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Replying to Thread: Exposure to Retro VRTD
Created On Monday 6, October, 2008 2:47 PM by rosellavera


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rosellavera
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Monday October 06, 2008 2:47 PM

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Demand for VR 3/3/05
VR denial letter 1/3/06

Exposure 305 days @ TTD rate based on DWC 500L+P Notices
EDD paid benefits during period of exposure. EDD's lien paid in full.

What is claimant owed?


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gaiassoul1@yahoo.com
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Monday October 06, 2008 3:36 PM

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the difference between the TTD rate and EDD's rate, some people argue LC 4650 self-imposed increase is also owed, and others argue it does not apply to VRMA.

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postscript2
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Tuesday October 07, 2008 12:56 PM

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What was the VR denial based upon? Are you sure that any VRTD is owed? VRTD is the penalty for a delay in payment and often far outweighs a 10% penalty on VRMA.

LCS

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stewshe@comcast.net
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Tuesday October 07, 2008 5:17 PM

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LCS,

I usually agree with you, and suspect this time the disagreement is semantic, but your last post is simply not correct.

You have it backwards! VRMA is owed at the TD rate until the CA dots all the "i's" and crosses all the "t's." L.C. 139.5 allows a REDUCTION to the VRMA max of $246/week if and only if all of the criteria have been satisfied. Otherwise, VRMA is owed at the TD rate.

Bottom line: VRMA is not a "right," of the CA, but rather a "priviledge," to be earned by doing everything right. All notices, e.g., NOPE, etc., need to be sent timely, or the "retro" clock begins ticking.

Yes, L.C. 4650(d) is owed if VR is not timely paid, it is an indemnity to be paid the same as TD and if the CA delays, who should "suffer?"

Should it be the EE who requested VR, and was eventually proved to be correct in needing it, or should it be the CA who denied the benefit and who was eventually proved to have been wrong?

VRMA is owed at the TD rate from the earliest of:

1. A failure to send a notice of potential eligibility (NOPE) letter; or

2. A failure to authorize services after a "request" and checking the box on an AP is a request, IF the EE is ultimately proved to have been correct in requesting services because if an inability to return to their U&C or the job performed when injured.

3. The defendant also needs to assign a QRR with input from the EE or AA, or request an IVE.

The CA will complain, but the theory was the retro VRMA at the TD rate outside the Cap would be an "incentive" to the defendants to send EEs to reasonable docs, not "washout artists" who would eventually not be believed.

LC 4650 says if there is a delay in the payment of "indemnity" [and VRMA is indemnity, I've got lots of cites!], then the retro VRMA at the TD rate is also increased by 10%.

My point is the payment at the TD rate is not a penalty....it is simply owed until the CA complies with the L.C. and Rules/Regs. If the TD rate is not paid when due, then L.C. 4650 and a 10% increase applies.

A defendant who does not voluntarily pay the L.C. 4650 will face a 5814 penalty, plus additional attorney's fees under 5813 for forcing the AA to litigate to obtain benefits clearly owed.

-------------------------
Stew (James T. Stewart) e-mail: stewshe@comcast.net
Author: Work Comp Index & Tables & Schedules in "The Labor Code Book," by LexisNexis/Matthew Bender.

7th ed. Work Comp Index (912 pgs), $119.00 ea; next ed. summer, 2010 {Discounts for orders of 12 or more}
Send check or money order & shipping info. (I cannot take credit cards.)

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James T. Stewart; 1937 Santa Ana; Clovis, CA 93611

Edited: Tuesday October 07, 2008 at 5:19 PM by stewshe@comcast.net

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postscript2
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Wednesday October 08, 2008 1:07 PM

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My Bad!!!

I was really trying to find out the reason for the VR denial and the closed period of benefits. I could assume lots of things, such as PTP said QIW and later an AME said not QIW-or I/W was not voc feasable, etc.

IMHO, a "denial" is a strong letter to send absent an absolute finding of non-QIW status...

Edited for afterthought:

Since the WCAB does not have jurisdiction over QIW status or Rehab issues in general, I based my theory that the VRTD was a "penalty" in lieu of not picking up VRMA timely. This is why IMHO there is a difference of opinion as to whether or not the 5814 would apply... AND the Rehab Unit doesn't have authority to order the 4650 or 5814 penalties, right????

Then again, how can a Le Bouf determination be made without a WCJ???

Sooo, now what's going to happen now that VR statutes are permanently repealed effective 01-01-09????

LCS

Edited: Wednesday October 08, 2008 at 3:47 PM by postscript2

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stewshe@comcast.net
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Wednesday October 08, 2008 6:44 PM

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LCS,

I agree the RU lacks jurisdiction over L.C. 4650(d) or 5814. Most often the RU issues a D&O ordering retro VRMA at the "delay" or TD rate, the defendant appeals and eventually loses.

When payment is finally made if 4650(d) is omitted, a penalty petition can be filed seeking 10% of the retro or under L.C. 5814 the greater of 25% or $10k....plus attorney's fees under 5813.

A defendant would be wise to try to compromise these issues before they are litigated to a conclusion.

I'm not saying the AAs always win, but it usually works out that way when services are denied/delayed and then later accepted, with no voluntary payment of the retro.

I don't know what is going to happen after 12/31/08. I expect there will be litigation. Some CAs refuse to pay one cent after that date, while others are approving plans for schooling/placement which runs after 1/1/09.

If an EE has a 2003 or prior claim and has been TD and unable to participate the entire time, I would expect there to be an attempt to get at least the retro picked up even after 12/31/08.

It will be interesting to see how it all sorts itself out!

-------------------------
Stew (James T. Stewart) e-mail: stewshe@comcast.net
Author: Work Comp Index & Tables & Schedules in "The Labor Code Book," by LexisNexis/Matthew Bender.

7th ed. Work Comp Index (912 pgs), $119.00 ea; next ed. summer, 2010 {Discounts for orders of 12 or more}
Send check or money order & shipping info. (I cannot take credit cards.)

Prices INCLUDE sales tax, and shipping.

James T. Stewart; 1937 Santa Ana; Clovis, CA 93611

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rosellavera
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Friday October 10, 2008 9:33 AM

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More information. IW found not QIW by DQME 10/1/04. No denial sent out. PTP finds IW QIW 12/21/04. NOPE letter sent out, no reply from IW.

IC issues a Denial of VR on 1/3/06. IW gets EDD from 10/1/04 to 12/20/05. Since the denial was sent late, we reimbursed EDD its entire amount paid.

D&O: Lack of response to demand for VR of 3/23/05 = retroactive VR @ delay rate from 3/23/05 to 1/3/06 (denial notice); and from
5/16/07 (new request) to 8/1/07 signed RU-122, less credit for amounts previously paid.

If there was a denial of 1/3/06 why is there liability for payment of VRTD after that date?

Edited: Friday October 10, 2008 at 11:41 AM by rosellavera

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stewshe@comcast.net
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Friday October 10, 2008 6:45 PM

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rose,

Denials are sent because they are required to avoid audit penalties. They have absolutely no legal effect what-so-ever so far as I have ever been able to tell.

Look at it this way: Assume a legal obligation exists, e.g., when there has been a request for services and a PTP later says the IJ is medically eligible, but defendant is contesting injury AOE/COE.....sooooo they send a denial of rehab.

That "denial" and and 25cents will buy you some time on a parking meter, but nothing else!

If the claim is eventually determined to be industrial, the CA will be on the hook for retro VRMA at the TD rate [+ L.C. 4650(d)] back to the earliest of either the request for services, including checking the box on the AP, or the failure to send a Notice of Potential Eligibility.

The "denial" is simply meaningless as far as retro benefits are concerned.

-------------------------
Stew (James T. Stewart) e-mail: stewshe@comcast.net
Author: Work Comp Index & Tables & Schedules in "The Labor Code Book," by LexisNexis/Matthew Bender.

7th ed. Work Comp Index (912 pgs), $119.00 ea; next ed. summer, 2010 {Discounts for orders of 12 or more}
Send check or money order & shipping info. (I cannot take credit cards.)

Prices INCLUDE sales tax, and shipping.

James T. Stewart; 1937 Santa Ana; Clovis, CA 93611

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postscript2
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Friday October 10, 2008 10:59 PM

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Hi Rose:

I suspect that the D&O was issued on the 08-21-07, so therefore, the VRTD rate would apply.

Have you tried to resolve all issues via a $10k buyout for VR, excluding the retro bene's? Pay the retro and then settle, settle, settle!

LCS

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