stewshe@comcast.net
Senior Member
Posts: 1381
Joined: Jun 2002
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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.
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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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