Workers' compensation is a form of insurance, which provides wage replacement and medical benefits for employees who get injured while employed at their company.The realities are that insurance claims are often denied by employers for a myriad of reasons.
With his law firm in Georgia, Benjamin Y. Gerber (BG) and his colleagues have invested the time, energy and expertise to help his struggling clients from all walks of life.
In an EXCLUSIVE INTERVIEW with Lawyer Herald (LH), Mr. Gerber discloses the legal and ethical elements of what it takes to be a workers' compensation attorney. The various challenges that he and his colleagues face each and every day while working at the Law Offices of Benjamin Y. Gerber serve an overall good; helping those less fortunate to overcome today's harshest social and economic inequities.
Lawyer Herald: Describe in layman's terms your practice and what you're working on each day? And to simplify things even further, how would you define workers' compensation? If your client gets injured at work, what are the series of steps your law firm perform to best serve clients?
Ben Gerber: On an everyday basis I assist clients with their workers' compensation claims. In Georgia, when an individual is injured on the job, they are entitled to two main benefits: 1) Medical treatment for that injured body part to be paid for by the Workers' Compensation Insurance carrier and 2) Indemnity benefits if they are taken out of work for more than 7 consecutive days or their employer cannot offer them work within their restrictions.
As simple as that sounds, there are many nuances to my everyday job. For example, getting clients to the appropriate doctor is an ongoing struggle. Many times they are sent to Urgent/Immediate Care clinics for treatment. The doctors there are not equipped to deal with the nature of their injury yet return them back to work before they are ready. It is my job to find appropriate specialists. There are legal requirements for this and it is my job to ensure that the insurance companies are playing by the rules.
We also work to ensure that they are receiving the appropriate amount of indemnity benefits if they are out of work, and many times litigate over their issue to entitlement of said benefits. Litigation involves discovery including interrogatories, depositions of clients, doctors and representatives of the employer. Many times the cases are argued in front of an administrative law judge.
LH: You have written on your firm's web site that Georgia has a unique set of legal laws, which differ from other states. Please indicate how the legal elements in Georgia work. How do the particulars of Georgia's laws affect your line of work?
BG: Workers' Compensation in Georgia is entirely funded by the system. No tax payer money goes to fund the salary of the employees of the administration. I am not sure if this is unique to Georgia, but it is an interesting aspect. Georgia rightfully does not suspend benefits when an individual reaches maximum medical improvement like other states do. If an injured worker plateaus in their recovery but is still not able to work, we do not suspend their benefits. Furthermore, attorney's fees are capped at 25% of the settlement.
Georgia is also an at will employment state which means that an employer can fire an employee at any time for any reason. This makes proving that the injured worker was fired because of their on the job very difficult to prove sometimes.
LH: How do you and your colleagues "prepare an effective and compelling case for a claim," as you elucidate on your web site? Give a scenario of a 'workplace accident,' and what are the various steps your law firm does to collect documentation, such as witness statements, photos, medical reports or otherwise?
BG: Excellent question. We treat every case as if it is going to trial and prepare each case with the utmost diligence. A recent example: An individual was injured at work. She was told to go to a certain doctor who told her she was fine. She then asked for a second opinion and was instructed to go to another doctor. She was then sent a check that said "cashing of this check extinguishes any and all workers' compensation claims you may have." She then hired us.
The law in Georgia states that an employee is entitled to pick a doctor off of a selected panel that has to be posted at the job site if they are injured on the job.
Furthermore, they are entitled to a one time change in doctors to another doctor on the panel. In this instance, we served discovery on the employer through their attorney and discovered that they did not have a proper panel. This entitled our client to choose another doctor, furthermore she cannot be told to go and treat with a doctor, it is her choice. We deposed a representative of the employer who also admitted that they sent her to 'their doctors', also a violation.
Finally, you cannot settle your workers' compensation case without approval of the State Board of Workers' Compensation. We sent request for Production of documents to obtain copies of this and also deposed employees and an adjuster.
LH: What are the various obstacles you face with insurance companies? What sort of personal duress - emotional, legal or otherwise- do you undergo, all the while mindful of the goal to create a fair settlement?
BG: No real duress. You cannot negotiate from a position of power if you are in duress. The issue in many cases is the clients desire for immediate money and their willingness to accept any offer.
Many times they have not received income for a prolonged period of time while the issue of their ability to work is being litigated. Just because they are not getting paid, does not mean that bills stop coming in. Sometimes they just need quick cash to solve the immediacy of an eviction and that may not be in congruence with their long term needs, both financially or medically.
LH: What sort of 'politics' or legal struggles do you contend with government? Is your commitment to helping clients ever compromised by the strains of the realities, and perhaps fickleness of government and its existing laws?
BG: There is always the threat of massive overhaul to the system which would hurt the injured worker and benefit the insurance companies. Insurance companies do not make money by paying out claims. They make money by taking in premiums and holding on to them. The laws could change making it harder for a client to obtain benefits and/or medical treatment or limiting their access to same.
LH: How do you deal with the potential instances of workers' compensation fraud? How rampant are such faux-cases, and who are often the main culprits?
BG: What type of fraud are you referring to? Many employers do not carry workers' compensation insurance and are required to by law. Their failure to do so harms workers who are injured while working for them because it is very difficult if not impossible for them to recover the benefits they are entitled to because the employer tends not to have the money to pay for it. They are fined by the State Board for this but that is really it.
People who claim to be injured but are not are generally discovered very quickly. There is no pain and suffering in workers compensation in Georgia so the injury has to be determined by medical evidence which is almost impossible to fake.
LH: What kinds of experiences have you had as an attorney, which prepared you to open up your own practice?
BG: I did Insurance defense work for 3 plus years and worked for a personal injury attorney for 4 years so I saw all aspects of the practice.
LH: What kinds of ethics do you impart to your kids about your line of work? If you saw it through their eyes, what sorts of things would make them most proud about working as a lawyer?
BG:Tikun Olam; to repair the world. It is important to help those who are less fortunate. It is my job to assist those who are in need. They do not know the system and feel lost.
Many times my client has used his or her body as their "tool" their whole life. For example they work in construction and have always done masonry work. They have injured their back and they cannot perform that work anymore. In essence they have broken their "tool" and are very scared. It is my job to help them get the medical treatment they need and help them provide for their family. This lesson of assisting those who need it is very important.
Many times the injured worker feels like their world is crumbling and its my job to help them put it back together.
LH: When you were in law school, was it a desire 'to do good & to help others' your motivating factor? Or, were you thinking both pragmatically and perhaps idealistically? And if so, how do you coalesce or even reconcile the two?
BG: I went to law school to help people and "do good;" I think I am working very day to do that now. I have been fortunate enough to be able to keep true to that value.
LH: What's the best piece of advice you can give to an idealistic young lawyer trying to make it big while preserving his or her moral compass?
BG: Know what your ultimate goal is and write it down. You may take some detours on what you think would be a straight path, but if you always come back to that goal, you can achieve it.
