The Work Injury Report - Volume V
NAVIGATING YOUR WAY THROUGH THE SYSTEM CAN CAUSE A BIG HEADACHE
Suffering an injury may be easy, but navigating your way through the system can be your biggest headache. Yes it is true that an employee who sustains an injury at work is entitled to worker’s compensation benefits. However, often times an injured worker will encounter obstacles in obtaining the benefits he or she is entitled to under California law.
One of the primary benefits in the workers’ compensation labyrinth is medical treatment to cure or relieve the effects of the work-related injury. Unfortunately, obtaining the appropriate medical care is often difficult. Your employer, or their workers’ compensation insurance carrier, will typically send you to their selected physician, who often sees it as his or her job to limit your medical care to save the insurance company money. The employer’s doctors often do not have your best interests at heart, since they may be under contract with a Medical Provider Network (MPN) selected by the employer or the insurance carrier.
An injured worker does have the right to select a physician of his or her choice. However, if the employer has an MPN in place, which most employers/insurance companies now have, and they have followed all of the legal rules, you must select a doctor from the employer’s MPN. These doctors are chosen by the employer/insurance company to be part of their network because the employer/insurance company typically believes that the doctors will follow protocol that results in limitations in care provided to the injured worker. Once a doctor is selected by the injured worker, the next obstacle can be obtaining authorization for the treatment modalities or medications which the doctor has recommended. In many cases the treatment recommendations are delayed or denied through the employer/insurance company review process called Utilization Review (UR). Once UR occurs, there are procedures which the injured worker must follow to obtain the requested treatment. If Utilization Review is proper and follows legal guidelines, any decision is sent for an appeal through the Independent Medical Review process (IMR.) Absent any technical deficiencies or a change in the injured worker’s physical condition, the IMR decision is usually the last word.
What happens if you are unable to immediately return to your job because of your work injury? Under these circumstances, you will be entitled to temporary disability benefits. Unfortunately, under the current legislation, temporary disability benefits are limited to 104 weeks. If you are able to return to your job, we encourage you to do so, even if it is in a modified positions. By returning to work, you will preserve your allowable temporary disability benefits in the event your condition ultimately requires you to be off work for an extended period of time (e.g., if you require surgical intervention for your injury.) If you are off work for a longer period of time, given the 104 week temporary disability cap, it is that much more important that treatment is provided on a timely basis.
In addition to medical care and temporary disability benefits, an injured worker is entitled to permanent disability. Permanent disability is established by the treating physician or a medical evaluator. Permanent disability is based on a complicated scheme of rating impairments provided by the doctor’s assessment of the injury and how the injury impacts your activities of daily living (ADLs). Unfortunately, doctors often do not provide the injury worker with a level of permanent disability that accurately reflects the extent of the injured worker’s true disability. This occurs because the doctor either does not understand the technical workers’ compensation system well enough to provide a thorough report, because the doctor is beholder to the employer/insurance company who referred the injured worker to him or her, or because the doctor does not focus on the extent and severity of disability. It is the job of the attorney representing the injured worker to ensure the doctor’s assessment of permanent disability is, in fact, truly representative of the consequences of the injury, or to bring to light the inadequacies of that doctor’s opinions before the workers’ compensation judge.
The rating and the correlative amount of monetary benefit the injured worker received is impacted by apportionment. The current legislation requires a doctor to provide an apportionment analysis in the final medical report. Apportionment may be result in a reduction of your permanent disability due to factors the doctor believes were not caused by injury at work.
For example, a doctor may apportion to a prior injury, a pre-existing condition or more controversial. Factors such as the aging process or predisposition to conditions based on race or gender. Such latter factors of “apportionment,” we would submit, are questionable from a legal and medical perspective.
After reading this your headache might have gotten worse. The workers’ compensation system has become a complicated obstacle-ridden maze. Therefore it is more important than ever that you have attorneys who are dedicated to understanding the ways to overcome the obstacles and advocate on your behalf. The Law Firm of Rowen, Gurvey & Win have encountered thee obstacles over and over again, and are committed to relieving you of the headache and securing the benefits you justly deserve.
________________________________________________________________________________________________________________________________________________________________________
ROWEN, GURVEY & WIN OVERCOMES PROBLEMS TO GET RESULTS
A 47 year-old butcher, who initially was not represented by an attorney, was directed to a Panel Qualified Medical Evaluator (PQME) by his employer’s insurance company. The PQME selected by the insurance company called the applicant a “liar and fraud.” The insurance carrier denied all benefits. The Law Firm of Rowen, Gurvey & Win attempted to set the deposition of the PQME to question him about his opinions, providing the advance payment for the doctor are required by regulation. The PQME returned the advance deposit to our office and demanded an exorbitant witness fee. The Law Firm of Rowen, Gurvey & Win reported this conduct to the Workers’ Compensation Appeals Board and was successful in having this doctor removed from the case and his report stricken from the records. Ultimately, the insurance carrier provided all reasonable and necessary benefits, the case settled at 47 percent partial permanent disability and the injured worker was successful in transitioning form heavy labor to a much lighter job that he enjoys to this day.
In another case, a 53 year-old accounting manager suffered injury to her head, shoulders, arms and hands, which resulted in a diagnosis of fibromyalgia and a secondary psychiatric injury. She was on temporary disability for an extended period of time (temporary disability benefits are not capped at 104 weeks within a five year period). In the course of her case, an Agreed Medical Examiner indicated that she had become permanent and stationary several years earlier, and, therefore not entitled to temporary disability to the tune of the $150,000 to be taken against the final settlement. Mr. Gurvey deposed the doctor and by meticulously going through the treatment record was able to convince the Agreed Medical Examiner that his decision to “back-date” his permanent and stationary finding was made in error. The case went on to settle at 100 percent disability without credit for the alleged overpayment of temporary disability.
A 48 year-old hairdresser suffered injury to her neck, both upper extremities and shoulder. The employer’s insurance carrier denied injury and the injured worker was not provided with any benefits. The injured worker was forced to move in with family in Oregon. Prior to her moving, she retained the Law Firm of Rowen, Gurvey & Win. Knowing that the insurance company had denied this claim, the Firm moved quickly to obtain compelling medical evidence from the treating doctor and secured by opinion of an Agreed Medical Evaluator who both found the connection between serious debilitating medical conditions and the work that she had done as a hairdresser. The insurance company was forced to pay a substantial amount of retroactive benefits as well as significant permanent disability compensation for life. The Applicant in this case was able to re-establish her life here in Southern California.
A 60 year-old workers compensation claims adjuster aggravated a pre-existing chronic pain syndrome due to her work. While, the evidence showed 95 percent causation of permanent disability to the pre-existing condition, we were able to resolve the claim for $230,000.00 based on securing housekeeping, transportation and medical treatment that the defendant would have been responsible to pay for if settlement did not occur.
Making a false or fraudulent worker’s compensation claim is a felony subject to up to 5 years in prison or fines of up to $150,000.00 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.