Posts Tagged ‘Injured Worker’

2017 Thanksgiving Reflections

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

An Appreciation…

This is the season Americans traditionally reflect on what matters to them. The same is true of my staff and me. We’re deeply grateful for the clients who have placed their trust in us and offer our sincere ‘thanks’ to each of you. We’ve worked tirelessly to provide legal expertise and emotional support to the injured—military veterans and workers alike. That’s our mission. If you or a loved-one have had your military service-related injury rejected or under valued, or suffered a job-related injury, tell us about your case. (Se habla español.) There’s never a cost for case evaluations.

Maurice L. Abarr, Esq.

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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.

Straight Talk About Workers Comp Cases & Undocumented Workers

Written by Maurice Abarr on . Posted in Workers Compensation

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The California Labor Code states that, as a matter of public policy, the legal status of an injured worker does not stop that worker from making a claim for work-related injuries and disability.

Section 3351 of the California Labor Code states:

” ‘Employee’ means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes:

(a) Aliens and minors…”

There is very real fear that someone will report injured undocumented workers, raising the risk of deportation, if the workers pursue a claim. As well-versed as I am in this segment of the law, I do not know of this happening to an injured worker who did so.

I do know, however, that persons who are undocumented continue to run the risk of deportation, irrespective of whether they make a WC claim or not. This may also be true of those who have had DACA protections. Either way, I do read case decisions showing that if the injured worker has been deported AFTER making his or her claim, after being released by the doctors, and subsequently is deported for some other reason, their case is NOT ended simply because they no longer reside in California. In fact, a recent case dealt with this by having the injured worker testify via Skype from his residence in Central America.

The Bottom Line: If you or a loved-one have serious work-related injuries and likely significant future disability, assess your priorities. Your health and well-being are certainly as important as your residency. There is little empirical evidence to show that making a Workers Compensation claim itself results in deportation. Contact us for a free case evaluation (se habla español).

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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.

Labor Day Reflections

Written by Maurice Abarr on . Posted in Workers Compensation

An Appreciation…

On this day, America honors the contribution made by its working people. The historically fraught relationship between management and labor created conditions ripe for worker exploitation. The legal protections that have since been enacted into state and federal law are there to help keep the scales of justice in balance.

If your labor has resulted in job-related injury, you deserve a fair shake. My staff and I have the specialized skills to help you. Contact us for a free case evaluation.

Maurice L. Abarr, Esq.

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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 Attorney Should Hear You

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

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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.

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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

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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.

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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

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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.

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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

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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.

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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.

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

Written by Maurice Abarr on . Posted in Workers Compensation

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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.

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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.

Death Or Injury Easier To Prove In Workers’ Compensation Cases

Written by Maurice Abarr on . Posted in Workers Compensation

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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.

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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.

PTSD & You

Written by Maurice Abarr on . Posted in Veterans Disability

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PTSD—It’s a term that veterans hear quite often. As a psychological condition, it’s commonly associated with those who have experienced the realities of combat. But diagnoses of PTSD are not limited just to service members who’ve been in combat.

So what exactly is PTSD and what’s the best way to present your claim to the VA? Let’s start by defining it and the standard that the VA uses. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is a guidebook published by the American Psychiatric Association. It catalogues recognized mental illnesses—including the symptoms of those illnesses as well as the ways to diagnose them. The DSM is currently in its fifth major edition—which is called, not surprisingly, the DSM 5. The VA relies upon it for diagnosing and determining impairment levels for PTSD (and other mental health issues). It’s important to know against what yardstick the VA measured your claim—and to assess whether your claim measures up.

PTSD, as you may already know, is an acronym for Post Traumatic Stress Disorder. In very broad terms, it refers to a person’s generally negative response, after the fact, to an event (or series of events) that threatens his/her safety. The DSM 5 lists eight indicators to assess a diagnosis of PTSD.

  1. Stressor: Was there exposure (real or threatened) to death, serious injury or sexual violence?
  2. Intrusion: Is the traumatic event persistently re-experienced?
  3. Avoidance: Is there avoidance of things that are associated with the trauma?
  4. Negative Alterations: Are there negative alterations in thought processes, mood, or both since the trauma?
  5. Alterations In Arousal/Reactivity: Are there physiological responses to the trauma? These could include (but are not limited to) things like insomnia or hyper-vigilance?
  6. Duration: Have these symptoms lasted over 30 days?
  7. Functional Significance: Do these symptoms have a “clinically significant distress or impairment” into regular aspects of life?
  8. Exclusion: Is there anything else that can explain these symptoms?

These factors are in the context of the standard three elements for a successful disability claim with the VA—a current disability, an in-service injury/stressor, and the link between the disability and the in-service stressor. If the VA has denied your claim for PTSD, their Statement of the Case (SOC) should specify exactly which part they thought was lacking and why. Was it the diagnosis itself? Was it the perceived lack of an in-service stressor? Was it a problem with the link between the two? The SOC will be your guide to an effective appeal.

The Current Disability

It’s important that you have a doctor’s report that explains a diagnosis of PTSD. In that report, the doctor who diagnoses the PTSD should fully describe why he/she feels that it’s PTSD under the criteria of the DSM 5. This can be especially important in cases where another doctor suggests that the symptoms are caused by something else.

The In-service Injury/Stressor

PTSD can result from a single event or a series of events. It’s important to identify all of the stressors in your claim as specifically as possible. In broad terms, any traumatic event or series of events that satisfy the diagnostic criteria in DMS 5 are acceptable. You still need to be clear on what that event or those events are, such as:

Combat

If the trauma you suffered was a result of experiencing combat, you’ll need to provide evidence that you actually were in combat. A DD-214 is a good start since it should have records of medals and awards you may have received, your military occupation, the units with which you had served, and the dates of that service. You provide as much specific evidence as you can about dates of specific service, units to which you were attached, events, campaigns, missions, locations, and so forth.

Non-combat

Proving a non-combat stressor is a little more challenging. Examples of non-combat stressors can include things such as experiencing a traumatic accident or serving duty with a graves registration unit. You need to provide credible evidence that the claimed in-service stressor occurred. Again, the more corroborating evidence you can provide, the better your chances of a successful claim (and, if necessary, appeal) will be. It may help to have corroborating statements from others in service with you about specific events you experienced.

Rape, Domestic Violence, Harassment, Physical or Sexual Assault

It’s an unfortunate truth that horrible things that have nothing to do with military service can still happen to service members. Your military service record may not have a specific record of this kind of stressor but you can still find corroborating evidence to support your claim. This might be in the form of a police report or emergency medical services records. Statements from fellow veterans and witnesses can also help legitimize your claim.

The Link Between The Two

This is where a doctor’s findings are crucial. It’s important that the doctor who diagnosed you with PTSD specifically state that it is “at least as likely as not” that your PTSD is the result of the traumatic event or events that you experienced while in service.

Because of the complexities involved in a PTSD claim, successfully filing a PTSD claim with the VA can be a challenge. After suffering the trauma that led you to this point, you may be facing another fight to get what you deserve. If you’ve filed your claim and had it denied, it’s a good time to consider seeking qualified help. We at The Law Offices of Maurice L. Abarr are uniquely qualified to advocate for you. Contact us for a free consultation.

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