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Thread Title: trial
Created On Friday February 20, 2009 6:17 PM

zaza
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Friday February 20, 2009 6:17 PM

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Hello everyone:

Could someone help me understand and tell me what to be aware of the outcome of my trial.
My case is 12 years old. I finally went to trial yesterday. My attorney said my disability is rated at 75 %, thus I will get a life pension and that the Judge gave the attorneys a 3 weeks extension to close the case. My attorney also said that I will be getting medical but that I have to go the insurance network providers. Finally she asked me how much I thought my medical were worth to me.

In all these years I have had problems in communicating with my attorney as she screams any time someone ask her a question (I had to stay with her because my case was so old ). I did not even got to speak to my attorney before the trial.

Now my question is what does all this means, what to expect in 3 weeks? for example, how did the attorneys arrived at 75% and what having a life pension means in term of %, calculated how. Also Can someone tell me if my injury was before 2004, do I still have to go trough the insurance network.

I have gone trough hell in the past 12 years. I have 7 discs herniated and need surgeries (neck and lumbar). I have not got any money from WC since 2005 and only get SS and SSI who provides me an In Home Support Service caregiver.
I would like some help in not getting too scr....

Thank you all

postscript2
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Friday February 20, 2009 7:49 PM

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Hi Zaza:

WOW, what a horrific ordeal you have been through! I'm sorry to hear it...

As a "C/A" and also an "I/W" myself (long story), I can try to help you out somewhat...

1) Since your injury is 12 years old, I am speculating that you were declared "Permanent and Stationary," long before 2004. That means that your "condition/medical problems," have reached the "end;" in other words, your "disability" has been established.

2) Most likely (again speculation), there may have been two doctors involved -- one for the "defense" and one for the "applicant." OR, perhaps you were seen by an Agreed upon Medical Examiner?
(AME).

3) The rating, is usually performed by the "DEU" (disability evaluation unit) -- or the parties have agreed to your % of disability. I find it "odd" that you had to go to "trial" and that the judge ordered a 3 week period of time for a "settlement" agreement. Not the usual "scenario, to say the least!

4) As for not receiving payments since 2005, it's highly likely that the I/C has already advanced all of their "predicted" % of your disability, paid out bi-weekly. Geez, back then I believe the P.D. rate was $140.00 per week.

5) You will, if you wish, be awarded future medical care, according upon which doctor's report is relied upon. You need to be wary of the "medicare set aside" provision, if you do intend to try and settle out your case in it's entirety. And from what you posted, that will be a MAJOR concern--not your's, but the I/C and attorneys. It's normally the job of the I/C to cover their "assets," in fact it's mandatory.

6) As for your attorney, well--most of them have to take on soooo many cases just to pay the bills and earn a living, that often times, they just don't have the time to spend with you. However, IMHO-being "rude" and esp. not "preparing you for trial," is just ridiculous! After all, they are going to collect a fee from anywhere between 12-18% of your settlement-so given your rating of 75%--they/he/she should be more responsible than this! Don't blame you for not switching as many AA's would be hesitant to take on a case so old and have to start from "page one."

Here are my suggestions, both as a "C/A" and an "I/W." Demand a printout of benefits provided. This would include any "indemnity payments," such as TTD, P.D. and "medical payments," etc. In order to put a price tag of the value of your future medical care, the I/C (defense) will calculate how much money has been spent over the life of your claim; especially in the last 2-3 years. Also take into account what the Doctor(s) say you need in the future.

Life pension involves a very "small" payment according to your age, which is paid out after your total P.D. is paid out and it's for life. I don't have my charts and labor code in front of me, however--it is very small. My guess is about $25.00 per week.

Again I'm sorry to hear this. W/C is tough on everyone...

If you give more facts, perhaps I can help you a bit more.

Take care and God Bless,

LCS

ScooterMan
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Friday February 20, 2009 10:12 PM

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Correct me if I am wrong, it sounds like you did not testify, that you were set for Trial, but, you just met with your attorney and they apparently agreed to settle your case fo 75% permanent disability by way of a Stipulation With Request for Award. They have 3 weeks to submit settlement documents. This 75% would be based on the disability stated by your doctor, or the AME or QME in your case. Perhaps rated by the DEU at the WCAB.

Assuming your wages at the time of your injury were at least $390 per week, your 1997 date of injury (12 years ago) your pd at 75% would be paid $230 a week for 471.50 weeks for a total of $108,445.00 beginning that date that you were made permanent and stationary. Once $108,445 has been paid, you will be paid $57.98 per week thereafter. The amount of the weekly payment will be reduced by a formula for atty fees to be paid. However, if they have not paid you anything since 2005, there may be a nice sump sum due for the retro. They can pay your attorney fees out of that lump sum and keep your checks at the amounts noted above.

She asked you what your medical care is worth to you because she may want to settle by Compromise and Release which ends your entitlement to medical care by paying you a lump sum. Because you are on SSDI, you will need MediCare to approve any settlement in this fashion and MEDICARE will tell you how much they need set aside for your medical before you can settle. YOU really can't throw up numbers.

In the next three weeks the insurance company should be preparing the Stipulations With Request for Award which is then sent to your attorney. She will call you to come in and sign. Then send it back to the IC. Someone, either their attorney or yours or both, will then take the paperwork to the Judge for approval. Once approved, you should receive all back benefits due, and your attorney will be paid.

Yes, they can put you into their MPN, which means you will have to choose a doctor off their list. You should ask for this list before you sign the Stipulations and get your attorney's input and assistance designating a doctor from the list, and setting up your first appointment.

Remember, your attorney should continue to represent you on future matters regarding your medical care.

I hope all goes well with you.

zaza
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Tuesday February 24, 2009 4:46 PM

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Hi postcript2:

Thank you for your help. Sorry I did not answered sooner but my husband just had back surgery and I have been pretty busy.

First you said that you are a "C/A". I don't know what it is. I am not familiar with all these terminologies. To me you are my help which I really need.

So, first yes I have been P&S (I know that one!) also immediatly, beginning 1997, and several times after by other doctors and AMEs (psych, stomac, fibromyalgia...).
I am almost sure I saw close to 100 doctors altogether.

However, I have been contesting the AME report in ortho since 2001.
If my disability rate and settlement are calculated from the AME report, I have a big problem.

In 1997, I saw an AME in ortho. He wrote a report with a diagnosis and future recommendation for treatments. Everything was OK.

Then in 2001, I saw a different AME who concluded that he had no changes from the first AME eventhough my back was worse. He wrote the same "no changes" in 2003 and in the last report in 2008.
No changes from the first AME report 1997 although there are several MRIs, EMGs etc.. showing much more damages with the years and no treatments. (He did noted that he reviewed some of them in his last report.)

I was able to get copy of the "insurance claim form" he submitted to the insurance for paiement. The diagnosis and code he wrote is cervical sprain. MRIs state 3 disks herniations (needing surgery), spinal cord and nerves damages In addition, no lumbar diagnosis is stated at all, which is the most damaged part of my body.

My intention was to sue him after I closed this case but if his report is used for calculation, it will be wrong. I told my attorney to file an appeal for the past few years, which she has to this day ignored and did not want to hear about it at the trial.[

You also wrote that "the I/C will calculate how much money has been spent...especially in the last 2-3 years".
Well practically nothing has happened since 2004 when my ortho retired. Since then, most my requests for treatments, tests for surgery etc...have been denied. I only have a chiropractor which thank God is helping a lot with symptoms. She will be gone too since she is not part of the network.

What do you think and suggest?
I appreciate your help. Thanks
zaza

b]TextText

STEVEPSCA@YAHOO.COM
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Tuesday February 24, 2009 5:21 PM

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<< My intention was to sue him after I closed this case but if his report is used for calculation, it will be wrong. >>

I'm not going to get too involved in this thread, mostly cuz you're getting good information anyway...

BUT... to put you mind to rest on the above... 'suing' the AME... forget it. And the reason is, you don't have a patient/treater relationship with this doctor/evaluator...the opinion/comments in the report are just that...opinion. And you can't sue someone for their opinion.

What you are doing, in disputing the report...is about all the recourse there is in Calif WC. (sorry....but at least this is one less issue you need to concern yourself with at this point)

<< You also wrote that "the I/C will calculate how much money has been spent...especially in the last 2-3 years". >>

When a WCMSA/WC MEdicare Setaside Account is necessary in settling a claim, the past 2 or 3 years of medical expense are used by the vindor, and CMS/Medicare in calculating the amount of money required to fund the account. If there hasn't been much in medical for that time... then the recommendations of your PTP would be taken into consideration...but that could also mean there wouldn't be all that much money demanded by CMS which may or may not be in your favor.

<< If my disability rate and settlement are calculated from the AME report, I have a big problem. >>

Yup, the value of the PD indemnity is based on the final PD/WPI % rating...that is traditionally done by the PTP and/or AME, but can also be calculated by the DEU/Disability Evaluation Unit.

<< most my requests for treatments, tests for surgery etc...have been denied. I only have a chiropractor which thank God is helping a lot with symptoms. She will be gone too since she is not part of the network. >>

If you mean 'you' are making the requests for treatment/surgery etc... you should not expect the CA to even address this... YOU are not the one to make these requests...ONLY the PTP can submit a request for treatment, it must contain ACOEM/MTUS/EBM back up to substantiate the need, on an industrial medicine basis. You can personally talk 'til you are blue in the face, and won't receive any response.

<< I only have a chiropractor which thank God is helping a lot with symptoms. She will be gone too since she is not part of the network >>

Question... WHY are you treating with a Chiro, if you have been determined to be a surgical candidate...? that to me goes against ALL medical protocol... and if you are surgical, I am suprised a good Chiro would continue to treat. (and I know a lot of Chiros to base that opinion on...)
CA = Claims Administrator/Adjuster...the person you have been dealing with at the IC handling your claim.

Anyway... good luck to you... I went further than I intended... sorry.

Edited: Tuesday February 24, 2009 at 5:23 PM by STEVEPSCA@YAHOO.COM

zaza
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Wednesday February 25, 2009 10:47 AM

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Hi and thank you for your response and info. I guess there is not much I can do with the AME! So if he does not want to acknowledge my lumbar injury even with objective tests, there is nothing I can do??

What is a PTP?; WPI ?

As for the chiro, the first AME in 1997 wrote to have the surgery available if necessary, so has PT, chiro etc.... the surgery option has gone back and forth for years, not refused officially but the tests necessary (MRI, nerves...) have been denied or delayed for years. in the meantime I did get chiro/PT treatments without much problems until 2004.

then, The second AME, in his 3rd report (2008) said he was not changing the findings of the first AME but he limited the chiro visits/year and was no longer recommending surgery. All others ortho, surgeons, MD I saw in all those years have said surgery is a must. So in the meantime that everyone agree in a timely matter; I have been fighting to have at least some help/pain relieve. I cannot function without that particular treatment which is not the traditional chiro crack, push, pull type but does work for me.

If I am stock with this AME and cannot dispute his "opinion", the picture looks pretty depressive.

Thank you anyway for your infos that do help.
zaza

postscript2
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Wednesday February 25, 2009 2:35 PM

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Hi Zaza:

What a predicament... If I were you, I'd consider leaving your future medical care open, so that when you are assigned a new treating doctor in the network, he/she could request the additional testing and surgery if necessary. This way the AME will have a "current" medical report in case the parties need to go back to him if treatment isn't authorized.

From the sounds of it, if you haven't treated since 2004 with your ortho (and only the Chiropractor), then the AME wouldn't have any fresh medical information to comment upon and hence it's my opinion that is the reason he said "no change" in your medical condition.

It is also comprehensible that the reason the requests for treatment/testing have been denied is that they were reviewed per "Utilization Review" who would/could likely state the the Chiro is commenting outside his/her area of expertise and especially with herniated discs. I'm guessing, but pretty certain I'm correct here.

If you didn't file for new and further disability within 5 years of your injury, then your permanent disability is going to likely remain the same. (many of us here on WCC have different opinions which are vastly apart).

Here are some acronyms/abbreviations that you should familiarize yourself with:

U.R.: utilization review - a company that reviews requests for treatment per certain guidelines***
P.T.: physical therapy
PTP: primary treating physician
AME: agreed medical examiner
DEU: disability evaluation unit
C/A: claims adjuster
C/E: claims examiner (same as above)
WPI: whole person impairment--a number assigned to your disability
P.D.: permanent disability
T.D.: temporary disability
TPD: temporary partial disability -- same as TD, but issued due to a "temporary" work restriction PTD: permanent total disability -- 100%
L.P.: life pension
FMC: future medical care
TX: treatment
RX: prescription for medication and or procedures
MPN: medical provider network***
S&A: stipulations with request for award -- leaves FMC open; settlement is agreed upon...
F&A: findings and award -- leaves future medical care open for life, but a finding, issued by a judge
SOL: statute of limitations
SOL: s**t out of luck,

--and my favorite: SWAG: "scientific wild assed guess" (honestly, it's in the Labor Code)

I hope your husband's recovery is going well. It's great that you are able to be with him and comfort him. I'm also happy that you are receiving some in home assistance. Wish I could offer you some better advise here.

Maybe a few others will chime in and have a different point of view. In the meantime, I think closure is what you need at least for the sake of peace of mind. As always, you can send me a "PM" (private message) on this forum.

Take care, God Bless!

LCS

***Ask Steve re these two as he is much more knowledgable than I am and better at explaining it (I have a certain bias against both of them...I don't like them!) Also be certain that you were sent the proper notices regarding the transfer of care into a provider network or they may not be able to force you into it.

Edited: Wednesday February 25, 2009 at 2:49 PM by postscript2

zaza
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Wednesday February 25, 2009 5:53 PM

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Hello LCS and first I thank you for helping me in this mess.

Regarding future med treatments: I told my attorney at the trial that I wanted to have the option open for surgery before I settle. Should I require that now or should I wait to get a Dr. from MNP??

you say that it sounds like the AME doesn't have any fresh med infos b/c I don't have an ortho. But, The AME does have and stated that he reviewed one MRI done in 2005. There are definite progression of damages diagnosed since the MRI done in 1997.

I have had couple more MRI and EMG done since 2005 but through Medicare since requests for them to WC were denied by defense A (DA?). I have given a copy of every tests done to my attorney (!!!). Can I presente them myself at the settlement trial ????

You also say that if I have not file for new and further disability my PD remains the same . I know that my att.. has added some parts in addendum. Would that make a difference or would the rate still be based from the AME report??

I have to figure out something because the way it is right now is scary if I settle I get practically nothing as the rating of disability thus, $ compensation, is based on old diagnoses such as work impairment being "slight to moderate"in 1997 and "no changes" from the AME now.

I need to precise that the 75 % mentioned include psyche, fibro and bruxism. The actual ortho rating is in the 30 something. Since my primairy is a psyche that were most of the % is.

thanks for helping
zaza

P.S. thank you very much for inquiring about my husband. It has been very difficult with my limitations (both physique and mental) and reconsideration for surgery after seeing him in such pain...(I'm not very brave here). Anyhow it's going to take time but the surgeon is very pleased so...

STEVEPSCA@YAHOO.COM
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Thursday February 26, 2009 5:07 AM

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<< have had couple more MRI and EMG done since 2005 but through Medicare since requests for them to WC were denied by defense A (DA?). I have given a copy of every tests done to my attorney (!!!). Can I presente them myself at the settlement trial ???? >>

When your PTP, whether it't psych or Ortho doesn't matter...submits a request for treatment/PR-2, it goes to the CA and/or UR doctors for a review to medical necessity based on the ACOEM/MTUS/ODG/EBM guidelines... the DA, nor the CA can deny a medical request on their own determination. And, since Sandhagen I/II came into play, the IC cannot use the AME process until the UR plan has been exhausted.

For one, you should definately file the Audit Unit referrals on EACH instance where there has been non-compliance to any code/rule you have experienced. You do this, not your attorney.

The MRI's, or any other testing you have had performed due to the denials, and where Medicare has made conditional payments, will have to be determined and probably reimbursed to CMS/Medicare at the resolution of your claim.

Those tests too, as they are over a year old are now 'stale' and aren't actually relative to your condition today.

<< I need to precise that the 75 % mentioned include psyche, fibro and bruxism. >>

The report, whether PTP, or AME will include the factors that were taken into consideration in calculating the final rating...issues that are not commented on, are not addressed in that rating.
It would be more important I think to ensure those issues are included in your claim as 'compensable consequence' (if that is what they are) so you are entitled to the medical benefits/treatment. Those conditions carry substantial costs for treatment, and are long term in most cases.

<< Regarding future med treatments: I told my attorney at the trial that I wanted to have the option open for surgery before I settle. Should I require that now or should I wait to get a Dr. from MNP?? >>

Are you referring to an actual 'trial' here, or was this an "MSC", Mandatory Settlement Conference" ?
I believe this was an MSC, which is held to determine IF discovery is complete...if so, then a trial would be set on calendar. Doesn't appear you have had an actual 'trial' as yet.

IF there was a trial, a Finding & Award would issue, including your future medical entitlement.
Once you have a PTP in the MPN, a treatment plan would be formulated, and the PTP would then begin submitting the PR-2's/request for treatment... TO the IC's UR dept.

<< I have not got any money from WC since 2005 and only get SS and SSI who provides me an In Home Support Service caregiver. >>

As Medicare is providing services at this time... I would presume you are providing the co-pays/deductibles on those services... those out of pocket costs should be calculated fully in any settlement/stipulations so you are reimbursed if the services are determined to be one of those 'compensable consequences' to your injuries.

zaza
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Thursday February 26, 2009 5:36 PM

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Hi and thank you for your GREAT infos.
OK
1- What is the Audit Unit referrals?
How do I contact them?
What can they do?

2- My PTP as a psych was told (in writing) that she had no expertise in ortho and her requests were denied.

"the IC cannot use the AME process until the UR plan has been exhausted"Text

3- what is that plan?? and by the AME process do you mean the report??

4- It was stated as being a trial. Both the attorneys talked to the Judge; they told me disability is set at 75 % but apparently the defense did not have some 'chart' and told the judge in front of me. I'll take the 3 weeks" then turned to me and said to me "I'll do everything possible to have all done by then". %, body parts (what was accepted such as psych, spine neck, back etc..). No money and/or compensation was approched except my attorney asking me "How much do you think your medicals are worth" which I had no idea.

5- as far as Medicare; I found out the medical set-a-side that needs to be taking care of prior settlement. I am checking into that. Someone is suppose to call me back.

Thanks. I'm starting to see clearer.
zaza

Loislane
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Thursday February 26, 2009 7:04 PM

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Does your attorney know that you are on MEDICARE?

If so, I find this statement, " "How much do you think your medicals are worth" QUITE DISTURBING. At this juncture, i would ask her for the information regarding her malpractice insurance. SHE IS GOING TO NEED IT. If she is aware that you are on MC, and still asked this question, you need to sit down and have a LONG TALK with her, as she could shortly find her ass in a sling, if she cashes out FM on cases where the IW is on MC.

Best of wishes ZaZa,

Lois

zaza
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Thursday February 26, 2009 8:11 PM

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Hi Loislane

YES she does. She also knows I am on Medical and that HISS (in home support services) aka caregiver, provided by medical. I have also told her that I used medicare to pay for the tests when she asked me at the time I gave her copies.

Why ??

She has been screaming to close the case since 2005 when I got a first rating at 69 3/4 % which I refused because 1/2 of my problems were not adressed.

She has put me through hell without any help all these years. Is there something I can/should do ???

THANKS
zaza

STEVEPSCA@YAHOO.COM
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Friday February 27, 2009 9:07 AM

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Yes Lois... I'm reading this... unbelieveable...

raza... your AA needs to get a continuance on this... both the AA and DA/CA are facing fines approaching 1000 DOLLARS PER DAY for not taking Medicare interests into consideration here....

you cannot, or should not anyway agree to ANY settlement that does not address your SSA/SSDI/SSI/Medicare/Medical issues...For any costs Medical has advanced to your work related injury...will have to be reimbursed...Medi-Cal is asset based, and will not cover work related injuries. Medicare is not liable for work related injuries either...

Your AA has more on her plate here than screaming for settlement... appearantly she is not aware of the issues surrounding CMS/Medicare, or is attempting to circumvent the requirements under the MSPA/Medicare Secondary Payor Act...

I'll give this http://www.jjcelderlaw.com/SettlementProcessMSABull.htm for you to begin reading, and I'll be back later...

DO NOT SIGN ANYTHING that even looks like a settlement....

zaza
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Thank you SO much for your inputs. I can say that you are all saving my life right now as I feel being harassed by my attorney and don't know what is right. I,m going on the web right now thank you
zaza

STEVEPSCA@YAHOO.COM
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zaza, when you've read through the links I provided, and whatever else you are researching..come back with your questions... there has been a lot of discussion on topics you are working though now, and there is no point in being redundant...

Come back when you're ready with the questions...

zaza
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Questions:

Should I call my attorney and ask her about Medicare/medical-set-a-side or should I wait to see what she does?

Should I call Medicare/medical to tell them my case is about to close or should I wait?

Thank you for your suggestions.
zaza

STEVEPSCA@YAHOO.COM
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Either your AA, or the CA has to have you sign a release of information for SSA...
That will allow SSA to provide the records to clarify your status, and if Medicare has made any conditional payments.

Your AA should be in contact with the CA and/or a WCMSA vendor to get a print out of your past 2 or 3 years of medicals, and the payments made so a setaside proposal can be formulated. The proposal must be submitted to CMS/Medicare for a determination IF and HOW MUCH money is required to fund the setaside account.

All of this is discussed in the bulletin link I provided....
YOu can call your AA, not the CA, and discuss these issues...and remind her that you do not intend to settle this case by a C&R until Medicare interests have been protected if necessary.

IF you settle the claim by a Stipulation w/Award... or a Finding & Award/Order through a trial... the medical benefits are not affected, and you do NOT have to take the steps to protect Medicare interests.

You don't need to call CMS/Medicare... once the required actions are taken... you sign the release of information of your SSA records, that will get the ball rolling.

The CA and your AA are walking on very thin ice here if they are attempting to circumvent this process... very thin ice...and what could be very expensive for them... up to 1000K per DAY in fines.

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