not get much at all monetarily but
they will be responsible for any neck pain bills!
My atty sucked and could have done better for me!!
You know yor body better that anyone...fight for your rights..and if you
feel the DR is wrong read on..this will open your eyes!!!
i have had 2 work comp claims...#1 bartending in CA...one gal out on a
WC neck pain, then the main bartender got very ill and was hospitalized
for over a month...that left me, and the gal whom did the a.m.cleaning
and worked the bar from 6 to 8 a.m. I was the only one that could pick
up the slack...I began working from 8 a.m. to 2:30 a.m...7 days a
week...after 2 weeks...I busted 6 glass coffee cups in my hands when the
owner came storming out of his office slamming the door he startled me
and he caused this accident...he asked me how many cups did I break?...I
was bleeding badly but was forced to finish my shift at which time I
went to the ER and had both middle fingers stitched up.
I was not given any time off..and I needed my job for my son...the hours
were wearing me down bad...after 6 weeks of these crazy hours I was in
the walk in puttig the beer cases away...i had 5 cases stacked as usual
and I pulled the dolly back as I held the top case...the middle cases
fell forward I jmped to catch them and snap I went down to my knees...my
back hurt so bad I could not move...
I went by ambulance to the hospital and was told herniated a
disc..L5-S1 and I needed to stay in bed and keep off my feet...over the
next 2 month the pain got so bad I was not able to walk...my employer
fired me, I told him he needed to pay me for my overtime he
refused...i ended up getting not only time and 1/2 but double time and
triple time, andlater recieved 10,000 due to him firing me.
I had emergency surgery...the nerosurgeon did a disc-o-gram and missed
and imbedded the needle into my spine...no anesthea...he told me I
needed surgery asap....he wanted to recover this needle... he did a
lamincectomy fussion with a donor bone...about 6 months after surgery he
ordered a MRI...this is when he told me he must have broke off the
needle during the disc-o-gram....the entire fusion area and then some
was all blacked out.
He claimed my surgery was a success but I knew better...I was in pain so
bad...I( got an atty and we got a new surgeon whom seemed to agree that
the fussion was solid...he refferred me to a shrink and finally after 2
years from my surgery he referredme to his partner...they did a tri
spiral tomography and what do you know...it was a non-union...bone
against bone...never a word of apology for allowing me to suffer for 2
years making me think It was in my head!!
the new DR did another fusion bt thought it best to use my own
bone...they were to take about 6 inches of my left fibia...I woke to
find my right leg bandaged and omg the pain...I had broken my right
tibia as a child and it was a bad break...this had left me with a
lifetime limp ache and disability...2 more years pass and again they
tell me nothing was wrong..they sent me to Scripps pain clinic..I got
better but I still needed a huge amount of narcotics..they had me so
doped up..I just could not go on...all this time between surgeries W/C
was forcing me to begin my retraining but would not approve any choice
I chose. they so many times put me on P&S only to put me back on
TTD...I was sent to a new specialist and he found the second attempt was
a failure also but there was hope...a new procedure called pedicle
screws and plates...not telling me it was still in the trial
stages...and these pedicle screws were not approved by the FDA to be
used in the small bones...only for the long bones..arms...legs.
I hopped on the class action and lost 4 grand...but my atty and firm
paid it for me!
As with the previous 2 this surgery also failed
fact is 3 days afte the screws dislodged causing me pan so bad I wanted
to die...he forced me to have these things in for a year...I saw a DR in
MN and he called my DR in CA and told him these had to come out right
away!...I got home from vacation and the next day he removed the device
and the fusion was again a non union ...!
I have worked a bit here and there but nothing more than 4 months...I
was rated 36% on my physical and 56% on the mental....between these
quack Drs and workmans comp...I had been thru a life time of torture and
stress.
Did not get much money either...I was 23 when this accident occurred. I
applied for social security disability and was approved at warp
speed...did not even have to see any DRS!
To this day I get worse every year but know I have to keep moving and
not allow my pain to get me down in bed or in spirit!...So from 1985 to
the present it has been a long haul...all the money in the world could
compensate me for what I have endurred!
good luck!!
Roo
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