March 09, 2017
For the third time this week, I have to turn down an injured worker's request for legal representation. The reason was, he/she came to us too late. The injured worker had been evaluated by a Qualified Medical Examiner who gave a very low WPI and no need for further medical care. And this was an orthopedic surgeon that we have deposed numerous times before and did not change his unreasonable opinion. The primary treating physician was no help either because it is one of those clinics that do not provide reasonable Permanent and Stationary Reports.
So for those injured worker who may read this blog, please do the following after you sustain injury at work:
1. Report the injury immediately. Your employer will use it against you if you don't. Most of the time, the injury may feel like it was not serious. But you will not know until the next few days and then, it may be too late to report because most employer has a policy of requiring its employees to report work injuries immediately.
2. If you report it to your foreman/supervisor and your report was ignored, call it in to your employer's office. Employers are required to give an injured worker a Claim Form within 24 hours of knowledge.
3. If medical treatment lasts for more than 10 days, consult an attorney specializing in workers compensation. That consultation is given free. And you do not have to hire the law firm you consulted.
4. Retain legal counsel before any Qualified Medical Evaluation. Most law offices know which doctors are conservative and which ones are more compassionate to injured workers. It will cost you the same if you retain counsel sooner or later. It is a percentage of the benefit the law firm was able to secure for you. It is usually 15%. And understand, 15% of zero is zero. Which means, if no benefit was secured, you do not owe the law firm anything. Probably, just a "thank you".
December 26, 2016We just completed attendance at our annual Rating Seminar in Monterey. We have been reinvigorated, inspired and energized to continue our continuing fight for the rights of all injured workers. With the coming of the new year, we renew our commitment to the noble mission of our association - TO PRESERVE, PROTECT and DEFEND the rights of injured workers in our great State of California.
There are at least two changes in the law that severely affect the benefits of the low income workers - right to speedy and effective medical care and permanent disability.
With the advent of Labor Code sections 4610.1 et seq, employers and insurance companies gained two bites at the apple - requiring injured workers to be treated by physicians in their Medical Provider Networks (MPN) and allowing review of all medical treatment of MPN physicians by another physician with the insurance companies, the utilization reviewers. On top of these, any disputed medical care will only be settled (with very limited exceptions) via the new process created, the Independent Medical Review (IMR). Our State has contracted with an organization called MAXIMUS to provide this expertise. The last time I looked at the statistics, more than 80% of all disputed medical treatment are denied by the IMR (UR denials were upheld by Maximus).
With limited success, we have been fighting to minimize the adverse effect of this law by holding the insurance companies answerable to the letter of the law. One of the small victories attained where defendant did not have at leasts three (3) physicians in the MPN in the specialty requested by the injured worker. If we successfully establish this, then the injured worker can treat outside of the MPN.
One such cases is Lescallett v. Wal-Mart, 2015 Cal. Wrk. Comp.P.D.LEXIS 196. In this case, an employee tripped and fell at work on 07/06/2010 and injured her neck, shoulder and knee. In 2014, she decided to change primary treating physician (PTP) within her employer's MPN per Labor Code section 4616.3(b). She attempted to select a pain management PTP per 8 CCR 9767.6(e). However, she found that said MPN only has four (4) pain management doctors within 60 minutes or 30 miles of her home or work which did not comply with the ACCESS STANDARD for primary treating physicians that says at least 3 physicians in the appropriate field of specialty chosen by the injured worker within 30 minutes or 15 miles from her home or work. Her employer claimed that it meets the access standard because the chosen PTP is a specialist.
The trial judge and the WCAB Commissioners agreed with the injured worker and she was authorized to select a pain management physician as her PTP OUTSIDE OF HER EMPLOYER'S MPN.
One of the important arguments used by the employers and insurance company in passing SB 863 is that it will increase the Permanent Disability (PD) Award. That is only partially true. It is true that the maximum rate (dollars per week) of PD was raised from $230 per week to $290 per week for injuries occurring after 01/01/2014. However, the number of weeks corresponding to the percentage of disability was lowered for PD's less than 72%. This severely affects the low income injured workers because the rate, dollars per week, remains at two-thirds of their average weekly earnings on the date of the industrial injury.
An example will be for an injured worker who got injured in 2014 with an average weekly earnings of $300.00 per week. Two thirds of this is $200.00 which will be his PD rate.
If he sustained PD of 20%, his PD award will only be 75.5 weeks x $200 per week = $15,100.00
Conversely, if he was injured in 2010, his PD award will be 90.25 weeks x $200.00 per week = $18, 050.00 plus or minus 15%, a loss of about $2,950.00 which is very significant for our poor low income workers.
Now that we have super majority in both the State Senate and State Assembly, perhaps we can correct at least these two inequities?
I just got back from the CAAA Strategic Planning retreat.
What is Strategic Planning? Basically, the California Applicant Attorney Association (CAAA) has its chapter members, committee members and board of directors all meet up once a year to discuss workers' compensation issues. We discuss things like current legislation, political strategy, and how to organize our upcoming conventions.
I can't go into too many specifics, but I feel like I learned a lot over the weekend. I've attended this retreat three years in a row now, and I'm always amazed by how hard our association works on helping injured workers. I get tips on how to zealously represent my clients. I also learn what to expect in the future; which way the wind is blowing, so to speak.
I will say that, despite Trump being our president-elect, I think the pendulum will start swinging in the right direction. For far too long, the insurance companies have gotten the better deal of the "bargain." (If you're not familiar with this bargain, I will explain. When workers' compensation was first created, the deal was this: employees gave up the right to sue their employers for negligence/tort. In exchange, employers were to provide expedient medical treatment and benefits.)
I am once again renewed and invigorated to represent my clients. I enjoyed discussing current issues with attorneys who have 30+ workers' comp experience!
Last month, I attended a CAAA Retreat for the Board of Directors and for CAAA chapter presidents in Los Angeles. I always enjoy meeting with the great minds of CAAA and learning from their experience.
Chapter presidents basically were taught how to properly run our chapters. CAAA has 20 chapters throughout California. I am currently in my 3rd year being the president for Monterey. We have a humble, small group, but I am very proud of our group. We meet monthly to discuss issues and to meet with guest speakers, and to learn from each other.
Every chapter retreat I learn something new. And I meet new chapter presidents and great people. I plan on expanding on this after our Strategic Planning retreat coming up in November.
It seems like we are sppining our wheels and wasting a lot of our time by trying to overcome the myriad of delays the defendant is attempting at this time. One of those is the time spent in overcoming the efforts of defendants and their counsels to try to secure a Qualified Medical Examiner (hereinafter, QME) in the field of orthopedic surgery. The primary reason for this preference of orthopedic surgery is because that field is densely populated by qualified medical examiners who are less sympathetic to injured workers. This was made complicated by the fact that the medical unit which issues those panels is the tendency of the Medical Unit to prefer to replace issued panels with replacement panels in the field of orthopedic surgery.
The attorneys representing the injured workers are working very hard to maintain the integrity of the system by opposing attempts to load the dice further in favor of the already favored insurance companies and third party administrators.
If you are an injured worker, you can help us with this effort by consulting an attorney as soon as the claims administrator sends you an objection letter. It is this objection letter that will trigger the time clock for the issuance of a QME Panel. Or, at least consult an attorney as soon as a QME Panel issues.
We are very happy to announce that we have a new associate, Atty. Vanessa Bonifacio Redula (see below) This is very exciting and it gives us a rare opportunity to serve more injured workers negotiate the very confusing workers' compensation waters.
There is a lot of excitement in our office since May 15, 2015. My partner's wife, Vanessa Bonifacio Redula, passed the February, 2015 California State Bar Examination! Congratulations Vanessa! She will join our firm soon!
Vanessa graduated last December from the Monterey College of Law (MCL) and immediately took the February bar. According to the Dean of the College, the passing rate of this law school at the February 2015 bar was 60% which compares very favorably with the passing rate of 39.5% statewide of all who took that examination. Monterey College of Law is a California Accredited Law School and is one of the first California law schools to integrate a bar-study program into its curriculum. To put it in a better perspective, according to the Associate Dean for Student Success, Elizabeth Xyr, the California Bar Exam is acknowledged as the most challenging bar exam in the country. And Vanessa passed it with flying colors!