Painfully slow work comp case/ineffective lawyer

Latest post Wed, Oct 20 2010 9:55 AM by stevepsca. 6 replies.
  • Mon, Oct 18 2010 2:16 AM

    Painfully slow work comp case/ineffective lawyer

    I am 55 yera old female, worked till 2002 as delivery truck driver, then till 2005 on modified duty with same company as office worker till boss forced me to drive truck-make deliveries (didn't have enough drivers to fulfill deliveries) First injury in 02: 2 herniated discs with some congenital spondylolithesis/ arthritis. Injury due to repetitive heavy lifting. settled case @ 30% disability, worked modified duty till boss forced me to work too hard and I was permanently disabled (2005). It is all documented. Now I am waiting waiting waiting and finally pushed lawyer to sned me for QME with new Dr. Can you give me an idea of what to expect, or how I can get through to these people how bad off I am now. I cannot work, I cannot lift anything, cannot even clean my house, and can barely sit here at this desk to write this out. I am on chronic pain killers and my career is shot. All I want to do is work and I cannot. Any help you can offer would help. I have an old curmudgeon for a lawyer, he should have retired a decade ago. He sleeps through my appointments (I exaggerate). He does not even know the CA wc law. has to get his books out to decipher it. My fault for going to him I guess. Do I have any recourse?Thank you in adnvance for any advice.

  • Mon, Oct 18 2010 5:16 AM In reply to

    Re: Painfully slow work comp case/ineffective lawyer

    Find another lawyer, or continue to wait.

    Ok  I'm not a lawyer.  This is only my opinion /suggestion.  Most Replys' are based on information provided by the "original post" (OP).

  • Mon, Oct 18 2010 8:11 AM In reply to

    Re: Painfully slow work comp case/ineffective lawyer

    You can change atty any time you like, any time that is you can find another atty to take over your claim.

    The info here is not really clear though.

    You said you ''settled'' your claim with a 30% PD rating in 2005 (?)  If that was a lump sum C&R/Compromise and Release... the claim is closed. No more benefits will be due for this injury.

    When/Why were you sent to a QME (AME actually. as your have an atty) ?   Medical/legal evauation is used as first step in resolving disputed medical issues. IE, a denial of medical treatment, or failure to pay benefits.

    You were "permanently disabled in 2005", by what definition? Through the WC claim, or SSA/SSDI ?  Were you determined to be 100% "disabled"...?

    To tell you the truth here, no one can ''force'' another person to perform job functions. It was  your responsibility to remain within any restrictions of light duty place on you by your PTP. If the ER cannot provide the light duty job/modified work, you go back to your PTP and TTD would again be due. In your case, based on DOI/Date Of Injury, there was/is no cap on TTD.

    Whether or not TTD is due  now depends on the status of your claim... if there is a stipulation or finding by a judge in place, there probably is no TTD due, as you are past the 5 year SOL to petition to reopen the org claim.

    "He does not even know the CA wc law. has to get his books out to decipher it"

    Don't fault your attorney for checking the statutes. WC changes rather quickly, case law, en banc decisions etc, lots of attys rely upon those changes in applying the rules to a claim. Yours appears to be "normal" in that respect.   IF you have a stipulated award, or C&R, the atty fees have been paid. Lots of applicant attys won't continue to represent an IW once the fees are paid. The claim is presumed "settled".

    If you can clear up some of the information in your post, possibly more information can be provided.

  • Mon, Oct 18 2010 4:03 PM In reply to

    Re: Painfully slow work comp case/ineffective lawyer

    Thank you for the info Sorry I did not make myself clear. Yes, after the 2002 accident I did settle the case without a lawyer. I was considered 30% disabled. In 2005 I reinjured and am now unable to work. A new case was opened and that is when I got this lawyer. I was approved for SSD in 2007, at that time they concluded that I was 100% disabled for whatever that is worth. I am going to the QME (or AME?) next month because the insurance company has not seen fit to grant me a fair medicare set aside. I do not understand this system too well and have depended on this lawyer to do the right thing. Sorry to denigrate his abilities; I know the CA laws are complicated, but this is what he does: work comp cases. Its like the blind leading the blind.

    "To tell you the truth here, no one can ''force'' another person to perform job functions. It was  your responsibility to remain within any restrictions of light duty place on you by your PTP. If the ER cannot provide the light duty job/modified work, you go back to your PTP and TTD would again be due. In your case, based on DOI/Date Of Injury, there was/is no cap on TTD. "

    What is TTD?

    Yes it was my responsibility, but this is where it gets dirty: the boss demanded the work and threatened that I would be fired if I could not make the deliveries. (Don't think I have not taken responsibility for my actions, believe me I pay everyday for my poor judgement. But at the time I was thinking more about keeping my paycheck. An older woman with a disability is unemployable.) I understand the system is a 'no fault' system so I am simply screwed here. This is a business with an unusuaslly high incidence of back injury disabilities. I am the only woman though. The rest were men.

  • Tue, Oct 19 2010 7:54 AM In reply to

    Re: Painfully slow work comp case/ineffective lawyer

    There is NOTHING, any AME/QME can do, nor a WC judge about a Medicare Setaside Arrangement. Nothing. You are spinning your wheels by pursuing this.

    A WCMSA/Workers Compensation Medicare Setaside Arrangement proposal must be submitted to CMS/Medicare for review and approve, that there is sufficient funds to protect Medicare interests.

    You cannot force a cash lump sum to close the medical in your comp claim. If you don't like the figures submitted or proposed by the carrier, sorry, tuff. If the proposal has been submitted to CMS and approved...that's the way it is. There is no dispute process in the MSA process. CMS makes the determination on what they want to see in a cash payment for your medical care, that is allocated to the MSA.

    TTD is Temporary Total Disability benefits. Your DOI in 2005 has a 104 week hard cap. There are no extensions, even if you go to court.

    There are changes in the WC laws every day. Every day. There are cases decided by the WCAB board offices, there are appeals, there are en banc decisions by the WCAB in Oakland. No attorney would possibly be up to date on every change. You may not be happy with how your claim is progressing, change atty, or do it yourself. Those are your options.

    The default settlement in any WC claim is payments on the indemnity due based on your PD/WPI rating, and access to future medical care. You cannot force a buyout on either.

    You should know the reason you are to be evaluated by the AME... but I can tell you now, it is NOT to determine the WCMSA amount. Doesn't matter what the AME says, about any dollar value, or specific need for future medical care.

  • Wed, Oct 20 2010 12:10 AM In reply to

    Re: Painfully slow work comp case/ineffective lawyer

    I'm sorry I forgot that Medicare DID refuse the insurance company's setaside amount. They sent a letter and CCed me stating that the amount the insurance company offered was a fraction of what it would cost to satisfy my medical needs (can't recall exact amounts). As far as I can tell this upcoming examination is supposed to be an objective doctor's opinion on my medical condition because the doctor's report from the doctor they sent me to originally was not acceptable to me, she minimized my situation.

    Am I really spinning my wheels? This system is so inadequate! How can a person who gets burnt from a fast food cup of coffee get millions of dollars while someone whose ability to make a living for themselves and their family is destroyed from a greedy employer's poor working conditions? I am left out in the cold to become homeless even though my career speaks for itself, I have never been a malingerer or tried to cheat the system. I only want to be able to work and make a f**king living. It's so wrong.

  • Wed, Oct 20 2010 9:55 AM In reply to

    Re: Painfully slow work comp case/ineffective lawyer

    The system in WC is not the same as a personal injury case. Not nearly alike in any way. The laws determine the benefits in a comp claim... there are virtually no laws that define the end result in a personal injury action. Those are determined by agreement/settlement between the parties, or litigation in a court of law. Not so in WC.

    The AME is not going to have any input in a WCMSA proposal. Doesn't mean a thing what this Dr is going to say.

    ALL, ALL medical care in a comp claim is subject to the MTUS/ACOEM treatment guides, or other EBM/evidence based medicine, with substantial reasoning by the provider why the treatment is medically necessary.

    That is not the case with CMS/Medicare.

    As far as I can tell this upcoming examination is supposed to be an objective doctor's opinion on my medical condition because the doctor's report from the doctor they sent me to originally was not acceptable to me, she minimized my situation.

    The AME may address your current medical condition... For rating PD/WPI...not for future medical care. The AME opinion on medical care is NOT relevant.

    When CMS evaluates a WCMSA proposal, the prior 2 years medical records are presented and evaluation for a projection of your future medical care needs. The WC carrier doesn't really have anything to do with this as they are not going to be paying the bills. YOU are, with the money provided in a medical settlement. CMS wants to be sure there are sufficient funds to cover those costs that Medicare would normally be responsible for. That is not the same as what the WC carrier might authorize.

    To tell ya the truth... It doesn't do any good to discuss the inadequacy of the WC system here, or how "things should be". What you think, what I might think is not relative to your current situation. Even if the laws were to change, not likely to affect your situation.

    Deal what "is", as long as you are being paid the benefits due, and have access to further medical care, you are in no jeapordy here.  It may not be in your best interests to close the medical in this claim. You aren't going to get the cash to spend as you see fit... it must go to your medical care for this injury.

    It is always in the best intersts of the WC carrire to close the claim by a cash payment. But you can't force it, and if they don't like the numbers provided by CMS, there is no appeal. There is virtually no sense in chasing this dollar issue. CMS isn't likely to change the numbers for at least another 2 mayby 3 years when they determine if your condition has substantially changed.

    The carrier would rather take the bet you won't require more medical than in the past, possibly less, to the extent the proposal can be adjusted downward. Or, that you won't live long enough to require that amount of medical care dollars. It's their call. Not yours, not CMS.

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