Posts Tagged ‘Personal Injury’

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.

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

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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.

Veterans Administration’s Duty To Assist

Written by Maurice Abarr on . Posted in Veterans Disability

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Dealing with the VA to make a claim for your veteran’s disability benefits can often feel like an adversarial process from the moment you get started. After all, you feel you’re due a benefit and you have to go through a long and complicated process to get to it.

Though many don’t realize it, it’s actually the VA’s responsibility to assist you in filing disability claims. In 2000, Congress passed the Veterans Claims Assistant Act. This requires the VA to help veterans file their disability claims. This is a unique requirement among federal agencies that have application processes for benefits.

So what does this really mean and what does the VA have to do? The rules under which the VA operates cover a wide range of duties. They include:

  1. Notifying a veteran of what’s needed to complete an application.
  2. Considering all possible claims.
  3. Helping to gather evidence.

If you submit an incomplete application, the VA cannot use that as a reason to deny benefits to you. It’s the VA’s responsibility to tell you what’s needed. For instance, if your application is missing evidence of the in-service event that is the cause of the current disability, then it is the duty of the VA to inform you how to complete the application with evidence relating to that event.

In other bureaucratic agencies, something as simple as a forgotten signature can kill an entire application—forcing an applicant to start from scratch, if they’re allowed to re-apply at all. But for veterans, it’s the VA’s duty to make sure that you have been given a reasonable opportunity to complete your application.

It’s even the VA’s duty to consider disabilities that you may not have specifically claimed. For example, if a veteran doesn’t make a claim for hearing loss but a medical record suggests hearing problems and a service record suggest prolonged exposure to loud noises during service, then the VA is duty-bound to consider whether an additional claim for hearing loss should be considered.

If there’s something specific that the VA needs in order to approve your application for disability benefits—for example, medical evidence to prove a service connected disability (in addition to what you’ve already submitted)—then the VA is obligated to let you know what records are required. In addition, the VA is duty-bound to assist in gathering that evidence.

The requirements for assistance aren’t absolute, of course. For instance, while the VA’s responsibilities would include obtaining relevant records from any federal agency, you are still responsible for obtaining private medical records or records from state or local governments. Furthermore, you would need to provide enough information to help the VA facilitate getting such federal records.

Another example of how the requirement for assistance isn’t absolute concerns medical exams. Veterans are entitled to medical examinations provided by the VA to help substantiate a claim. But the VA cannot compel you to participate in such an exam—that’s your responsibility. It’s important to remember that not showing up for such medical examinations will count against your application.

If the VA fails to meet any of its duties in assisting you in filing your claim—and your claim is denied—you may have grounds for an appeal. Because the duties of the VA cover so many areas and because the requirements, as well as the limits of those duties can get complicated, it’s a good idea to consult with a qualified attorney to see if the VA missed any of its obligations in your claim. We at The Law Offices of Maurice L. Abarr are uniquely qualified to assist you. Contact us for a free and confidential consultation.

The Second “Fiscal Cliff” in Workers’ Compensation Claims (Part II)

Written by Maurice Abarr on . Posted in Workers Compensation

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(Scroll down to see Part I posted 28th February 2013)

DISCLAIMER: We are not professional, licensed, or certified financial planners.

However, we sometimes feel as though we’re serving in such a role with clients who have a permanent disability that’s either going to preclude their return to the work they were doing when they were injured (Partial Permanent Disability) or are unlikely to ever return to work in any capacity (Total Permanent Disability). We have discussed the first abrupt change in the flow of monetary benefits in Part I of this topic when the Temporary Total Disability (TTD) benefits have stopped. Ordinarily, the TTD benefits stop about two (2) to three (3) years after the date of injury.

As I explained in Part I, some of the interruption in the financial life of our clients can be overcome by applying for State Disability Insurance (SDI) benefits within the first 18 to 24 months after the date of injury. When you are opening an SDI claim while still receiving TTD benefits, you will not be receiving SDI benefits until the TTD benefits stop. Then, you “re-open” the SDI claim you started several months before and start the flow of SDI benefits (which are frequently about the same amount as you were receiving in TTD benefits).

However, SDI benefits will only be paid at the full rate for up to one (1) year. So this benefit, too, will eventually come to an end. That end is what makes for the “Second Fiscal Cliff” in your Workers’ Compensation claim. This is where things get really tough. So, it takes some pro-active planning to reduce the impact.

WHAT TO DO? First of all, when your TTD benefits are about to run out, or you have just gotten your last TTD check and you are waiting to start receiving your SDI benefits (ASSUMING you and your employer have paid into this fund long enough for you to qualify for benefits), you have to ask yourself some fundamental questions:

  • Am I ever going to be able to go back to doing the work I did before?
  • How do I see my physical and mental recovery progressing?
  • Am I getting better, getting worse, staying the same?

If the future looks dark or uncertain — and you do not hold out much hope that you will be able to return to the kind of work you’ve done in your past working life (not necessarily just kind of work you were doing when you were injured), we need to pose an important question:

  • Are you able to learn a new skill in a relatively short period of time (usually between 10 weeks and, at maximum, 6 months) that is likely to equip you for new employment in the open labor market?

If you don’t perceive yourself capable of learning new job skills (or enhancing ones you have from previous work experience) so that you will again be employable, your best option is to apply as soon as possible for Social Security Disability Insurance (SSDI). You must have worked at least 20 quarters (i.e., 5 years) within the past 40 quarters (i.e., 10 years) to qualify for SSDI.

Note: If you do not qualify for SSDI, you may qualify for Supplemental Security Income which has its own separate qualifications and problems. We will discuss SSI more fully in another blog.

It usually takes between 6 to 18 months from the date you apply for SSDI benefits to get benefits coming to you. This assumes, of course, that your application is eventually approved or granted by a Social Security Judge.

Note: As mentioned above, while we do not represent clients in their application for SSDI benefits, we can refer you to specialists who handle these cases. Additionally, we can help with your application and claim process by providing medical evidence supportive of your claim.

Because it can sometimes take more than a year to get SSDI benefits coming to you (depending upon how far we have to go with your claim to get you the maximum results from the Social Security Administration). We counsel our clients to apply early for SSDI. The end objective is simple: Keep enough benefits flowing to you to keep you at as high a level of living as is possible under the circumstances.

As you can see, the first benefits are usually TTD. But, they will run out in 2 years or so. So, assuming you have are qualified and opened your SDI (State Disability) claim within the first 2 years after your date of injury, you will receive SDI for around a year after the TTD stops (assuming you have a doctor who will continue to certify you for those benefits — something most of the doctors we recommend will help you with).

Then, assuming you have qualified and started your SSDI (Social Security) claim either before or when your TTD benefits have stopped, it’s likely you will start receiving SSDI benefits before State Disability runs out.

This is the plan of action we’ve followed in many cases. And, it’s worked out successfully for our clients. The “Second Fiscal Cliff” was huge disruption in their financial life and they were able to transition through the changes in benefits without becoming destitute. It may not be a perfect solution, but it’s the best that can be done when the injury and following disability remove you from the work force.

THEN WHAT? We will either go to trial and seek the highest award we can get for you, or we will negotiate a settlement that is the best we believe is achievable under the circumstances. The final award or settlement is usually the best news we’re able to provide for our clients after (frequently) protracted litigation and battles over medical care and benefits. Sometimes, we are able to do this before you have reached the doorway to SSDI. But, in the more serious cases, this is frequently the course the case takes. SSDI is a Godsend and a lifesaver for those who find themselves at the end of their work life earlier than planned.

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.

PQMEs ARE A BIG DEAL

Written by Maurice Abarr on . Posted in Workers Compensation

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Why the PQME (Panel Qualified Medical Evaluator) is so important to your Workers’ Compensation case

When you get hurt on the job, sooner or later (usually sooner), the Claims Administrator on your case (i.e., the insurance company’s representative) says something to the effect of, “We disagree with what is going on with your treating doctor” or, “We deny your claim and you have to go see a PQME (panel qualified medical evaluator).”

I frequently meet people in my office who are at one of these steps with the PQME:

1. They just received “the package” of paperwork from the Claims Administrator which includes their disagreement with their treating doctor–or the denial of their claim. (In the package is also a form for requesting a PQME.)

2. They have received the package, filled out the form, and sent it in.

3. They did all of the above and now have the list of 3 doctors and must choose one within 10 days or the insurance company will impose one on them.

4. They have chosen 1 of the three doctors on the Panel List but have not seen the physician yet.

5. They have seen the PQME but have not received the report yet.

We can help you at anyone of these steps. But, the earlier in the process at which we see you, the more we can do to assist you with your claim.

At Step 1
It is important to identify the best choice of medical specialty for the PQME. For example, if your treating doctor is recommending pain management and the insurance carrier disagrees–thereby triggering the need for a PQME–then you might be better served by requesting a Panel of Pain Management doctors, instead of Orthopedic specialists.

At Step 2
If more than 30 days have passed, the Medical Unit (MU) probably has not received your request for a Panel of QME doctors. So, a courtesy call to the MU would be in order.

At Step 3
Choosing which one of these doctors would best serve your needs. (NOTE: This is one of the more crucial stages of this process.) This is where you can lose considerable advantage by making the wrong choice. You need to know the doctors working in the system. Some have preferences and dislikes that affect their opinions.

At Step 4
If you have already chosen one of the doctors–and may have made a poor choice–but have not seen him/her yet, there is still a way we can help you.

At Step 5
If you have seen the doctor and you feel (or we think it probable) that the doctor is not going to write a supportive report–and it has been 35 days since the date of your visit with him/her–we can help mitigate the consequences of that report.

So, don’t delay in contacting us. PQMEs truly are a big deal.

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.

WHAT HAPPENS TO THE INJURED WORKER AFTER GETTING AN AWARD OR SETTLEMENT?

Written by Maurice Abarr on . Posted in Workers Compensation

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Actually, it might just as easily be called, “Where Has All the Vocational Rehabilitation Gone?” Or, better still, “JOB VOUCHERS: The Remnants of What Was Once Called ‘Vocational Rehabilitation.’”

The Ever-shrinking Benefit
Between the late ‘70s and the early ‘90s, we had true vocational rehabilitation in California. Then, a perception began to be fostered that it was “too expensive” for employers (and their insurance carriers) so, of course, it was touted as being “abused.” (I will try to temper my sarcasm but, after all, I have represented injured workers for more than 30 years.)

In 1993, the Legislature imposed a monetary limit of $16,000 on an individual vocational rehabilitation program–even though the average cost of a rehabilitation program before 1993 was around $40,000. Predictably, $16,000 was not enough to finance any meaningful vocational rehabilitation for the average injured worker. So, everyone started “settling VR”–i.e., they took the cash and went without any vocational rehabilitation.

Note: Occasionally the carriers would pay the full $16,000 to settle the benefit but, as time went by, they exercised the Golden Rule (“the one who has the gold…rules”) and started discounting the value down to around 50 cents on the dollar (i.e., $8,000). Some carriers were heard to settle it for as little as $2,000.

The next “reform” to vocational rehabilitation arrived in 2003. It essentially eliminated even the appearance of providing vocational rehabilitation with the institution of Supplemental Job Displacement Benefits–what is commonly referred to as a “Job Voucher.” It’s called this because the benefit is a nontransferable voucher for education-related retraining or skill enhancement (or both) at a state-approved or accredited school. All of this may sound good, but it has very little to do with getting a new job. Moreover, this benefit is only available to workers whose injuries occurred after January 1, 2004, who also did not return to work for the employer within 60 days after the Temporary Disability (TD) terminated, and whose employer did not offer a job which accommodated the worker’s limitations within 30 days of termination of TD benefits. Got all that?

Simply put, a Job Voucher would guarantee payment of a certain amount of money towards education and training of the Injured Worker–the amount being dependent upon the percentage of Permanent Partial Disability (PPD) he or she had. For instance, a PPD of 14% would entitle the Injured Worker to a job voucher which would pay up to $4,000 towards tuition and retraining costs (presuming the other conditions have been met). If the PPD was between 15% and 25%, the dollar amount of the job voucher would be $6,000. If it was between 26% and 49% it would be $8,000. If the PPD was between 50% and 99%, it would be $10,000.

Consider the plight of the injured worker who was injured before January 1, 2004 who had multiple surgeries and a protracted period of Temporary Disability and, yes, was paid TD benefits for all those years (TD benefits were limited to last only 2 years, starting with dates of injury on April 1, 2004 and later). So, does the worker get Vocational Rehabilitation because the date of injury was prior to January 1, 2004? No! The law awarding that benefit was repealed, effective January 1, 2009. Worse, the worker gets no Job Voucher either because his date of injury precedes the effective date for that benefit. Sweet, huh?

The Road Narrows Even Further
Effective January 1, 2013, if you are the injured worker and your date of injury was after January 1, 2004…and you have not returned to work for the same employer within 60 days after termination of your TD benefits…and your employer has not made you a job offer which accommodates your limitations within 30 days of the date of the termination of your TD benefits, you may now be entitled to a Job Voucher with a value of $6,000. And, it doesn’t matter what your level of PPD is. If you are 10% and otherwise qualify, it could be said that you’ve come out “ahead” (compared to the $4,000 job voucher you would have received before). But, if you are 60% disabled, you will get the same $4,000 voucher.

Use It Or Lose It
Another limitation imposed as of January 1, 2013: Injured Workers must use it within two (2) years from date it is issued or five (5) years from the date of injury, whichever is later. One more thing–you cannot settle the Job Voucher and simply take the money and invest it elsewhere (like groceries and rent) while you attend community college classes.

Perhaps this will help enable you to better chart your course.

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.

ANOTHER “NEW WORLD” OF WORKERS’ COMPENSATION

Written by Maurice Abarr on . Posted in Workers Compensation

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Senate Bill 863 [SB 863] was rushed through the legislative process in about 3 days during the end of August, 2012. In September, Governor Jerry Brown approved it. This new body of legislation will have impact (some negative, some positive) on all pending cases that have not been resolved by December 31, 2012. The new laws will likewise impact new cases with Date of Injury on or after January 1, 2013.

The Good News
Overall, the Permanent Disability for Date of Injury on or after 1-1-13 will increase. Looking at all possible effect upon the range of all cases, the average increase will be around 30%.

The So-So News
As of 1-1-13 (for cases with that date of injury or later) all disputes regarding Medical Treatment will be submitted to “independent” doctors to resolve promptly (i.e., within 30 days from date they receive dispute). This process will be called Independent Medical Review (IMR). We will not learn the identity of the doctor reviewing a particular dispute. We will have to wait and see exactly how “promptly” and FAIRLY these doctors resolve medical treatment issues. It could be a good thing…getting issues resolved much quicker than the current Panel QME process (which frequently takes 6 months or longer to be resolved). The IMR process will also apply to all cases as of 7-1-13.

The Bad News
Most claims for psychiatric, sleep or sexual-dysfunction disorders that source from a physical injury (i.e., your back is hurt, you have chronic pain, and you develop depression with the chronic pain), can no longer be compensated in Permanent Disability benefits. You can be treated for these symptoms—provided, however, that the IMR doctor (see above) approves it when the carrier refuses to provide the treatment.

Regulations implementing these new laws are currently in process. They are likely to tweak and clarify some of the new laws.

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.

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