Posted by: Nick Poma | July 17, 2008

California Workman’s Compensation – What You Need to Know

            It seems that all too often we never really consider the importance of a cause until it has affected us in a negative manner. Such examples might include Christopher Reeve, who suffered spine damage after a fall from a horse. Reeve wound up being paralyzed from the neck down and this eventually led to his death. However, after being paralyzed Reeve went on to champion the cause of spinal injury research and even threw his hat into the ring for stem cell research, which does show some promise at regenerating damaged tissue and organs.


            Then there is the actor Michael J. Fox who was diagnosed with a severe case of Parkinson’s disease. This disease affects the central nervous system and is recognized by the patient having uncontrollable shaking. It was not until Fox’s diagnosis was made public that he actually joined into the stem cell debate and even testified before Congress on the matter. Much in the same way many people do not realize the difficulties of going through the Workman’s Comp system until they are thrust into it due to a life-changing injury.


            I am one of those individuals that considered most people on Workman’s Comp to be defrauding the system. I can say now that I feel like a jerk for generalizing people that way and perhaps I am receiving my just rewards. However, until you walk a mile in another man’s shoes, you cannot truly appreciate his troubles. Others may have found their experience to be simple, or at least with little discomfort, I can say with certainty that my experience has been at the extreme other side of the spectrum. So, in order to help others deal with the Workman’s Comp system I have decided to share what knowledge I have in order to inform you of what to expect.


            Early in Governor Schwarzenegger’s first term he imposed some changes to the Workman’s Comp system. At the time many companies were relocating out of California in favor of states that did not charge so much for insurance. Disability fraud was running rampant and the corporations were the ones paying the price in higher premiums. So the system was overhauled, but unfortunately, the pendulum swung too far the other way and now the system is tipped highly in favor of the insurance companies. This is to the detriment of those workers that in fact, do have true medical disabilities that occurred while on the job.


            In most cases an injury which occurs while on the job is in general superficial. Most injuries include, cuts, sprains, or even pulled muscles requiring no more than some stitches or rest. Then there are the more severe injuries which include torn muscles, broken bones, ripped flesh, third degree burns, and torn ligaments, degeneration of joints through repetitive motion and heavy lifting, and even Carpal Tunnel Syndrome. These are just a few of the severe injuries that may require surgeries, and extensive physical therapy.


            It is important to realize that deep tissue tears and joint problems can be easily misdiagnosed as sprains, pulls, and bruised bones. In my case, a back injury in that occurred in 2004 was diagnosed as a sprain, even though it had become a recurring problem. It was only learned during my latest injury through MRIs that indeed, I had herniated a disk. My most recent injury was a torn rotator cuff, which was a full thickness tear of the Supraspinatus tendon and two herniated disk to my neck. Unfortunately, after two years of treatment it has been learned that they have missed a partial dislocation which will require an additional surgery and pins to be installed into my shoulder socket. It is not uncommon for doctors to miss such things because they actually rely on the radiologists to read the MRIs and then provide a report with an interpretation of what was found.


            I know this only because I was referred to an orthopedic surgeon and while he was trying to impress me with his medical expertise by reading the MRIs in front of me, he managed to misdiagnose me with a sprain and tendonitis. Needless to say, I ran from that doctor as soon as possible. This just goes to show you how mistakes can be made and it is possible that you will suffer more than is necessary through no fault of your own.


            While still going through my ordeal, I have come up with a couple of rules for dealing with this Workman’s Comp system. After an injury has been reported, the company is no longer who you are dealing with. You are now dealing with the company’s insurance carrier. The insurance company is going to try and get off as cheap as possible and this is even if it is detrimental to you. The insurance adjuster that you will be dealing with will be sweet as pie and it will seem as though they are doing everything in their power to get you taken care of. This is a façade and it is important to remember that the insurance company’s bottom line is money.


            One rule I have come up with is that if you are diagnosed with a sprain, pull, or strain and the pain does not subside within six weeks, or gets worse. It is likely that you have been misdiagnosed and your condition may be more severe than originally believed. You must fight the doctor and insurance company in this case to give you an MRI. If at any time the insurance carrier denies you any services or prescriptions, you must consider hiring a lawyer. Once you have hired a lawyer you are no longer to have any contact with the insurance company. Your lawyer will now act as your liaison and all communications must go through them.


            The good news is that you will not be charged any money by the lawyer even if they are not able to get you a settlement. However, when they do reach a settlement with the insurance company, at least in California, the lawyer will generally get 15% of the total settlement and this amount is set by California law. Now, if you do decide to hire a lawyer you can be sure that the insurance company will not be very happy about it and they may try to deny even more care. In this case, the lawyer will, in general, have a doctor that will work on a lien status, which means that the doctor will be paid by the insurance carrier upon settlement of the case.


            After you have been seen by a doctor and your surgery, if needed, has been done and you have had time to go through physical therapy, the insurance company will most likely require that you be seen by an AME (Approved Medical Examiner). This is supposed to be an independent doctor that determines if all that can be done has been done and what your status is. He or she also determines how disabled you are which correlates to how much your settlement will be. In my case the AME I saw spent a total of maybe ten minutes with me and seemed rather hostile. After a year I have yet to even see the AME’s report. Remember, if you disagree with the AME’s final report, you do have the right to contest it.


            The biggest hurtle you may face is that while you are under a doctor’s care you should be receiving checks from the insurance company. The amounts of the checks are approximately 75% of the wages you earned while employed. You should also be receiving mileage reimbursements to and from your appointments, so make sure you keep track of where you have been and how far it is from your home. By the way, the mileage is roundtrip, so do not let them short you. However, once an AME has determined that you are “Permanent and Stationary,” by California law the insurance adjuster must immediately stop paying you. You will not receive any warning and you will only know that it happened about ten days after you should have received a check and instead you receive a notice in the mail.


            “Permanent and Stationary,” simply means that the AME has determined that everything that could be medically done to fix your condition has been and you are simply not going to get any better. Once you learn that you have been declared “Permanent and Stationary,” and you cannot return to work you must then apply for State Disability. Your treating physician should fill out and file the forms for you and you will begin receiving checks from the state in about fourteen business days. Of course, the amount of the checks you receive will be smaller than what you got from the insurance company, and the payments only last one year. 

            It is important for you to know that in order to qualify for State disability in California you must indeed be certified by a doctor to be disabled, whether partially or fully. You must be seen by the treating physician every six weeks and the doctor will likely have to keep extending your disability with updated forms until your condition is satisfied. I cannot stress enough the importance of checking your lawyer out. Do not just grab the first lawyer that comes your way. I am getting ready to hire a new lawyer because of my lawyer’s mistakes and inactions which have led to my current situation. I hope this will be helpful to you or someone you know that may have been recently injured, or are going through the California Workman’s Comp ordeal.


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