To The Veteran Who Says “But, I didn’t know!” ~ A Call To Action

Written by Maurice Abarr on . Posted in Veterans Disability

More help from Maurice…

Having interviewed dozens of Veterans who are in the claim process (or, should be) for their Service-Connected Disability, these remarks are for those who have yet to file a claim.

It’s understandable that Veterans in the process of separation/discharge from military service “just want to get home.” Unfortunately, many miss an opportunity to initiate a claim for their Service-Connected Disability(ies). The entitlement to VA Disability Compensation usually STARTS with the date you make your claim. As time passes, you may be losing money and jeopardizing your health by not starting the compensation process by initiating a claim.

It’s IMPORTANT for you to understand that it becomes more difficult to prove a claim for disability as time passes. The greater the interval between your date of separation and the date of your claim, the more evidence is likely to be needed to connect your current disability back to your military service.

It’s most disturbing when Veterans tell me that they did not even know a claim was possible! At least once a month, I interview a Veteran who simply says, “I didn’t know I could get benefits for the disability that started with my military service. I go to the VA and I get my medications [or therapy]. But, no one told me I could get money . . .every month. . . because of my disability.”

So if you (or a Veteran you know) seem to be having difficulty living life, working, or functioning in society–and these problems started with the military experience–the message is simple: FILE A CLAIM! Get the process started NOW!

My staff and I frequently counsel Veterans who are making claims for the first time on how they need to start the process. We do this free of charge. Then, if the VA doesn’t get it right (which often happens. . .some would argue “chronically”), we have the Veteran’s back and help him/her appeal. That’s what we do and we welcome hearing from you. So, now you do know.

The Attorney Should Hear You

Written by Maurice Abarr on . Posted in Veterans Disability, Workers Compensation

More help from Maurice…

If you’re injured on the job or due to your military service, you’re already suffering physical pain, emotional distress, and may possibly be facing financial ruin. Such circumstances are likely to be amongst the most difficult you’ve ever faced. We understand. This is our field of expertise. And, we know how important it is—not to just listen—but to really hear our clients. We’ll explain the process and guide you through the various decisions that must be made. And, we’ll craft the best possible legal strategy, based on your unique case.

We’ll let clients in a recent Workers Compensation case provide some perspective…

Mr. B.: “Mr. Abarr took my case and helped guide me through the toughest time in my life. Mr. Abarr got me the best care in southern California. After being in a trucking accident where I suffered a traumatic brain injury. Maurice had my back from day one. He loves to help people and so does his staff. Maurice you are my hero! Thank you for everything.”

Mrs. B.: “Mr. Abarr helped my husband and myself throughout our case every step of the way. He is a kind, sensitive and a very knowledgeable person and lawyer! I’m very proud of the way Mr. Abarr and his staff handled our case. We couldn’t have done it without them. Best lawyer that you could ask for with a beautiful soul that really cares for his clients. He will do whatever it takes to get you the information and care that is needed for your case. He’s a very hands on lawyer that truly cares for people.”

If you’ve sustained a job or service related injury, give us an opportunity to hear you. My staff and I are ready to help. There is no charge for a case evaluation. Ever.

*****

NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

When Your Spouse Dies On The Job

Written by Maurice Abarr on . Posted in Workers Compensation

More help from Maurice…

Your spouse has died in a work-related tragedy. The grief is deep and the tasks seem overwhelming. The unfortunate truth is that such death benefit claims are often won—and lost—based upon indirect or circumstantial evidence. Few survivors are emotionally prepared to seek legal advice or contemplate litigation. However, the passage of time is almost never an ally in such cases and delay can cause complications in any case one decides to pursue. The sooner a lawyer specializing in Workers Compensation cases is contacted, the sooner an investigation and the discovery process can commence. A qualified attorney will begin capturing and documenting the available circumstantial evidence related to the time and place of death while its fresh. We at The Law Offices of Maurice L. Abarr understand the issues and challenges faced by survivors. You’ve suffered grievous loss. My staff and I are at your disposal. There is no charge for a case evaluation and we will do our very best to protect your interests as we help you through the process.

*****

NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

Workers Can’t Be “On Call” During Breaks—California Supreme Court

Written by Maurice Abarr on . Posted in Workers Compensation

More help from Maurice…

According to the Associated Press (23rd December 2016), the California Supreme Court has ruled that workers in California cannot be required by their employers to be “available” or “on-call” during their short rest breaks and that employers must give up any control over how employees spend that time.

The ruling came in a lawsuit by security guards for ABM Security Services Inc. The high court said the firm’s policy of requiring guards to keep their radios on and respond to needs, such as escorting a tenant to the parking lot during rest periods, violates state law.

In the ruling, joined by 4 of the 7 members of the court, Associate Justice Mariano-Florentino Cuellar acknowledged the problem, writing, “An employee on call cannot take a brief walk — five minutes out, five minutes back — if at the farthest extent of the walk he or she is not in a position to respond.” … “Employees similarly cannot use their 10 minutes to take care of other personal matters that require truly uninterrupted time — like pumping breast milk or completing a phone call to arrange child care.”

The bottom line: If your employer requires you to be “available” for company business during your rest breaks, this is no longer legal in California. If you experience such treatment, contact us for help with this issue.

*****

NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

Filing A Workers Compensation Claim Without Fear Of Retaliation

Written by Maurice Abarr on . Posted in Workers Compensation

More Help From Maurice…

This is an all too common problem:

“I got injured at work, but do not want to file a Workers Compensation claim because I’m afraid I will lose my job, or that my employer will treat me badly.”

There is always a risk of a work-related injury if you are employed. For that reason, employers in California are required by law to provide Workers Compensation insurance for their employees. Thus, if you get injured at work—or acquire an illness that can be attributed to your work—your employer is required to inform you of their Workers Compensation insurance carrier, provide you with a claim form, and pay for your medical treatment.

Workers Compensation ensures that an injured worker receives some form of wage replacement while receiving medical care for their work-related injury. In order to qualify for that benefit—called “Temporary Disability”—you must be continuously off work, declared “temporarily totally disabled,” and engaged in active treatment. Ordinarily, you are not entitled to this benefit for simple medical appointments.

The Workers Compensation system has developed a reputation—some of it good, some of it not so good. The “good” is that Workers Compensation is a specialized area of law that provides for injured workers only. It allows injured workers to seek the proper medical care to recover after an injury, without relying on their private insurance carrier. The “not so good,” is that frivolous claims do happen – which leads to negative impression by employers. Such claims (and the perception created by them) are the primary reason that Workers Compensation may be viewed negatively or met with skepticism by employers. This contributes to the hostility some employers may have towards an employee who files for such benefits.

Most employers, however, understand the risks involved in performing certain duties at work, whether it’s carrying heavy loads, excessive typing, or repetitive bending. There is always a possibility that, with a wrong move or repetitive motions over time, an injury will arise. If you continue to work, knowing you’ve sustained an injury and don’t seek the proper treatment, you may compound your injury until you are unable to work at all. Thus, injured workers should not refrain from filing a Workers Compensation claim out of fear. Though there have been situations where an employer has fired an employee for filing a Workers Compensation claim, or been treated a hostile manner by the employer, these situations can sometimes be corrected with prompt and appropriate action by the employee.

At-will Employment & Your Disability

Most workers have “at-will” employment. This means that an employer may fire an employee with or without just cause. In other words, no reason or warning is required to justify the termination of employment. However, an employer may not fire you because of your disability. Most employers must comply with the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA), which prohibit them from discriminating against workers due to their disabilities.

You and your employer will become aware of any disabilities you may have after you receive diagnosis and treatment from a physician. Typically, an injured worker will be treated by a Primary Treating Physician (PTP) within the Workers Compensation system, known as the Medical Provider Network (MPN). Generally, the PTP will write a report that lists any physical limitations, known as “modified duties” or “restrictions,” you may have. Upon notification of these restrictions, your employer is required to make a good-faith effort to reasonably accommodate these modified duties.

However, not all employers may be able to accommodate such modified duties. Your only option will be to seek other work or cease working. In these situations, the employer would not be violating the law for “letting you go,” since they just can’t accommodate your restrictions.

Wrongful Termination & Your Disability

If it’s obvious that your employer fired you solely because of your work-related injury—or for filing a Workers Compensation claim—you should definitely consult an attorney. A different legal issue is at stake—wrongful termination. It is generally illegal for an employer to fire or punish you for exercising your rights to receive Workers Compensation for a work-related injury. If this occurs, the employee must prove* that he or she was fired as a form of retaliation for filing the claim. Thus, if you feel that you are facing a situation like this, you must inform your attorney as soon as possible. He or she may choose to take action on your behalf or refer you to a specialist in Employment Law.

*Note: Proving that the termination was substantially due to the exercise of your rights as an injured worker can be difficult. Each case must be assessed by a qualified attorney based on the facts accompanying it.

If your injury is indeed work-related and has been accepted by the insurance carrier, there should be no hostility between you and your employer—you are not suing your employer when you file for Workers Compensation. You are merely seeking the benefits afforded to you by law and from an insurance policy your employer pays for.

Thus, filing for Workers Compensation should not be feared—it should be exercised in order to help you return to work quickly. We at The Law Offices of Maurice L. Abarr are uniquely well qualified to advocate for you and protect your rights. Contact us today for a free consultation.

*****

NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

Veterans Can Hire DVA-Certified Attorneys WITHOUT Upfront Money

Written by Maurice Abarr on . Posted in Veterans Disability

More Help From Maurice…

A common fallacy Veterans have when contemplating acquiring an attorney to appeal a DVA decision is that there will be an upfront or “out of pocket” expense. Depending on the attorney, it’s possible for there to be NO such cost. Certain attorneys—including ourselves—are willing to work on a “contingency-fee basis.” This arrangement is similar to the way lawyers are paid in Workers’ Compensation and Personal Injury cases.

This means you must be awarded retroactive compensation benefits—AFTER the attorney is hired—BEFORE the attorney receives a fee. Conversely, if you receive no retroactive award of benefits, you owe the attorney nothing.

The changes in the law that Congress approved in 2007 provided, among other things, that:

  1. Attorneys who became certified with the DVA could appear at earlier stages of a Veteran’s appeal of a DVA decision.
  2. The VA would withhold as an attorney fee 20% of any retroactive benefits awarded after the Veteran hired an attorney who was authorized to appear before the Regional Office or Board of Veterans Appeals.

Of course, you are free to negotiate a different payment percentage. However, if you and your attorney agree on a percentage greater than 20%, your attorney is entitled to collect the fee from you at the time the retroactive benefits check is received. If the likely overall recovery is projected as modest, the attorney may request more than a 20% fee in order to justify the amount of time (and overhead expense) that will be incurred during the time the case is being worked on. The norm in such instances is one-third (33 1/3%) of the award.

This is a good arrangement for Veterans because you are not forced to dip into your own possibly limited funds in order to proceed with your appeal. The right attorney will share with you both the risks inherent in any litigation, as well as the benefits.

How To Proceed

If you would like a free consultation with our office, please contact Maria at Extension 5 and she will get you started in our intake process. We usually need the entire C File (claim file) from the VA before we can commit on a case. Our intake process begins with some questionnaires which we will need completed. We will also send you a FOIA (Freedom of Information Act) Letter for you to review, sign, and send by Certified Mail/Return Receipt Requested to your Regional VA Office.

We at the Law Offices of Maurice L. Abarr are authorized and uniquely qualified to address your Veterans Disability issues. We look forward to serving you.

Veterans Survivors’ Benefits & You

Written by Maurice Abarr on . Posted in Veterans Disability

More Help From Maurice…

None of us can escape mortality. This is certainly true of veterans. While nothing will never make up for this loss, there are certain benefits that are available to survivors of veterans who have died.

Retroactive Disability Compensation Benefits

If a veteran passes away while a claim for disability compensation benefits is pending before the VA, the claim does not have to die with the veteran. While the surviving spouse or children would not be eligible for future disability benefits (if the claim is ultimately approved), the surviving they may apply to receive the past-due benefits. This could turn out to be a significant sum, depending upon how the VA ultimately rates the level of disability and how far back the VA determines the disability started (i.e., the “effective date” of the disability). These accrued benefits are not available to all survivors; survivors must meet certain eligibility requirements. The same is true for the next form of compensation.

Dependency and Indemnity Compensation

Another way surviving dependents may receive compensation is through Dependency and Indemnity Compensation (DIC). This is a monthly benefit paid to survivors of deceased veterans. There are requirements for eligibility for DIC benefits. The veteran must have died:

  • While on active duty OR
  • From a service related injury or disease OR
  • While receiving disability for a totally disabling condition for:
    • At least 10 years before death OR
    • Since the veteran’s discharge AND for at least five years prior to death OR
    • At least one year prior to death if the veteran was a former POW.

Additionally, there are requirements for the survivors. A surviving spouse must have:

  • Married the veteran at least one year before the veteran’s death OR
  • Married a veteran who died from a service-connected disability, if the marriage was within 15 years of discharge from the period of service that caused the disability OR
  • Married a veteran and had a child with the veteran, OR
  • Married a service member who died while on active duty.

Also, generally speaking, the surviving spouse must have lived with the veteran and must not have remarried after the veteran’s death. And a surviving child may be eligible for DIC if the child isn’t part of the surviving spouse’s DIC, is unmarried and is under 18 (there are exceptions to this).

The list of requirements is actually even more complicated and this blog just touches on the basics. These are complicated rules, conditions and, as usual, many potential exceptions which can work to your advantage OR work against you. It would be to your advantage to seek qualified help if you’re not sure if either of these benefits apply to you. And, if you apply for DIC or accrued benefits and receive a denial letter from the VA, as with other VA decisions, you have the right to appeal the denial.

We at The Law Offices of Maurice L. Abarr are uniquely qualified to assist you with all manner of veterans’ benefits issues. Contact us for a free consultation.

Dear Doctor: Submitting another Request For Authorization is NOT the Answer!

Written by Maurice Abarr on . Posted in Workers Compensation

More help from Maurice… 

One of the most frustrating things that can happen during the course of medical treatment for a work-related injury is when a course of treatment your doctor recommends (surgery, prescription, etc.) gets denied by Utilization Review (UR). That’s the system used by compensation claims administrators to decide whether that recommendation is medically necessary.

Unfortunately, too many doctors (accustomed to the older system) think they can simply issue another Request For Authorization (RFA) for the same treatment when UR denies a request. The reality under the new law is somewhat bleak: Once a denial has been made, it remains in effect for twelve months. Resubmitting an RFA at that point is an exercise in futility. The only recourse after a UR denial is to request an Independent Medical Review (IMR) within thirty (30) days of the UR decision.

More bad news: The statistics coming out of IMR suggest that the UR decision is upheld by IMR about 90% of the time. Under these circumstances, it’s understandable to question even bothering with the whole process. The answer is in understanding how to increase the probability that the UR denial will be overturned by the IMR—i.e., how to increase the likelihood that the requested treatment will be authorized by IMR overturning the UR denial.

According to regulatory law, IMR is supposed to get copies from the claims administrator of all medical reports relevant to the injured worker’s current medical condition produced within six months prior to the date of the RFA. There are two parts of that long sentence that are important:

  • First, “from the claims administrator.” That means that the parties least motivated to get treatment approved are a primary source of information for the final decision makers. They’re not likely to provide any more information than they did to their own UR—which denied the treatment in the first place.
  • Second, the word “relevant.” There’s scant guidance on what is relevant—or at least that’s what the claims administrators will say.

With IMR having difficulty getting medical records on which to base their decisions—plus an increasing load of cases coupled with a commensurate increase in pressure to close cases—it’s small wonder that IMR ends up rubber stamping the UR denials more than 90% of the time.

So what’s the best way for your case to end up being one of the 10% that’s overturned?

  • The first step is not to rely on the carrier being the sole source of information for IMR. The law allows for the injured worker to submit medical records relevant to the situation. Certainly, the injured worker or injured worker’s attorney is going to be highly motivated to make sure that relevant information gets in front of IMR. From the time a case is assigned to IMR, an injured worker has 15 days to submit those records—so having them ready to go is always a good idea.
  • The second way to increase the injured worker’s “odds” of being in 10% of the decisions that are overturned—meaning the treatment is authorized—is to stay on top of all IMR paperwork. IMR has a huge backlog so they’re motivated to close cases. Towards that end, they will issue an IMR Confirmation Form. This requires the injured worker to return the form within 15 days, essentially saying, “Yes, I want to continue with the IMR process.” Otherwise, IMR assumes that the case has been dropped and simply upholds the UR denial. If you’re working with an attorney, don’t assume that because you’ve received an IMR Confirmation Form that your attorney did as well. Make sure you and your attorney are on the same page at all times and that you don’t miss critical short deadlines like this. When you receive any document from IMR, contact your attorney’s office at once and make sure they received a copy also.

So what’s the good news? In cases where the injured worker or attorney submits their own medical information and stays on top of the paperwork, the rate of UR decisions being overturned can double or even triple. While actual outcomes will always depend on the type of recommendation and the specific case facts, the best possible outcomes come from aggressively and affirmatively pursuing your case. We at the Law Offices of Maurice L. Abarr are uniquely qualified to guide you through this maze. Contact us for a free consultation.

*****

NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

The Stigma Of PTSD

Written by Maurice Abarr on . Posted in Veterans Disability

More help from Maurice…

One of the realities of combat experience is that veterans can suffer from a range of stress reactions—including post-traumatic stress disorder (PTSD). Fortunately, there is a system in place to help these veterans. Unfortunately, some veterans aren’t seeking the help that’s available to them. This may be due to a perception of stigma that’s attached to it. There are many misconceptions and myths about PTSD. We’re going to address some of the key ones here.

  • Some veterans move into civilian jobs that require a security background check and it’s a common perception that a diagnosis of PTSD will negatively impact them. While not all background checks are the same, generally speaking, a diagnosis of PTSD does not automatically threaten a veteran’s security clearance. Even the Department of Defense’s standards allow for service members with a PTSD diagnosis—who are in treatment for it—to maintain their clearance. In fact, security clearance refusal is more likely to happen because of the behaviors associated with UNTREATED PTSD—including not meeting financial obligations or self-medicating with alcohol or illicit drugs.
  • Other veterans fear they’ll never recover from PTSD. The truth is that with appropriate therapies and, in some cases, medications, the manifestations of PTSD can be greatly reduced or even eliminated. The tools provided through therapy can help veterans develop effective coping mechanisms that they would not otherwise have.
  • Perhaps the most pervasive misconception about PTSD that prevents veterans from seeking help is that it’s a sign of some sort of character flaw. All service members—especially those who have experienced combat—have it ingrained in them to just “suck it up.” While that may be appropriate on the battlefield, it’s not the best response in dealing with nightmares that follow you home. Stress reactions are not a sign of weakness; they’re a normal reaction to an abnormal situation. Knowing when to ask for help is actually a sign of strength and wisdom.

PTSD is treatable and reaching out early typically leads to the best outcomes. The bottom line is that if you’re a veteran in crisis who’s suffering from a delayed stress reaction resulting from your military experience, then you should seek the help you need. Platitudes common during military service such as “drive on” should be applied to how you approach your treatment—not to dealing with the problem on your own.

If you have filed a claim for PTSD (or other mental/emotional/behavioral impairments) and wish to challenge the VA’s assessment of the cause or percentage of your current disability, we at the Law Offices of Maurice L. Abarr are here to help you. It’s what we do. Contact us for a free case evaluation.

Death Or Injury Easier To Prove In Workers’ Compensation Cases

Written by Maurice Abarr on . Posted in Workers Compensation

More help from Maurice…

The Supreme Court of California recently decided South Coast Framing Inc. v WCAB—an important case in workers’ compensation law. The decision clarifies how evidence should be weighed in workers’ compensation cases.

A carpenter working for South Coast Framing suffered neck and back injuries and a concussion while on the job. He was prescribed medications by both his Workers’ Compensation doctor and his personal physician—and tragically died of an accidental overdose. His family sought death benefits through the Workers’ Compensation system and a Workers’ Compensation Judge granted those death benefits. The Court of Appeal reversed that decision. Ultimately, the Supreme Court of California reversed that decision and reinstated the death benefit award.

While the medical evidence found that it was primarily because of the drugs prescribed by his personal physician, the medical expert conceded that at least one of the medications from the Workers’ Compensation doctor contributed to the overdose. Additionally, the medications prescribed by the personal physician were to help with sleep problems the deceased worker had started suffering since the work accident. The Workers’ Compensation Judge ruled, therefore, that the fatal overdose was tied to the work accident.

The Court of Appeal, on the other hand, ruled that there was a lack of evidence to support this finding. The issue is in the language of the actual Labor Code and that there are different standards of causation in workers’ compensation than in tort (personal injury) law. The Court of Appeal was using a standard more applicable to a suit brought in civil court—in that the impact of the medications from the workers’ compensation doctor were not “significant” enough to prove causation.

In its overturn, the California Supreme Court correctly pointed out that, because of the way the state’s labor code is written, the Court of Appeal applied the wrong standard for a death case. In the Workers’ Compensation system, it is sufficient to prove that employment is a contributing cause to the death—not the amount of the contribution. Furthermore, the Supreme Court ruled that a Workers’ Compensation Judge’s findings of fact are not subject to appellate review at all if the findings are supported by the totality of the evidence and of the record; the Court of Appeal is “not free to reweigh the evidence or substitute an inapplicable standard of review.”

The end result of all of this is that it helps clarify what the standard of causation is in a workers’ compensation cases. Although the decision specifically dealt with a family seeking death benefits for an injured worker, the clarified standards should help any worker trying to establish that an injury or illness is work related.

If you have a Workers’ Compensation legal issue, we at The Law Offices Of Maurice L. Abarr are uniquely qualified to assist you. Contact us for a free consultation.

*****

NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

About Maurice
The Importance of "Story"
Why Maurice
A Personal Commitment
Workers Compensation - English
Workers Compensation - Spanish