Need some clarification please

Just got home from my last visit from the neurosurgeon who did a kyphoplasty back in July.  He had sent me for a FCE (functional capacity evul) and wanted to go over it with me.  He tells me I 'didn't do very good' and I asked him what that meant.  He said the paperwork they sent to him says I  "refused all lifting activities.  Pt. states 'I'm afraid to lift anything due to my unsucessful surgery and I don't want to hurt myself'.   This is true and it was the very last test that proposed.  Everything else asked of me I did and it took three hours to complete.  On another page it has a box that asks if consistent effort was given and it is checked YES.  So now I am confused.  I do not know if he was upset at saying the surgery he preformed was 'unsucessful' or what!!!  

 The thing is it is documented in his hospital, surgical report that he was not as sucessful as he had hoped as the INJURY WAS TOO OLD.   The previous neurosurgeon (his partner) had told me back in June that if the surgery was not done SOON , that the bones on the collapsed vertebrae would fuse together and I would be in pain for the rest of my life.  The surgery took place FIVE WEEKS after the initial office visits with them.

I have retained a Workmen's comp attorney as of about five weeks ago and even though I gave them all the doctor notes and surgical notes that I had (I try to get copies of everything) so far nothing has been done.  When I inquired at the office today if they had received anything from my attorney they said NO.  So I called the lawyer's office up right there.  She REFAXED everything necessary to get the ball rolling.  Someone is BS'ing me here.

Anyway, the Dr. filled out his own FCE form as well and wrote I could return to work with restrictions but also that I have a THREE percent permanent impairment rating.  So what does that mean?  This whole thing has dragged on and on since I was injured in Jan. of this year!!  I have done all that was asked of me and I am upset the doctor was making me feel like I just didn't try hard enough to get an A or whatever it was I was suppored to accomplish.  Sorry for the length.  I am just waiting to see if the attorney's think I have a case or not.  What does the 3 percent rating mean?  Thanks.

If you are not happy with your current doctor and you haven't changed doctors you can get a one time change of physician.

The procedure you had has the greatest chance to restore the fracture deformity if done within eight weeks of the bone fracturing.

When I had my FCE test done and the therapist asked me to do something that I knew I couldn't do, I just told him, I can not do it and was not going to injure myself trying. I agree with some of the tests done at the FCE. What I didn't agree on was the push and pull because I used my left hand and that has nothing to do with my injury.

Florida injured workers that have suffered a permanent injury in the workplace are entitled to disability benefits based on the level of their impairment. You have a 3% impairment rating so you will get 6 weeks of Impairment income benefits.

I am sorry I can not help you out a little more but I am sure someone who can help you will be along shortly.

As the last post said, you will receive checks for 6 weeks for your impairment.  I'm not sure what you mean by, do I have a case?  You have an open wc case by virture of the fact you were injured at work and they accepted responsibility.

Are you asking can you settle?  Yes, but the value would be based on anticipated future medical care.

Can you sue for lost income? Not unless you are permanently and totally disabled from all work, and that you would have to take that issue up with your lawyer.

You also have the right to continue to get medical treatment through wc.  By being placed at MMI, the only future wages are the 6 weeks of impairment benefits you are going to get, which is very little, unless you are deemed totall disabled.

Talk to your lawyer.

Thank you both for replying.

When I referred to 'do I have a case' I did mean getting a settlement of some kind from the Insurance Company (WC) aside from the six weeks of small impairment pay.  Who is supposed to decide if I need future medical care?  As far as I know the neuro guy has now dismissed me from his care after giving me the low evulation which I feel was biased from his view of the FCE.  I was told NOT to do things that I felt uncomfortable with and the lifting at the end I did refuse as that is how I got in this shape in the first place.

Do the lawyers ever go after the client's homeowner's insurance which usually carries bodily injury on thier premisis?  I know I have it in case someone is hurt on my property.  Or do they only deal with workmen's Comp?   I am so upset that the reason I contacted this particular attorney as I had gotten a letter from them in the mail and they were the only firm who did try to recruit me and that was weeks and weeks ago.  They sent an investigator to my home and I filled out paperwork, went over my story and all I want to know from someone is if I can get a settlement somewhere for the fact that the surgery did not take place when it should have as my bones are now permanently fused together at the T10, T11 and T12 vertebrae!!  and it is the WC people AND ;the surgeons who made all the appointments for me.   The fact that the lawyer is JUST NOW getting paperwork from the Dr. means to me that someone is STILL dragging their feet on this.  Sorry for the long saga.  I thank you for your help.

You have presented several questions, and some require more clarification to answer.

First, you can generally get a settlement from the insurance carriers by settling your case.  But you do not recover for pain, suffering or the fact that you have 3 vertebrae fused together.  The value of your case is based upon anticipated future medical care which includes future treatments (doctors and hospital), radiology and pharmaceutical.  The value of the settlement is based on what your lawer can wrangle out of the carrier.  In most cases this is just extrapolated based upon what is being spent on your case monthly, once any surgery was completed.

The problem in many cases is settling usually involves resigning from work and agreeing never to apply for employment again.  If my client returns to a job they like and are capable of performing, settlement right away is not wise.  I would rather they had the job.  Also, if the injury is likely to result in additional surgery or if the client is using massive amounts of pain medication, settlement may not be wise.  There are many reasons to think carefully about settlement, as it requires you to give up future medical care at their expense and resign your job.

You are right about some of your concerns about the FCE.  Carriers use them largely to document the worker remains capable of a least sedentary work, so as to avoid the possible permanent, total disability claim.  They have little to do with the impairment rating you were given,  but if they surgically fused you at 3 levels the 3% rating can't be right.

If you were working at someone's home when you hurt your back, you cold go after the homeowners policy if you could prove the homeowners negligence resulted in your injury.

Malpractice claims are available if the doctors standard of care fell below the norm.  If you are asking whether the adjusters delay, which resulted in a worse medical outcome is actionable, it is, but only under extreme circumstances.  To my knowledge, the have been only one or 2 cases where the adjuster was actually sued over the handling of the claim, and in each case the adjuster had acted with malice and criminality.  In the vast majority of cases the ajusters are immune from suit.