shutterstock_50712445-300x200Independent Medical Review

Q: My claim for 2nd surgery to remove the metal plate in my wrist was denied, My treating surgeon said he’ll appeal for me. This is a workers comp case: I broke my wrist last year. A year later, I asked my doctor to remove the metal plate he placed on my wrist because it caused pain. My doctor agreed the plate should be removed. But the request for 2nd surgery was denied by the insurance company. Now, He is going to appeal for me by sending additional info on my condition. Is it correct that I should wait to see the result of my doctor’s appeal then decide if I need IMR? Or, I still need to request IMR within 30 days even my doctor is appealing? My doctor is confident and told me not to worry.

A: That is great that your Doctor is appealing the decision for you, but my advice is to proceed with requesting IMR. The reason I recommend filing for IMR now is because if you do not file for IMR within 30 days, you lose your right to IMR.

On another note, I am going to give you the same advice I give every unrepresented person I speak with, retain an experienced, caring, and professional Workers’ Compensation attorney to walk by your side down this Workers’ Compensation path. One of the reasons the California Workers’ Compensation system is so great is because they allow the injured worker to be represented. Please take advantage of this luxury and find an attorney to fight for your rights. The Insurance Company has an adjuster and a defense attorney working for them why don’t you level the playing field.

Thank you for trusting AVVO with this portion of your case and please think about retaining an attorney.

shutterstock_163203119-300x200Qualified Medical Evaluator Reporting

Q: After look the neutral doctor how long do I have to wait, to get worker compensation benefits. I have appointment in March.

A: I am going to answer this question ASSUMING you are asking about disability benefits and the “neutral” exam you are referring to is a Qualified Medical Evaluator (QME) Exam as it sounds like you may be seeing a QME to address compensability.

What that means is that the doctor will answer the question of whether your injuries are causally related to your employment. If the doctor does find that your employer is responsible for your injuries, the next thing he/she will address is your disability status. If the doctor also finds that you are temporarily totally disabled (TTD), you will be entitled to TTD benefits which equal two thirds of your weekly compensation.

In terms of time frame, the QME is required to issue his/her report within thirty (30) days of the date of your exam. If all things above are found in your favor you MAY receive benefits within 45 days of your exam.

Again, this answer is assuming a lot, if it does not answer your question please add some more details so we can answer that specific question.

Thank you for trusting AVVO with these important questions regarding an integral portion of your case.

shutterstock_106400144-300x196California Exclusive Remedy Rule

Q: Can I sue my job for negligence, in the civil court? They called me after my injury and provide all the employees with boots for safety. I have a workers’ compensation claim against them. Can I do civil too, if not provide me with safety equipment like boots belts…. thank you.

A: Although a Workers’ Compensation Claim is generally the exclusive remedy to recover for work related injuries, there are few exceptions where an employee can sue an employer in Civil court or an employee can sue the employer directly at the Workers Compensation Appeals Board (WCAB).

One of those situations where an employee can sue an employer directly (and the WCAB has jurisdiction to decide the matter) is when the employers act was Serious and Willful (S&W). In order to be successful with an S&W claim, the misconduct by the employer must be much more than mere negligence, or even gross or culpable negligence. It must involve conduct of a criminal nature, the intentional doing of something either with knowledge that it is likely to result in serious injury or with wanton and reckless disregard of its possible consequences.

There are 3 typical types of S&W claims; a deliberate act, failure to protect, or violation of a safety order. Your best bet is to meet with a Workers’ Compensation Lawyers who handles S&W claims and let them decide whether you have a case or not. You need to have some urgency in meeting with a Lawyer on this issue because you only have 12 months from the date of injury to file the claim.

Good luck and thank you for trusting AVVO with this important portion of your Workers’ Compensation case.

shutterstock_226713856-300x200What is Fair and Attorney Compensation

Q: When we are getting ready to settle case, how do I know if my lawyer is being fair to me? What percentage does my lawyer get for a workers compensation case? When I’m receiving workers compensation checks do I have to pay that money back?

A: Your first question is a difficult question to answer as your attorney is “your” attorney and he/she should always be fair to you. The difficult thing is deciphering what is fair and unfair. The best way to ease your mind is to have a conversation with your attorney about your concerns.

As to your second question, the typical attorney fee in a Workers’ Compensation case is 12-15%. What this means is that your attorney will take that percentage as his fee from your total award.

Lastly, if you are receiving checks during your case from the Insurance Company some of those payments may be discounted from your ultimate award and some may not. The two most typical payments made from the Insurance Company to the Injured Worker are Temporary Totally Disabled (TTD) benefits checks and Permanent Disability (PD) advancement checks.

The TTD payments are a form of wage replacement and WILL NOT be subtracted from your ultimate award. TTD benefits can be collected for 104 weeks in most cases.

PD checks are an advance on what the insurance company expects your permanent disability will be and those payments WILL be subtracted from your ultimate permanent disability award.

shutterstock_197657168-300x200Workers Compensation and Verbal Abuse

Q: I hired an attorney who became abusively angry when I didn’t agree with his opinions He used horribly foul language. This happen on three different occasions. My understanding is that the attorney worked for me. I knew the direction in which I wanted my case to go and the attorney was informed of that before I hired him, At the time of hire he made it perfectly clear that I had the final say over my case. I knew I would fire him yesterday and so I recorded the verbal abuse. I asked him to not talk to me in that way and to please respect me but he indicated that he would not change and I would just have to deal with his verbal abuse

A: Of course, your attorney works for you.

With that said your lawyer makes decisions in your case related to strategy or tactics, or technical questions related to procedure. These decisions are the lawyer’s because they usually do not “materially affect” the client’s interests. Now you do have the right to discuss with your lawyer the strategy that will be employed in pursuing objectives. However, the Model Rules state that lawyers are “not bound to press for every advantage that might be realized for a client.” Further, the ethical rules hold that if the strategic decision would not materially prejudice the rights of the client, the lawyer does not have to abide by his client’s wishes.

With that said, an open dialogue is best for the attorney-client relationship. Being that your relationship is strained, both parties need to work that much harder in order to make it work.

On another note, you need to be careful about who you record without their knowledge.

Good luck with the rest of your Workers’ Compensation Case as they are sometimes frustratingly long.

shutterstock_197347592-300x200Workers’ Compensation and Facebook

Q: Does the defense attorney and claims admin try to befriend you on Facebook. I keep getting these friend request from these recently created fb people who have no history. I have a workman compensation case. How low will they go to win?

A: The defense is trying to find evidence (surveillance) to prove their case just like you are compiling our evidence (medical) to prove our case. Be honest and you shouldn’t have any problems. If you say you can’t do something to a doctor, you shouldn’t be able to do it and thereafter publish it on Facebook, Instagram, Twitter, etc.

Good luck with the remainder of your case.

shutterstock_76153264-300x200Independent Contractor vs. Employee

Q: I am a roofer, and recently fell through the roof by an unmarked hole in the roof. I broke my pelvic bone. Do I have a case?

A: The first question I would ask is, were you employed by someone when you fell through the roof?

If you WERE than it is likely you would be entitled to treatment and some sort of recovery within the Workers’ Compensation system.

If you were NOT than your only recovery may be in civil court against the homeowner, business owner, property owner, or any other person/entity that may have an interest in the property where you fell.

Depending on your specific situation, there are other rules where you may be able to recover within the Workers’ Compensation system even if you were self-employed; however, your best bet is to meet with an experienced attorney who handles both Workers’ Compensation and Personal Injury cases.

Good luck with your recovery and finding a proper defendant!

shutterstock_123005782-300x239QME Evaluation and Resolution

Q: Is going to QME a wise decision. I herniated a disc in my low back in April 2012, had discectomy done in November 2012 all thru workers comp. I had residual chronic pain and numbness on my entire left leg. I was deemed 18 percent permanent stationary and have been working full time without restrictions. My back had recently gotten worse, the burning pain came back with a vengeance taking with it my neck. Should I go to QME before I close my case? Is that normal that WC cannot fully take you off work, I get modified duty which makes my back hurt more. What can I do?

A: I am scared to ask, are you unrepresented?

The California Workers’ Compensation system really is a great system; it is a great system because they allow the injured worker to be represented by an attorney. The insurance company has representation why shouldn’t you.

To your question, if you do not have an attorney, then your primary treating physician (PTP) is probably someone who you were referred to by the adjuster and your rating probably can’t get any worse. For this reason you probably should see a Qualified Medical Evaluator (QME).

Additionally, you say you have returned to modified duties and your condition has gotten worse, you may have a Cumulative Trauma claim subsequent to your specific injury. Alternatively, those new injuries may be a compensable consequence of your April 2012 injury. All these things are something that a good Workers’ Compensation attorney can help you with.

There is a great Workers’ Compensation attorney who will likely answer this question before or after me from Cupertino you should give him a call.

Thank you for trusting AVVO and good luck with your health and the rest of your case.

shutterstock_83391643-300x225HIPAA Release and Right to Discovery

Q: Do worker’s comp have right to ask you to sign HIPAA form for all medical records of every doctor you seen in last 10 years. My big toe nail and big toe bone were broken. What can I refuse with in my personal rights so not to have to provide my last 10 year of my medical history that is not their business? I only feel I need to give the worker’s comp people my big toe medical background. Isn’t this what HIPAA is for ? And I may have borderline osteoporosis, not sure, but can workers comp people try to blame that as cause instead of that another person at work had left this heavy wooden box unstable on the table and that box just teeter tottered and fell on my toe, breaking my nail and my toe bone.

A: Although I agree with Mr. Medford and Mr. Connell, the law may be on their side.

First, if you had an attorney, he/she would be able to help you through this frustrating invasion into your past and the contingent fee that you will pay them will come out of your ultimate award and will be well worth it.

To your question, California Code of Civil Procedure § 2017.010 provides that the information sought in discovery (1) must not be privileged, (2) must be relevant to the subject matter of the action, and (3) must either be admissible or reasonably calculated to lead to the discovery of admissible evidence.

With that as the benchmark, each doctor you may have seen in the past ten years may have mentioned something about your big toe and that is what they are in search of. Now they cannot go on an ill-advised fishing expedition, but if an argument can be made for why a particular record may be admissible or lead to admissible evidence, that record will be discoverable.

I hope this answers your question. Thank you for trusting AVVO and good luck with the rest of your case.

shutterstock_134873372-300x200Do I pay taxes on workers comp benefits?

Q: I collected workers comp pay last yr. and I need to know if I clam it on my 2014 income tax.

A: Generally, no.

However, the benefits you were receiving while on Workers’ Compensation MAY be taxable.

I refer you to two sites that should be helpful.

In addition to reviewing to two links below, your tax professional should be able to help you better answer this question.

Good luck!–is-it-included-in-your-taxable-income

shutterstock_104939294-300x225Insurance Will Not Authorize Treatment

Q: Why won’t Workers comp California pay my Dr. for the hardware inside of me or the tool to remove the hardware? Had lower back surgery 2 years ago that required my Dr to install hardware to hold my spine together until my back was properly healed. Dr. says hardware ready to come out now but W.C. never paid for the hardware and refuses to pay for the tool to remove the hardware. Dr. won’t release me or remove hardware till bill is paid. Workers comp stopped paying benefits 1 year from the date of surgery. And I can’t go back to work till hardware is removed. I’m caught in the middle.

A: In the new age of UR/IMR it is very hard to get treatment authorized once it has been properly denied. With that being said, I would have your doctor write a P&S report releasing you from care stating that in your current state, without this operation, you are 100% Permanently Totally Disabled (assuming your doctor agrees that you cannot work until you have had this operation). The doctor should state in his report that if the surgery is authorized your permanent disability level will be re-evaluated. This way the insurance company can choose between paying out a 100% award or simply giving you the surgery you need to get better. Obviously there are a ton of factors that could change how you handle your situation, so it is best to speak with a lawyer.