Throughout the life of an accepted Vermont workers’ compensation claim, the insurance carrier will be looking for ways to cease paying workers’ comp benefits to you, the injured employee. Sometimes, the insurer simply wants to get you to maximum medical improvement and back to work as quickly as possible, so it can stop paying you TTD benefits and, eventually, medical benefits. The longer your workers’ compensation claim drags on, however, or the more suspicious the circumstances of your injury are, the more likely the insurance carrier is to look for other ways to get out of its payment responsibilities. As a workers’ comp claimant, it is imperative that you avoid giving the insurer ammunition which can hurt your claim. Here are a few ways you can ensure they have less to work with:
Surveillance. Many insurers are distrustful of injured employees, and become more so the longer the employee stays out of work. Especially when your injury seems relatively “minor” to someone who isn’t physically experiencing it (such as a soft tissue injury), insurers will want to find out if you’re as injured as you (and your doctors) say you are. Because the insurance carrier and its attorneys probably don’t live in the same town as you, they do this by hiring private investigators to conduct surveillance of your activities. These investigators will plant themselves in a vehicle down the street from your house, or sometimes, in the woods behind it. They videotape any activities you engage in out in your yard — like gardening, shoveling snow, or playing with your kids — and they will follow you through town if you go to do errands. They watch to see if you lift things that are heavier than you’re supposed to (e.g. a propane tank) and they’ll follow you around the grocery store to see if you can walk or stand for longer than you’ve told your doctors. Thus, if you have filed a workers’ compensation claim, make sure that when you are outside the confines of your own home, you are not engaging in any activities which you’ve told your doctor (or an IME doctor) you can’t do, or that your doctors have told you not to do. If you claim you can only stand for 15 minutes, don’t go for a 3 mile walk. If you’ve been told not to lift anything greater than 15 pounds, don’t bend down and pick up your 5-year-old daughter. Chances are slim that there will be surveillance watching what you do, but it’s best to avoid those activities if you’re not supposed to do them — for your own health, and for the health of your Vermont workers’ compensation claim.
Social Media. Just as a private investigator might be hired to conduct surveillance of you, the insurance carrier or its attorney may also be checking your social media profiles to see if you’ve posted anything inconsistent with your workers’ compensation claim. If you are on Facebook, Instagram, or Twitter, for example, it is best to make sure your profile is set to “private.” More importantly, try not to post any updates or photographs of you doing things that may not be consistent with your injuries. It is amazing how much information anyone can find about you on the Internet. The insurance carriers will be looking for reasons to deny or discontinue your benefits, so be careful what you put out there for the public to see.
Failing to Disclose Prior Injuries/Accidents. As I discussed in a previous post about preexisting conditions, the fact that you’ve had a similar injury in the past does not necessarily mean your current workers’ compensation claim won’t be compensable. What can and will hurt your claim, however, is if you misrepresent or flatly deny a prior injury or accident to either your own medical providers or an IME physician. Rest assured, if you have made a prior workers’ compensation or liability (e.g. motor vehicle accident) claim to an insurance company, the insurer handling your workers’ compensation claim has ways to find out. If a doctor asks you about prior injuries or accidents and you deny it, when in fact you did have such a problem, the insurer will use that denial to challenge your credibility before the Vermont Department of Labor.
Giving Less than Full Effort or Exaggerating Symptoms. There comes a time in some workers’ compensation claims when your medical providers or the insurance carrier will want to conduct some testing to determine your physical work capacity, or to see if you’re “faking” your injury. The first type of testing, called a Functional Capacity Evaluation (“FCE”), examines your ability to perform various tasks required under a particular job description. For example, if the job which injured you required a lot of heavy lifting, the FCE might test your current ability to lift. The FCE, when conducted properly, will give your doctors and the insurance carrier an objective measurement of what type of work you can tolerate when treatment for your injury has essentially concluded. Importantly, however, the FCE not only tests for your work capacity, however, but also your effort; the person conducting the FCE is also trained to notice if you’re not giving full effort. If you do not, that lack of effort will be discussed in the FCE report, and the insurance carrier will argue you were exaggerating your symptoms or lying. The better effort you give at the FCE, the more reliable the results will be, and the less ammo the insurer will have to deny your claim.
Similarly, there may come a time when the insurance carrier or your own medical providers want to conduct some psychological testing to find out if there is a mental component to your claim. Like the FCE, the tests administered at a psychological examination are fine-tuned to disclose a lack of effort or honesty on your part. If you attempt to make yourself seem more injured, the test will not conclude you are more injured — it will simply conclude you were not telling the truth when you took the test. Thus, it is important to give full effort, and honest answers, when attending an FCE or psychological evaluation so that the insurance carrier can’t claim you’re not being truthful about your injury.
Noncompliance with Treatment. Another way that the insurance carrier will try to avoid paying your claim is if you fail to attend a properly scheduled IME, or if your doctors recommend certain treatment for you and you simply ignore their recommendations. Most employees who are injured at work simply want to get better so they can return to work. Normally, if your doctor recommends you treat with physical therapy, you will follow his or her instructions. And you should. As with a claimant who gives less than full effort, the insurance carriers (and the Department of Labor) want to see that you are following your doctors’ orders and that you’re motivated to recover from your injury. Failing to comply with your doctors’ recommendations for treatment, however, is one basis an insurer will rely upon to terminate your workers’ compensation benefits. Indeed, failing to treat can be viewed by some as “milking” your injury, rather than trying to return to work. As such, if your doctor recommends physical therapy, or a home exercise program, it is best to attend those appointments so that the insurer can’t use that against you to deny you benefits.