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Thread Title: Bad AME bad attorney what do I do?
Created On Wednesday February 25, 2009 9:07 PM


jibr
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Wednesday February 25, 2009 9:07 PM

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I was injured in Sept 2006 fractured foot. In May 2007 I had surgery , for several months I was unsure if I would be able to return to work because it was too painful to stand for long periods of time. In November 2007 I returned to full duty. In June 2008 my attorney sent me to an AME. At this time I was happy with my employment but I did tell the AME that I still had some pain when standing for long periods of time. When I received the AME report I did not agree with it at all . It said no standing for more than 4 hours a day and no running or jumping. It also said I could do regular work and rated me only 1% disabled. It didn't make sense because it is not a sit down job. It also said I am allowed continuing medical care. I went to my treating physician and got a note saying no restrictions. In November I was told by my employer that they could not accommodate my restrictions and I could no longer work there unless my restrictions change by May 2010. They refuse to accept notes from my treating physician and my attorney has said oh well life isn't fair. He doesn't want to help me because he is not making any money if I am saying I am not disabled. So he has not even tried to get me an appointment with the AME like I asked him to six months ago. I just want to go back to work .My foot doesn't even hurt very much anymore. Any advice?

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postscript2
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Thursday February 26, 2009 1:33 PM

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This IS an unfortunate, yet very common occurance with the new rating schedule. There are a few things to consider.

1) Did your employer make you an offer of permanent modified/alternative or regular work within 60 days of reaching MMI (Maximum Medical Improvement)? If not, then your (small) percentage of disability would be increased by 15% per week. If they did make the "offer" they only have to accommodate your employment for a period of 1 year and your permanent disability would be decreased by 15% per week. But with such a small percentage you wouldn't meet either threshold as the first 60 days don't count for the increase/decrease. No guarantees after that, legally and per the labor code.

2) Did the AME state that your work restrictions were "prophylactic?" This means that they were issued on a "precautionary" basis. Sort of contradicts the OK to return to "regular work." Do you know if the AME was provided a "job description" for your current employer???

3) Fractures make the bone weak and have a high propensity for re-occurance, so unless you want to drop your claim completely, I would consider whether or not to hold on to the future medical care.

4) You are absolutely correct that your attorney isn't going to be willing to work for nothing, so no small wonder he/she isn't moving too quickly here. You could dismiss your attorney and "sub-out" representing yourself. This "should" allow you to return to the AME.

5) You should really weigh out all of the consequences and options here before making a decision. I mean, what if, God forbid, you re-fracture that foot and it causes you to fall, injuring your knee, straining your back, or arm, etc. Under the laws you would be able to claim the fall either as a new injury/incident-- a compensable consequence -- and/or file for "new and further disability," within 5 years of the date of your original injury. All of which would take a doctor's opinion.

I believe that our employer is protecting themselves against letting you work regular duty with this heavy restriction--in fact they are required to honor it, so that they aren't dinged later for "willfully" knowing of your restriction and allowing you to continue working.

I really feel for you, this happens all of the time. I once handled a claim for a fire fighter who had a knee surgery and it only rated 3%. So it goes.

I'm no "legal eagle," as I'm not an attorney, but have been a Claims Adjuster for over 20 years.

Bottom line: I would highly encourage you to call your Information and Assistance Officer to go over what I have written you and about your options. Don't ever take advice on a forum as the "gospel," as we all have our different opinions.

At any rate, good luck and let us know how you are doing...

LCS

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STEVEPSCA@YAHOO.COM
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Thursday February 26, 2009 2:34 PM

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Because you disagree with the AME findings/report, is not enough reason for a supplemental report.
Your going back and talking your way through this isn't the way it's handled.

The 2010 timeline is within the perameters of the 1 year of job acommodation... that is a 'reasonable' acommodation to your restrictions.
The 4 hour standing restriction is in yours, and the ER's best interest. That allows for you to take the necessary 'rest period'.... actually, that would be a normal lunch break...4 hrs am, 4 hrs pm... theres' your 8 hour day.



<< My foot doesn't even hurt very much anymore. Any advice? >>


What's the problem... you have until 2010 to 'rehab' yourself, and get the restrictions lifted... you are being acommodated at this time, and you have the opportunity to re open the claim with in 5 years of your DOI, as LCS has indicated...



<< I went to my treating physician and got a note saying no restrictions. >>


Why,? the AME report supercedes the PTP notes on restrictions.

I don't see that you are in any jeapordy at this time.

What is it you are looking to happen here?
Are you not happy with the 1% WPI rating...?
What is your disagreement with the AME report..?
If you go back and get the restrictions lifted completely... there could possilby be a reduction to the 1% (looks like the AME gave you a stipend here in the 1%)
If you want the rating increased, that would mean additional/longer restrictions, and/or impairment....

Like LCS, I'm not an AA, just a lowly IW like you... and no doubt this opinion will differ from others... most likely your own.

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jibr
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Friday February 27, 2009 6:32 PM

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The problem here is I am not working. It took me 8 years to get the position I had and it is very unlikely that I would find anything that pays anywhere near that much right now. I will lose everything if I don't get to go back to work. I don't care about having any disability rating, I just want to go back to work. Sitting down 4 hours a day is not something I want to do.

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STEVEPSCA@YAHOO.COM
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Saturday February 28, 2009 4:11 AM

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Your feelings and frustration are understandable... it's not your fault you go hurt...but it's not your ER either.
But an injury whether work related, or non industrial is something that everyone will have to deal with as the situation arises...
Right now, you are in that position...an injury, any type is life altering, only the extent of the alteration can be determined by your actions, and how you deal with the situation.

With all that said, I'd have to ask once more...


<<
What is it you are looking to happen here?
Are you not happy with the 1% WPI rating...?
What is your disagreement with the AME report..?
If you go back and get the restrictions lifted completely... there could possilby be a reduction to the 1% (looks like the AME gave you a stipend here in the 1%)
If you want the rating increased, that would mean additional/longer restrictions, and/or impairment....
>>



It looks as though your ER is making the 'reasonable acommodation' to your restrictions... why not just go back to your job, and work to get the restrictions lifted...there is nothing that says you can't 're hab' out of the restrictions placed on you.

I'm sorry you are in the situation you are facing... LOTS of people are in the same boat after a industrial injury. You'll be suprised how fast May 2010 comes around, and you'll potentially be back in the same job you had pre injury.


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jibr
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Saturday February 28, 2009 9:28 AM

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I guess I didn't make this clear. My employer is not giving me the option
of working with restrictions. I have to get the restrictions taken off or I will be
terminated. The only person that change these restrictions is the AME. I have not
been allowed to go back to the AME. I don't care about any disability rating. They gave
me $600 and want to terminate me for being disabled. I even told my employer I don't need
any accommodation I just want full duty. I asked if I could sign something saying I don't
need restrictions. They said no I can only work if the AME changes it . So if they never let me
go back to the AME I will never get my job back. I have been off work for three months already.

If I knew this was going to happen I wouldn't have reported this as a work injury.
I would have just went on disability until I healed enough to work again. 600 dollars is less than
a weeks worth of pay not worth losing the job over.

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jibr
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Saturday February 28, 2009 10:44 AM

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My employer is offering me nothing. The report didn't say if it was prophylactic, I was also wondering that. The report said I cannot get any permanent disability . No one has said it is an option to drop claim completely. I don't really care about continuing medical care. There is nothing else they can do for me. The only purpose of going to the doctor would be to get orthopedic shoes, but when I got those they weren't even made right.

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STEVEPSCA@YAHOO.COM
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Saturday February 28, 2009 11:47 AM

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<< If I knew this was going to happen I wouldn't have reported this as a work injury.
I would have just went on disability until I healed enough to work again. 600 dollars is less than
a weeks worth of pay not worth losing the job over.
>>


It's not an option. The law requires that work related injuries be reported to the ER, and the ER holds liability for the benefits under the law.
IF you knowlingly claim benefits under your personal health care policy for a work injury, it could be seen as fraud against the IC. That is not something you would gladly exchange this process for.



<< I guess I didn't make this clear. My employer is not giving me the option
of working with restrictions. I have to get the restrictions taken off or I will be
terminated.
>>

Your ER is in need of a refresher course here. Federal law supercedes any internal policy your ER may feel is there 'right'. Under ADA rules, and Calif., the ER is required to engage in the 'interactive process' in an attempt to make a 'reasonable acommodation' for your RTW. IF the acommodation cannot be granted... they must show a financial hardship. The ER cannot require that you RTW with '0' restrictions...


<< So if they never let me
go back to the AME I will never get my job back. I have been off work for three months already.
>>

Then you need a supplemental report from the AME...and if your AA won't request this... fire your AA, and do it through the I&A officer.
But, your PTP can write a report to life your restrictions..and IF the CA disputes this, that would be a reason for the supplemental report from the AME. So your ER would be forced to take action one way or another.
Just like SSA... the most current report in hand, is the only one that counts for the moment. Until there is another med/legal opinion... the one you have is the one used. Any medical report is based on your condition THE DAY you present for the evaluation.


<< The report said I cannot get any permanent disability . No one has said it is an option to drop claim completely. >>

If the AME report says zero to PD/Impairment, then there should be no restrictions.
Dropping the claim is unlikely to change the circumstances you are facing now.



<< The only purpose of going to the doctor would be to get orthopedic shoes, but when I got those they weren't even made right. >>

Did you take the shoes back to be refitted...? If not, then it's your own fault you don't have the correct shoes that will help you.

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