Case Study: Why an Injured Worker Litigates

Sunday, February 29, 2004 | 0

Much of the push towards reform is to remove litigation from the system through increasing regulation. Yet, the more regulated work comp becomes, the more complex it becomes. The more complex the system becomes, the more opportunity arises for mistakes, questions, and ultimately distrust.

While the editors of workcompcentral.com are not taking a position one way or another on reform, the following excerpt from the workcompcentral Injured Workers Forum is illustrative of how an injured worker is driven to seek the services of an attorney, and how the system itself, with assistance from the otherwise well meaning, but legally constrained carrier, contributes to litigation.

The post has been highly edited for readability. The editors understand that this example is anecdotal on the issue of litigation, however, we also felt this dialogue is illustrative of a serious problem with the present workers' compensation system, and points to critical failure points in system/carrier/injured worker interaction. This article is offered here as a working model for training and understanding purposes for injured workers and professionals alike:

"In reference to an article in your forum ('Waiting a Long Time') there was mention about presumptions of injury before 1/01/03. I'm not real sure what that means.

"I had an injury to my back in Nov. of 2001, the following April, 2002 I had surgery, fused L-1 thru the L-5 vertebrae. She did not fuse the L-5 to the S-1 vertebrae saying it was her option as surgeon. What would be the Presumption in a case like this?

"Its been over 2 years now and the carrier was finally just about to offer me something when they served me the report from the Qualified Medical Examiner (QME).

"Is it SOP (standard operating procedure) for the Insurance Carriers to tell me 6 months later that it was an option to go and see this QME Physician? I mean to say that the letter I received telling me, or should I say ordering me, to choose 1 of the 3 doctors on the list (and one was my Primary care physician) and to set up an appointment in such a way to had me believe that it wasn't an option, but a mandatory appointment.

"Every thing I read by the carrier seems to say , 'you don't need to hire an attorney'. In fact on a couple of forms it actually said this. Is this also SOP?

"The Carrier has made a hint to settle at 63%. I've been back to my Primary Care Physician and now they are putting a foot and leg brace on my right leg, due to some absent minded surgeon who has now been gone out of state just over a year ago, dumping me and my case to some Physician whom I think works for those Insurance Carriers here in Caifornia.

"I've asked him about this brace and if it would affect my rating? He said nothing! I asked a little later he said nothing! And again one more time with the same effect! Now I am seriously wanting to retain an attorney. I feel like all of a sudden I'm getting screwed. Have I got any remedies?"

In response, one reader offered advise:

"'Presumption' applies in many areas of workers' compensation. The 'primary treating physicians' presumption simply means that your designated 'primary treating physician' is 'presumed' to be correct on particular issues and any QME must overcome that presumption with substantial medical evidence, not just a difference of opinion.

"If the insurance carrier, or you, objected to the opinions of your treating physician, you did not have an 'option' to refuse to see a QME. Once an objection is entered, Labor code 4061(d) says the carrier SHALL provide you the forms to request a panel of 3 QME's from the IMC. It further states that the injured worker SHALL select a physician, make the appointment and attend the appointment. It is not an option. If you fail to participate, the carrier can force your attendance or terminate your benefits.

"The carrier is required to advise you that you do not NEED to have an attorney in order to receive your benefits. However, they should also tell you that you do have a right to be represented if you chose.

"The physician's who treat you, who are the QME's do not 'work for' the insurance carriers, although it may seem that way. They do have an interest in keeping the carrier's happy, and the applicants and their attorneys, or no-one will come back to them in the future for the next case. There are thousands and thousands of patients looking for QME's and treating physicians.

"Your physician is not a rater of permanent disability. He/She reports your condition, your braces, your limitations, etc. The insurance carrier and the Disability Evaluation Unit rate your disabilities based on the report of the physician. Of course the physician knows if certain things will affect your rating, but he/she is not going to tell you. Why? Because if he tells you 'your 20% disabled' and then the rater says you are only 10%, who are you going to rant and rave about next....the doctor!

"If your condition has changed since you saw the QME, you need to see the QME again. A brace on a leg is a significant change.

"If you have questions about the letters you receive from the insurance carrier, or the process they are putting you through, call the Information and Assistance Office at your local WCAB. They are qualified to advise you on the process and keep the insurance carrier's in line."

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.