Practice Areas

• Workers' Compensation
• Personal Injury
• Social Security Disability
• Employment Law

Firm News

• When the injured worker returned to work he was immediately fired...
  
• Workers' Compensation: The IC ruled that the employer, who willingly paid the medical claim and workers comp for the employee's foot injury, must also pay for pain management because this injury aggravated the employee's pre-existing fibromyalgia and hypertension and was now considered a chronic condition. Although it is tough to win these claims we can usually do it if we the treating physician will agree that the pre-existing condition is worse now than it was and that this change is due to the worker's comp accident....
  
• Workers' Compensation: The Industrial Commission denied the employee's claim for temporary partial disability compensation. The Commission ruled that the reduction in wages that our client received was because of problems with the company's workload due to the economy. It was determined that he didn't receive less pay because of his injury or from the less-paying job within the company that he had to take because of the injury....
  
• Workers' Compensation: The NC Industrial Commission determined that the employer was required to pay our client's medical bills and also continue workers' compensation payments until our client could find a job with his limited physical capabilities. The employer was unable to find work for him at the company and he was fired, which was unacceptable, although it was explained by the employer as happening because of excessive absences....
  
• Workers' Compensation: The North Carolina Industrial Commission threatened to hold CNA in contempt of court because they refused to authorize the medical tests which would prove that the plaintiff was unable to do his job. This was a classic example of an adjuster getting an opinion from a reliable doctor and then refusing any other evaluation which could help the injured worker....
  
• Workers Compensation: The North Carolina Industrial Commission held that National Benefits Association had wrongfully denied this claim for more than a year...but only when the Industrial Commission finally heard all the evidence -- that the employer admitted that they knew the plaintiff was hurt, that they had sent him to a doctor but didn't follow his direction, and that there was no way our client could do his job with his severely-injured back....
  
• Workers' Compensation: North Carolina Industrial Commission says Liberty Mutual must provide yardcare and housecleaning to an injured brickmason....
  
• Workers' Compensation: North Carolina Industrial Commission rules that a restaurant dishwasher who slipped and fell, and was taken straight to an emergency room has proven that he was injured on the job....
  
• Workers' Compensation: North Carolina Industrial Commission finds that Diebold and Broadspire MUST pay weekly benefits even after they fired the injured worker from her "light duty" job....
  
• Workers' Compensation: North Carolina Industrial Commission rules against The Hartford Insurance Company and holds that a nurse who was still on her employer's property when she was hit by a car is within the course and scope of her employment and entitled to workers' compensation benefits....
  

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Library

Workers' Compensation

• Psssst! Who's that following you?
• NCIC Form 25T: Mileage Reimbursement form
• Form 28T: Notice of Termination of Compensation by Reason of Trial Return to Work
• Form 33R: Response to Request that Claim Be Assigned for Hearing
• 10 Things Your Insurance Adjuster Won't Tell You (download)

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Testimonials

"Mr. Richardson and Ms. York were always available - and they did a terrific job."

"Chip Permar and his team were outstanding!"

"You showed so much concern for me as a person -- there is such a personal touch to everything you do."

"I don't know what I would have done without you!"

"We were nervous at first, but you put us at ease."

"John and Stephanie were patient with me. Great teamwork!"

"Being injured turned into a life-changing event, but it was comforting to know that you understood me and were only a phone call away."

"You guys are on top of your game."

"I researched law firms on the internet, and I could not have asked for a better attorney."

"Whenever I called I got answers."

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The Dreaded Functional Capacities Evaluation

The Dreaded Functional Capacity Evaluation (FCE)

It can be very frustrating when it seems like no one understands the pain you are in. A lot of our clients complain about this to us. Their boss doesn’t seem to get it, the rehabilitation nurse only talks about how soon they can return to work, and the doctor doesn’t act like he’s listening to what they are saying.

The worst reaction to this scenario is to play up your symptoms in an effort to get the doctor’s attention. Unfortunately many physicians are skeptical of workers compensation claimants already. Thus if you appear to be exaggerating in any way the doctor will assume that you are just trying to stay out of work. Although it is completely unfair the doctor will likely put you in the stereotype that the insurance companies have spent millions of dollars creating.

What you probably don’t realize is that much of the doctor’s physical examination of you is designed specifically to see if you are telling him the truth. Every time he asks you to bend, twist, or tell him if something hurts he is expecting a specific response. He’s trained to know what actions will cause which responses.

If there starts to be a separation between your verbal complaints (called subjective complaints) and what he can physically demonstrate (called objective complaints) he will assume that you are not credible. That means he’ll listen to you even less than you accused him of doing initially.

This becomes an issue in physical therapy when you take the Functional Capacities Evaluation (FCE). The FCE is designed to see what you are physically capable of doing. Your doctor will likely order an FCE before he releases you with permanent restrictions.

Given what is at stake with this it is very tempting for many injured workers to not overdo it any. Unfortunately the FCE is a pretty sophisticated test. Most of today’s FCEs use computerized software to pick apart everything you say and do in an effort to sniff out any inconsistencies. For instance, at the outset of the FCE you will be told to give full effort on all parts of the examination. During the course of the three-hour testing your back, which was injured in a fall at work, begins to really kill you. But the physical therapist wants you to keep squeezing handgrips to determine your grip strength. You’re thinking to yourself “What on earth does this have to do with my back?”

The answer is both nothing and everything. Obviously a back injury shouldn’t affect your grip strength. So it has nothing to do with your back injury. On the other hand if you give inconsistent effort on the handgrip test the computers will flag you as having “symptom magnification.” That’s semi-polite medical terminology for calling you an exaggerator. That probably isn’t at all true, but it doesn’t matter what either you or we think. The FCE report will go to the doctor and to the insurance company before you ever see a copy of it. And stamped all across it will be the claim that you are a symptom magnifier.

In our experience doctors react very negatively to this. It is not unusual for them to just assign very limited restrictions on the assumption that nothing you’ve told them was accurate. Thus in an effort to get someone to listen to you you’ve ended up with just the opposite.

So what are you supposed to do? We recommend that you are honest but through in your description of your symptoms and limitations. Never say that you hurt “all over.” Be specific. Tell your therapist specifically where it hurts. If certain activities cause you discomfort, say so. If they don’t, don’t be afraid to say that they don’t.

It is also important that you put forth a full effort. However, being able to lift something once in a therapist’s office is a lot different than doing it a hundred times a day at work. This is especially the case with commission-type jobs where speed and efficiency are a must. Your doctor should take this into consideration. Of course, it is your responsibility to make sure the doctor is fully aware of your job description (and not just the employer’s version but the real version). If you are concerned that the FCE is not an accurate representation of your capacity to do your old job, let the doctor why you feel that way. Quite often the pain and symptoms don’t flare up fully until hours after the exam. We encourage clients to contact the therapists and let them know if you have an increase in symptoms following the FCE so they can document it in your record.

Usually, the FCE marks the end of your medical treatment. Very soon, the doctor will likely release you and assign permanent restrictions. Your restrictions will place you into one of four categories: heavy, medium, light and sedentary. Depending on your restrictions, you may or may not be able to return to your pre-injury employment. Thus, the permanent restrictions you receive will have a huge impact on the outcome of your claim.

At the end of the day, an FCE is something that shouldn’t be feared, but should be respected. The final result should be an accurate representation of your ability to function on the job, everyday and not just in a controlled setting. The best way to achieve this is through honest and thorough communication with your physical therapists and doctors.