ALERT: Largest number of attorneys charged in one case in Orange County history
Five months ago, I wrote a blog about illegal marketing practices by cappers and attorneys. This falls in line with the recent bust of 10 attorneys and six cappers.
Re-read Jack’s Blog: Using Cappers Is Illegal
CHARGES FILED ON 10 ATTORNEYS AND SIX CAPPERS IN MASSIVE MULTI-MILLION DOLLAR WORKERS COMPENSATION INSURANCE REFERRAL SCHEME
Orange County District Attorney Press Release
Workers’ compensation fraud makes all legitimate injured workers and their workers’ compensation attorneys look bad. If you suspect that your lawyer and/or doctor are participating in workers’ compensation fraud, immediately report them to the San Diego District Attorney Workers’ Compensation Fraud Hotline at (800) 315-7672.
Workers’ Comp Case Law Review
California Workers’ Compensation Case Law Review
As part of my efforts to help injured workers and their representatives, I am starting a case law review which shall contain weekly or bi-weekly discussions of up to the minute decisions from the WCAB.
Whether you are an injured worker seeking guidance on a particular issue or an attorney trying to hone up on the law, these case reviews will provide you with valuable information about the inner workings of the workers’ compensation system.
If you have questions about the material or want to discuss the concepts further, please feel free to contact me at jack@sdworkcompattorney.com or 619.338.9012. If you are an injured worker, I provide free consultations on any topic or issue that may come up in your case.
Also, if you want to read the full case being outlined, you can subscribe to the Work Comp Central Panel decision service and get close to 100 Panel decisions every month. You can type in the ADJ number (case number) into the search engine to get the full decision on your computer.
Preliminary Discussion
As a preliminary discussion, the Department of Industrial Relations is the State entity responsible for administering the workers’ compensation system in the State of California. You can obtain a great deal of information from their web page at: http://www.dir.ca.gov/dwc/eams/eams.htm.
There are approximately 26 local offices of the Workers’ Compensation Appeals Board throughout the State of California. Each of these offices employs workers’ compensation judges (WCJ’s) to decide disputes which may arise between the injured worker and the insurance company. If either of the parties disagree with the decision of the WCJ, he/she can appeal to the Appeals Board in San Francisco.
There are two main vehicles to reach the WCAB in San Francisco. If the party is appealing a final order, the party must file a Petition for Reconsideration within 20 days of the WCJ’s decision (extended by 5 days for service by mail). If the WCJ’s decision involves an interlocutory order (i.e. a procedural order which does not determine the substantive rights of the parties) the order must be challenged by a Petition for Removal.
An example of a substantive order which merits a Petition for Reconsideration is a decision that the worker did not injure herself at work. In contrast, an example of an interlocutory order would be an decision that the worker is entitled to see a different doctor than the one requested by the insurance company.
All the decisions presented here have been appealed from the local WCAB courthouse to the San Francisco Appeals Board. Once it gets to San Francisco, the case is assigned to a three member panel of commissioners who will decide the issue.
Ramos v. Troy Lighting (ADJ2231165)
The first case being discussed today is Ramos v. Troy Lighting. In that case, the insurance company wanted to dismiss the workers case due to lack of prosecution. The WCAB cited to WCAB Rule 10582. You can find all these rules online or go to the law library.
8 California Code of Regulations [CCR] 10582 states that “Unless a case is activated for hearing within one year after the filing of the application for adjudication… the case may be dismissed after notice and opportunity to be heard. Such dismissal may be entered at the request of an interested party or upon the Appeal Board’s own motion…. A case may be dismissed after issuance of a ten (10) day notice of intention to dismiss and an opportunity to be heard.”
When dismissal of a case is sought by a defendant, WCAB Rule 10582 also requires that defendant first send a letter mailed to the applicant and, if represented, to the applicant’s representative more than 30 days before the filing of the petition for dismissal and then attach a copy of that letter to the actual petition when filed at the courthouse.
In Ramos, the WCAB vacated a dismissal order because the insurance had not properly notified the worker.
The takeaways from this case are:
(1) open your mail to make sure you are not being served with notice of an intention to dismiss your case,
(2) communicate with the insurance once a month – or – if represented, with your attorney once a month to make sure they don’t think you have abandoned your case, and
(3) always let everyone know if there is a change of address.
I am presently helping a worker whose case was dismissed because all the notices were sent to an old address. If the insurance can show that the worker never told his old attorney about the address change, the Judge may find that it is the worker’s fault that his case got dismissed!
Mitchell v. City of Los Angeles ADJ10591383
The next case we are discussing today is Mitchell v. City of Los Angeles. Here, the defense attorney signed a settlement stating that the worker would get benefits based on the rates in place at applicant’s date of death 2015 instead of applicant’s date of injury 2002. In 2015 the death benefit was $250,000.00; in comparison in 2002, the death benefit at $125,000.00. The Judge approved the settlement at the $250,000.00 amount which had been signed by all parties. Once the insurance found their mistake, they tried to have the settlement “undone”. The WCAB held that there was no good cause to “undo” the settlement.
This case teaches us that is critically important to read the settlement you are signing and make sure you understand what it says. Once the WCJ approves the settlement, it is very difficult to get it overturned.
Many times I have workers call me who are unhappy with the settlement they had signed. Sometimes they say that it was not explained to them properly or that their prior attorney scammed them into signing something that they did not intend to sign. I usually tell these people that it’s too late. All the questions about the settlement should have been discussed prior to signing the documents; once the ink dries it’s too late to come back to court with “buyer’s remorse”. If the attorney actually scammed the worker, he/she should be reported to the State Bar of California at:
http://www.calbar.ca.gov/Portals/0/documents/Regulation/2015_ComplaintFormENG0915-r.pdf
Obtaining Medical Care in a Workers’ Compensation Claim
Work Comp Treatment: A Challenging Endeavor
Obtaining medical care in a workers’ compensation claim has become a very challenging endeavor. This blog entry will explore medical care within the workers’ compensation system and provide some helpful hints so that the injured worker can help his/her doctor in successfully requesting industrial medical care.
In 2013, the legislature in Sacramento increased the permanent disability benefits workers were entitled to. In order to off-set these increased permanent disability benefits, the workers’ compensation laws were changed to make it harder for workers to get medical care.
Presently, before the worker can get any medical treatment, the primary treating physician (PTP) must fill out a request for authorization (RFA) describing the type of care being requested and justifying the care using a new system called evidence based medicine. Evidence based medicine requires the doctor to tell the insurance company how the care will “benefit” the patient. The main criteria for describing treatment benefits is a positive impact on the worker’s activities of daily living (ADLs). Without this justification, the treatment request is DOA.
What You Should Know
The worker can help the doctor get the care authorized by describing how the treatment has helped him/her. My suggestion is to bring in a sheet of paper (preferably typed) describing how you feel with and without the treatment. For example: “When I take my NORCO medication, I can walk for ten blocks before I have to rest. Without the medication, I can only walk for two blocks.”
The positive impact on the worker’s ADLs can cover all daily activities such as housework, shopping, ability to work, ability to socialize, participate in hobbies – anything that comes to mind. The following activities are included in the American Medical Association Guides which doctors must adhere to: brushing teeth, eating, combing hair, bathing, going to the bathroom, dressing, writing, typing, ability to sit, hear, speak, stand, walk, climb, taste, smell, grasp, lift, carry, ride public transport, drive, fly in an airplane, have sex, sleep, rest, bend, stoop, squat, reach, kneel, balance, push, pull & twist. Noticing how the treatment (acupuncture, therapy or medicine) helps you perform these activities and bringing a chart in for the doctor to include in his treatment requests will go a long way towards justifying continued care.
When it comes to medication, the workers’ compensation insurance believes that eventually, the worker should end up taking ZERO medication. When the worker has a chronic pain condition or has undergone several surgeries – the idea that they can get through the day without any medicine appears to be a cruel way to save the insurance company money that should be spent on appropriate medical care. The list described above may give your doctor enough “ammunition” to support continued use of medication. If the medication is “cut off”, then the worker should start a list of how his/her activities have been reduced due to the lack of medicine.
Once the doctor sends in the RFA, the insurance company will send the treatment request to utilization review (UR). The UR agency is usually an independent contractor hired by the insurance company to tell them if the treatment on the RFA has been justified. The UR agency has seven days to make the determination. If the UR company does not make their decision within the seven days, the worker can file for an EXPEDITED HEARING and attempt to justify the requested treatment before a workers’ compensation judge (WCJ).
MAXIMUS Federal Services
If the treatment is authorized, the doctor and the worker will be notified of the positive result and the treatment can begin. If the treatment is denied, the worker can appeal the denial to Independent Medical Review (IMR). The State of California has contracted with a national agency – MAXIMUS Federal Services – to conduct all IMRs in the State. Unfortunately, MAXIMUS is denying 90% of the care that is appealed to them.
The MAXIMUS denial is good for one year – yet – the denial is doctor specific; so, if a different doctor requests the same treatment, the insurance company has to conduct a separate UR review. Once more, the main justification for medical care under evidence based medicine is a positive impact on the workers ADLs. If the doctor does not describe this positive impact in the treatment request – there is very little chance for success.
Medical Provider Networks (MPNs)
Another important change in workers’ compensation medical treatment is the advent of Medical Provider Networks (MPNs). Most insurance companies have MPNs which is a list of doctors the worker is authorized to treat with. Usually the employer will send the worker to the “company doctor” – an occupational medicine clinic which is able to provide basic care. The occupational medicine doctor has been told to get the worker back to work asap. I spoke to a worker recently who was sent back to work two weeks after shoulder surgery; the worker was basically supposed to do one arm work until his shoulder healed. The employer told the worker there was not “one armed work” available and sent the worker home. If the company doctor sends the worker back to work, the insurance company does not have to pay any temporary disability while the worker works in pain.
The worker should ask the insurance company for a link to their MPN so the worker can choose a doctor that will not sell him/her down the river to get more referrals from the insurance company. If you have an attorney, your attorney can tell you who the “honest” doctors are in the MPN. If you don’t have an attorney, please feel free to e-mail me the link, and I can tell you which doctors are legit.
The worker has the right to a second and third opinion within the MPN when it comes to diagnosis and/or treatment. So, if the first MPN doctor does not get it back, the worker can tell the carrier he/she wants a second opinion.
In summation, workers’ compensation medical care has become a very frustrating process where many of the necessary care is being denied to save the insurance company profits. It is very important that the worker help his/her doctor in justifying the care which is working by bringing in the list of functional improvements in the MPN.
Workers’ Compensation Impact for Medicare and Medi-Cal Recipients
A question which frequently comes up during settlement discussions is whether the workers’ compensation settlement will affect a worker’s Medicare or Medi-Cal benefits.
The first issue to clear up is the two ways that the worker can settle their workers’ compensation claim. The first is by way of “Stipulation” keeping future medical care open. The stipulation will describe the parties that are involved in the case, the body parts that are injured, the benefits paid to date and the percentage of permanent disability. Each percentage point of permanent disability is approximately $1,000.00. The higher the percentage, the greater dollar amount tied to that percentage point.
A stipulation will keep the medical care open for the body part that is being settled. There are two areas that call for vigilance on behalf of the worker:
(1) Make sure that all the body parts are included in the settlement. The relation to a disputed body part to the work injury should be established before going to court to settle the case. Once you get the settlement conference, it might be too late to start adding body denied parts to the agreement. The body parts noted in the agreement will impact what medical expenses Medicare will pay for, so this is something that must be thought out and properly described in the settlement.
(2) The second area which must be looked at carefully is all the language the insurance company will put in the boxes provided by the settlement form. Many times they will say that mileage and out-of-pocket expenses are being resolved. If these expenses have not been paid, then, that note in the settlement should be crossed off. The defense attorney may try to “sneak-in” the resolution of some rights that have not been bargained for. The worker and his/her attorney must be alert to this tactic and make sure that the settlement reflects what the parties intend to resolve.
The second type of settlement is called a “Compromise & Release” (C&R). This type of settlement normally closes all aspects of the case. Once the Judge approves the C&R, it will be next to impossible to undo the agreement.
When the worker stipulates his/her case, the payments are made in bi-weekly installments of approximately $580.00 every two weeks. So, for example, if a worker settles his/her case at 15% permanent disability (PD) – the worker will be paid $14,645.00 at $580.00 every two weeks.
A C&R will normally pay the settlement amount in a lump sum. If the worker with the 15% PD negotiates a “buy-out” of his/her medical care for an additional $20,000.00 that worker will receive a check for: $14,645.00 + $20,000.00 = $34,645.00. Many times the insurance will start the PD payments before the settlement date. If prior PD payments are made, these would be deducted from the settlement.
If a worker is receiving social security at the time of the settlement, the work comp insurance will not settle the claim for more than $25,000.00 without first talking to Medicare and seeing how much Medicare thinks the workers should get for his/her medical care. About thirty years ago, the federal government enacted statutes that protect the interests of Medicare. The federal government realized that many injured workers were not getting enough money to settle their future medical care and were asking Medicare for help once the money ran out.
The laws now state that if the parties ignore Medicare’s interests when settling their claim:
(1) Medicare may refuse to pay any medical care for the industrially injured body part(s) and
(2) If Medicare does pay, they may come after the parties for reimbursement.
Once the parties talk to Medicare, and Medicare tells them how much the worker has to be paid, the parties are safe and Medicare will not determine that their interest were ignored.
If the injured worker wants to assure himself/herself that Medicare will “pick up the tab” when all the workers’ compensation money is used up, the worker must show Medicare that every penny of the work comp medical money was used to pay for medical expenses. If the worker shows Medicare that he/she did use up all his Medicare approved medical care monies for medical care then, Medicare will normally step in and pay for medical expenses once that money is used up.
Many of my clients fret over the forms that are given to them noting all the responsibilities they must take upon themselves in order to protect Medicare. If the worker does not plan to ask Medicare for future help for the industrial body parts, the money may be spent on the necessities of life. However, if the worker cannot show that the money was used for medical care, Medicare will no longer be responsible for future costs.
Sometimes a C&R settlement is so large that the insurance company will want to structure the payments. For example, instead of giving a worker $250,000.00 in a lump sum, the insurance company may put $150,000.00 in an annuity that will pay the worker $10,000.00 a year for the rest of his/her life. There is usually some “up-front” money to start off the payments and then the yearly amounts are allotted.
In these types of cases, the worker would have to show Medicare that his/her yearly amount was used for medical care. Once that is done, Medicare would cover the costs until the next year.
There is another aspect of the settlement which could impact your social security checks. If the worker is not over 62 and is getting social security disability insurance; social security will take a credit for any monies paid out by workers’ comp for the same disability social security is paying for. For example, if a worker injures her knees and can no longer walk, she may qualify for social security disability payments. If these payments are $1,000.00 a month once workers’ comp starts paying – social security will stop until the work comp payments are all paid out.
So what happens if a 35 year old worker who is getting social security because of the industrial injuries settles her claim for $45,000.00? Let’s say $20,000.00 is due to the disability and $25,000.00 for medical care. How much will social security deduct from each check? What would happen is social security will divide the $20,000.00 disability payment throughout the expected life of the injured worker. If the worker is expected to live another 50 years, then, the $20,000.00 is divided by 50 = $400.00 a year or $33.33 per month. Social security will deduct $33.33 from each monthly social security check. This calculation should be included in the settlement to
(1) show social security that their interest were taken into account and
(2) to show them how much should be taken out each month.
Social security will do their own calculations, but they may adopt what the settlement says as an accurate reflection of the worker’s life-span and monthly payment deduction.
When it comes to Medi-Cal we are looking at a different concern. In order to qualify for Medi-Cal a worker can only have a certain amount of money in the bank. A huge settlement may disqualify the worker and his/her family for Medi-Cal benefits. The safest way to better ensure that nothing bad happens is to take the settlement to social security or Medi-Cal prior to signing. That way there are no surprises down the line.
The final issue that must be covered is conditional payments. These are medical bills paid by Medicare or Medi-Cal prior to the settlement. If these are not paid back, Medicare and/or Medi-Cal can come after the worker’s social security checks for reimbursement. The general rule of thumb is to never sign a settlement when Medicare has paid prior medical care for the industrial injury until Medicare/Medi-Cal are fully reimbursed.
What to Expect When You Meet Your Attorney For the First Time
When you are going to meet with your workers’ compensation attorney, there are several things that you should do in preparation:
1. Make sure you have all your documents ready. These would include the following:
a. Medical records regarding your injury including diagnostic studies, as these are important to understand the nature and extent of your injury. Also, sometimes the doctor will not note all the injured body parts, so your workers’ compensation attorney must make sure that all the injured body parts are accounted for in the medical records. If the doctor has missed a body part, your attorney may tell you to speak with the doctor to make sure the missing body part is included. Many times when the worker goes to an Agreed Medical Evaluator or a Qualified Medical Evaluator, the evaluating physician will make determinations based on what was previously noted in the treatment records. If the treating doctor did not list all the injured body parts, it may be difficult to get the evaluating doctor to include these as industrial down the road.
Also keep in mind that the company doctor and workers’ compensation insurance may be working together to minimize what the insurance has to pay. Many times the company doctor will only treat the body parts authorized by the workers’ compensation insurance
b. Any letters which the workers’ compensation insurance company has sent you. These letter will allow the attorney to obtain important information about your case including the claim number and date of injury noted by the insurance. The letters will also have the claims adjuster’s name and phone number. The name of the insurance is necessary to properly fill out the Application, which will be filed at the Workers’ Compensation Appeals Board (WCAB), so it is important that you bring this information to the attorney.
c. Bring pay stubs to help your attorney figure out whether the insurance company is paying you at the right rate. The carrier must pay you at two-third’s of your regular salary. If you are working more than one job, your second job will also be considered when deciding what rate the workers’ compensation insurance will be paying you.
2. Be ready to discuss what happened.
Try to have the event(s) leading up to your injury organized in your mind. California workers’ compensation is a no fault system; this means that you get the same amount of benefits no matter who caused the injury. Many times a worker will feel the need to state all the bad things the employer did to cause the injury; this is just not needed in a workers’ compensation claim.
Another issue that has to be determined is whether we are dealing with a specific injury. A cumulative trauma or some combination of both. Specific injuries are easy to determine; they involve one event were the worker suffered an accident which in turn caused a physical or psychological injury. Many times the company doctor will attribute a large part of the injury to degenerative changes. If a worker has been doing the same kind of work for many years, the attorney can argue that the degenerative changes are also related to the rigors of the job and add a separate cumulative trauma injury in order to deflect what the company doctor is saying.
It is important that all injured body parts are accounted for. Adding another body part six months down the line will be difficult if the worker has been off work during that time period. The carrier will ask why the omitted body part was not discussed from the get go. At the same time, some consequences of the initial injury do not show themselves for months or years. The workers’ compensation insurance is responsible for all compensable consequences of the original injury; so, for example, if you are taking anti-inflammatory medication and these cause an ulcer, the carrier is responsible for all the treatment the ulcer needs and for any disability the ulcer has caused.
3. Your attorney will need to make sure you are with a doctor who will treat you well both medical and legally.
Most workers’ compensation insurances have Medical Provider Networks (MPN’s). By law the worker must use an MPN doctor in order to receive benefits. If your lawyer is trying to send you to a doctor outside of the MPN, you should ask him/her why they are not playing by the rules. The attorney’s job is to find a legitimate doctor within the MPN. The treating doctors “run the show” in work comp cases, so it is very important that the doctor will at least be fair to both parties.
MPN doctors are told to get the worker back to work ASAP. It will be very difficult to find a doctor that will take the worker off work. More than likely, the doctor will place restrictions on the worker. It is up to the employer at that point to determine if light duty will be available. If no light duty is offered, then the workers’ compensation insurance will pay temporary partial disability until the doctor releases the worker from active care.
It is important for the worker to go to all scheduled medical appointments. Settlement offers are based on both the disability and the amount of medical care needed. If the insurance company sees that the worker is missing a lot of appointments, they will factor that into the settlement proposal and lower the offer.
4. Finally, the attorney should be able to provide you with a “game-plan” as far as what to expect in the foreseeable future.
Many things may be uncertain, yet, the attorney should be able to tell you how these uncertainties will be resolved.
A worker has the right to interview with more than one attorney prior to deciding which attorney to hire. The main complaint workers have is not being able to contact their attorney to discuss their case. You should ask the attorney whether he/she will be handling the case or whether an associate will be delegated the decision making duties, how accessible they are, and any other question which you think is necessary.
I personally handle all my cases. If you think your attorney is not properly advising you or keeping you informed, I can provide you with a free consultation. However, before seeking out a different attorney, you should try to work things out with your present attorney. This will avoid unnecessary delays. Keep in mind that the workers’ compensation system is very slow and highly regulated, and there are limits to what an attorney can do when it comes to medical treatment being denied even at the request of your doctor. Changing attorneys may not be the answer for you.
Using Cappers is Against the Law
Cappers
One of the main issues with workers’ compensation fraud is the use of cappers to obtain clients and patients. Insurance Code §1871.7 states that the use of cappers to procure clients is a criminal offense! These cappers, disguised as marketing firms, are located all over California with a concentration in Los Angeles and Orange County.
A capper is a person who drums up clients for attorneys. One technique used by cappers, in recent times, is for them to leave cards at shopping malls and swap meets urging potential injured workers to contact their call center. When a worker calls the number on the card the “marketing agency” will usually send someone to the injured workers’ home to fill out the paperwork. The paperwork is then sold to an attorney.
What injured workers do not understand is that if they do not speak to an attorney directly when they are seeking representation, there is no way that that attorney can know all the intricate details of the claim in order to properly make legal decisions and properly represent the injured worker.
Moreover, it appears that these marketing agencies are specifically targeting the Latino community. It may be because these cappers, attorneys and doctors believe that Latino workers are less sophisticated and more trusting.
Attorneys & Doctors Involvement
Marketing agencies are also cold-calling people’s homes trying to solicit business for their attorneys. These attorneys will typically pay anywhere from $3,000.00 to $8,000.00 a month to get a set number of “leads” from these marketing service companies. These cappers, disguised as marketing agencies, are under a great deal of pressure to find new clients for their attorneys, so they will some times refer the same clients who have already settled their claims. In some cases, they will even fabricate new claims.
The attorney may then refer the worker to a doctor friend (usually a chiropractor) who will then send the worker out to numerous exams and diagnostic studies, which may or may not be necessary. At times, the doctor may add body parts to the claim which the injured worker did not even complain about!
If you discover that your doctor is treating body parts which are unrelated to the industrial injury, you should report this as insurance fraud to the District Attorney’s hotline number (800) 315-7672.
A True Story
One of my clients told me that her previous Los Angeles attorney brought her to the parking lot outside the courthouse whenever he wanted to talk to her. The attorney refused to show her medical reports, which she wanted to use to go forward in trial and forced her to sign a small settlement. This Los Angeles attorney did not want to spend the time needed to maximize the claim to get the benefits owed to the worker. The attorney simply wanted a quick and easy settlement, so the attorney could move on to the next victim.
What You Should Do
Workers’ compensation fraud has plagued the San Diego workers’ compensation community for many years. Workers’ compensation fraud makes all legitimate injured workers and their workers’ compensation attorneys look bad.
If you suspect your lawyer and/or doctor of participating in workers’ compensation fraud, you should immediately report them to the San Diego District attorney workers’ compensation fraud hotline at (800) 315-7672.
If you need additional information or just have questions, contact San Diego Workers’ Compensation Attorney Jack Don TODAY!
Workers’ Compensation Settlements
A settlement in workers’ compensation is based on two main components:
(1) the permanent disability percentage and
(2) an estimate of what future medical care will cost for the industrial injury.
I.
The permanent disability aspect of the claim is calculated by first making a determination of the worker’s whole person impairment (WPI). This calculation is determined, at first, by the worker’s primary treating doctor (PTP). Once the PTP has finished providing active care, he/she will write a permanent and stationary report (P&S) report describing the impact the injury has on the worker’s activities of daily living (ADL).
From 2004 to 2013, the WPI figure was adjusted by a variable diminished future earning capacity (DFEC) factor. This factor would multiply the WPI number by a factor from 1.1 to 1.4 depending on the body part. For example, if the State thought people with a shoulder injury normally suffered a greater diminished earning capacity compared to a knee injury, the shoulder injury would be multiplied by a bigger factor than the knee injury. This was an effort by the State of California to even out what injured workers would get by way of a permanent disability award.
After 2013, the State decided to give all body parts the same factor of 1.4. After the WPI is multiplied by the 1.4, the disability rater would factor in age and occupation. Generally, the older the worker and the more arduous the work, the greater the disability.
II.
The second component of a workers’ compensation settlement is the value the parties place on future medical care. Certainly, a worker who may be looking at future surgery will need more money to settle his/her claim than a worker who only needs over-the-counter medication to alleviate his/her condition.
If the worker is on social security, the workers’ compensation insurance must account for MEDICARE’s interest in the settlement. MEDICARE does not want the injured worker knocking on their door for medical care related to the industrial injury. For this reason, the Federal Government has passed legislation which prohibits the settlement of a workers’ compensation claim without taking MEDICARE’s interest into consideration.
In order to comply with the Federal Statute, the workers’ compensation carrier must make a legitimate determination of what the workers’ lifelong medical care will be. Usually the carrier will contract with a MEDICARE specialist who will take into account the worker’s last two years of medical care and come up with an amount.
Sometimes, if the MEDICARE amount is too high, the parties will consider a structured settlement. With a structured settlement, the carrier deposits a lump sum amount into a back which will grow each year by accruing interest. For example, if the MEDICARE set-aside is $750,000.00 over the next 30 years, the carrier may only need to put $500,000.00 into the bank account in order to pay the $750,000.00 required by the MEDICARE set-aside.
The carrier does not have to close the case and pay out a large sum of money if they don’t want to. This type of settlement can only be reached if both parties are in agreement. If the parties cannot agree on an amount, or the amount is too high, the case will be settled by way of Stipulation. With a Stipulation, only the permanent disability aspect of the case is paid out to the worker. Medical care for the industrial injury remains open for the rest of the worker’s life.
The worker can request an advance from the settlement. If the carrier refuses to pay the advance, the carrier can Petition the Workers’ Compensation Appeals Board (WCAB) for a commutation of funds. Whether or not the Judge will order the carrier to pay a lump sum is totally discretionary. The Judge will have to determine what is in the worker’s best interest.
For additional information on workers’ compensation settlements, contact our office TODAY!
Psychological Injuries are Disfavored in CA Workers’ Compensation law
All our lives are stressful, so if employees could file a psych claim anytime employers stressed them out, every employee would have a psych claim at one point or another. For this reason, employees alleging industrial psych injuries must meet a higher threshold of proof in order to prevail.
Labor Code §3208.3(b)(1) states that “In order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury. This means that the employee’s proof must show that the industrial component of the psych injury was over 51%.
Labor Code §3208(b)(2) notes that psych injuries stemming from a violent crime must only be proved by way of a substantial factor which equates to 40% of the causal nexus.
An employee must be employed for at least six (6) months before he/she can allege a psych injury, unless the psych injury stems from a sudden and extraordinary event. There are many cases defining a sudden and extraordinary event. Judges have held that a bad car accident may rise to the level of sudden and extraordinary, while a falling from a ladder while picking avocados may not. This determination is made on a case-by-case basis. It is important for the employee to prove that whatever happened is very rare, in order to win on this theory.
If the psych injury is filed after a notice of termination or lay-off (including a voluntary lay-off) the employee must show one of the following:
(1) The event was sudden and extraordinary,
(2) the employer knew of the injury before the termination or lay-off,
(3) there are medical records prior to termination or lay-off which show there was an injury,
(4) there was sexual or racial harassment involved,
(5) the date of injury was after the termination (i.e., the employee was not aware of the injury until after the termination.)
The employee cannot win on a psych claim if the reason for the injury has to do with good faith personnel actions. For example, if the employee is constantly late, and the employer yells at her to be on time, causing stress in the employee – that would not be the basis of a legitimate psych claim.
For more information on psychological injuries and claims, contact me today.
Choosing the Best Attorney to Start Your Case
Specific Event, Multiple Specific Events or Cumulative Trauma
One interesting issue when first filing your workers’ compensation claim is determining whether the injury was caused by a specific event, several specific events or a cumulative trauma. In some cases, there are both cumulative trauma and several specific events involved.
Under the Benson Doctrine, two separate injuries cannot be combined to form one big permanent disability award. The doctor must determine what portion of the disability is caused by each specific event and what portion is caused by a cumulative trauma. Since a larger disability percentage would cause a larger award, the worker must determine if one combined injury can be justified from many small specific events at work.
Example: If Alex has a job at a plant nursery where he is lifting plants every day for years, it may be that on several occasions he hurt his back while lifting. Perhaps Alex even went to the doctor or chiropractor to get treatment after each specific incident. Many years later, when the injury becomes completely disabling, Alex may be better served by pleading a big cumulative trauma injury instead of several specific injuries. Just to show you how this works:
2014
Four 5% injuries ⇒ $17,400
vs.
One 20% injury ⇒ $21,895
…
Four 10% injuries ⇒ $35,090
vs.
One 40% injury ⇒ $58,290
The Doctor
It is really up to the doctor to make the final determination as to how many injuries there are. The worker is allowed to highlight the reasons why she thinks that it would be more accurate to add all the specific injuries together as opposed to separating the main specific injuries and lowering the award. This would be especially clear if the specific injuries were so minor that medical care was not needed and time from work was not lost.
Another Complex Issue
A more complicated issue arises when trying to determine whether there is one cumulative trauma claim or more. In a 1994 case entitled Western Growers Insurance Co. v. WCAB, the court discussed when there is one cumulative trauma claim versus two or more cumulative trauma claims. The court held that when there is no break in receiving medical care and/or disability payments between the injurious periods, there is but one cumulative trauma claim. If, on the other hand, there is a period of time when the worker does not receive any medical care and/or disability payments, then suffers a later period of injurious exposure, two cumulative trauma injuries can be justified.
Choose Your Attorney Carefully
As you can see, there are many complicated issues that arise as soon as you have your work injury. Hiring the right advocate to protect your interest from the beginning could be the difference between a small award and a large award. Call my office today to set up an appointment to meet with me. I am here to help!
San Diego Workers Compensation Attorney 