DGC Attorney, Scott Ashby, Eliminates Future Medical Exposure of $1,032,789 with Structured Settlement for $300,000, Resulting in Approximately $732,789 in Client Savings.
On May 10, 2018, Associate Attorney Scott Ashby (DGC San Diego) ended newly-ignited medical spending (averaging over $21,754 per year in medications alone) by way of OAC&R from the San Diego WCAB on a 2015 stipulated case of a now 47 year-old applicant, who had filed a timely Petition to Reopen due to a worsening of her psyche condition.
The applicant had been a stocker and was struck on the back of the head and neck by a falling box containing a microwave. Early symptoms were documented as nausea and dizziness, severe headaches as well as neck and shoulder pain, momentary loss of consciousness with posttraumatic amnesia. Anxiety, sleep disturbance, panic attacks, domestic disputes, repeated cutting behaviors, major depression, nightmares, and borderline personality disorder crept into the applicant’s work injury complaints and history.
Post-award, the parties returned to the AMEs in psychiatry and neurology. By this time, the picture included multiple suicide attempts and psychiatric hospital admissions as well as very expensive migraine and psychiatric medications based on the medical reports and UR decisions. Approved medications included Diazepam, Chlorpromaz, Chlopromazine, Effexor XR, Propronolol, Sumavel DosePro Injections, Relpax, Eletriptam, Zonisamide, and Latuda. Valium was not approved, but applicant paid for it out-of-pocket. Documented marijuana use was also a part of her medical history.
To promote resolution of the claim and reduce the risk of tragedy for all parties, Mr. Ashby assisted the claims examiner in developing a plan to consult with a medical expert and obtain his opinion about the use of the extensive neurological and psychiatric medications. The respected specialist who was consulted confirmed the reasonableness of the current treatment, and advised that it was “…very likely…” to continue for life, given all comorbidities and home life stressors.
With $229,972 in medical payments already (TD and PD were only $8,226 and $24,035 respectively), the consultant’s opinion laid to rest any doubt that the claims examiner’s Future Medical Outstanding Reserve of $1,032,789 would most probably be spent, given the applicant’s relatively young age. The risk of her possible death also hovered.
Again for the benefit of all parties involved, Mr. Ashby and the claims examiner were steadfast in their persistence with the applicant attorney that the legal guarantees and closure provided by a structured settlement (as opposed to continued litigation) could at the very least ameliorate one lingering stressor in the applicant’s life and hopefully provide a boost to her psychiatric condition. Mr. Ashby worked collaboratively with the applicant attorney to make sure the settlement offer was communicated clearly and in the right vein.
The following Structured Compromise and Release agreement was reached: $205,000, guaranteed in the form of $1,110.02 payable monthly to applicant for the next 20 years of life beginning on 07/01/2018; $60,000 up-front cash payable to the applicant; and $35,000 up-front cash payable to applicant attorney.
OAC&R and Walk Through Appearance Sheet: Click here
Structured Annuity Settlement Addendum – Paragraph 9: Click here
Outstanding Medical Reserves and Settlement Evaluation: Click here
Compromise and Release Document – WCAB SDO: Click here
A Discussion Regarding California Code of Regulations, Title 8, Sec. 9785.
The latest submission to the DGC website (available also using AskDGC@DGCAttorneys.com), came from a client who asked: “Is there a Labor Code Section to support an adjuster stopping TD benefits based on no recent medical report? When should an adjuster stop TD benefits if there is no medical evidence?”
Our response noted that there is supporting legal authority for an adjuster to halt TD benefits, and shared a few of the more common situations where one should, if appropriate for strategic management of a claim, keeping in mind each claim is unique and managed under various client guidelines.
For instance, in accepted claims where initial eligibility for TD benefits is a pending issue, 8 CCR §9785(d) indicates that the “…primary treating physician shall render opinions on all medical issues necessary to determine the employee’s eligibility for compensation…” Thus, since a medical report is necessary for determination of TD entitlement, then the absence of a report addressing the issue would render entitlement indeterminable by the adjuster.
At any point in the life of a claim, an adjuster can proactively ask the PTP for information necessary to administer the claim (such as disability status and work restrictions), and the PTP has 20 days to respond per 8 CCR §9785(f)(7). If the PTP then fails to respond, TD benefits can indeed be stopped, if appropriate to the claim circumstances.
Moreover, 8 CCR §9785(f)(8) requires the PTP to provide a PR-2 Report (or narrative containing the same information) every 45 days when there is continuing medical treatment, even if there is no change in the claimant’s medical condition. The PR-2 Report format (8 CCR §9785.2) essentially requires the PTP to address TD status every 45 days, including how long the claimant will be off. If the last report is over 45 days old, an adjuster can schedule an appointment with the PTP and send the claimant a request to attend, along with a Notice of Intent to Suspend TD benefits. If the claimant fails to attend, then TD benefits can be suspended, per Labor Code §4053.
Keep in mind that none of the aforementioned applies if there is an Order for continuing TD payments. Also, under Labor Code §4053, for accepted claims, “suspending” TD benefits means those benefits will be withheld, and if the claimant later comes into compliance, those benefits will be payable, along with TD benefits restarting.
California Code of Regulations, Title 8, §9785: Click here
California Labor Code §4053: Click here
AskDGC! Disclaimer: Click here
DGC Attorney, Carl Taber, Wins at Trial on Almaraz Guzman II Issue; Begins turning tide against inappropriate AME strength measurements
On March 2, 2018, associate attorney Carl Taber of DGC’s San Francisco office obtained a Joint Findings and Award in which the WCJ agreed that the AME had not effectively rebutted the PD schedule, currently resulting in approximately $46,000.00 in PD savings for the defendant, a self-insured public transportation provider. The applicant, a long-time bus driver for the employer, sustained a specific injury to his shoulders helping a wheelchair-bound passenger onto the bus.
The case went to trial on the issue of permanent disability calculations under Almaraz Guzman II vs. the AMA Guides, 5th Edition. The AME had calculated WPI for both shoulders under the range of motion method as indicated in the Guides, but also provided what he claimed was a “more accurate” Almaraz Guzman calculation of shoulder injury based on grip strength measurements. Although grip strength measurements are not favored under the AMA Guides, a growing wave of med-legal evaluators have been utilizing them as part of an Almaraz Guzman analysis to provide higher ratings than those contemplated by the presumptively correct PD schedule, and many judges have deferred to an AME’s judgement on WPI calculations.
Mr. Taber successfully argued that the AME’s opinion as to the grip strength impairment was not substantial medical evidence due to the AME’s conclusory language, the lack of atrophy, the clear omission of manual muscle testing, and the fact that reliance on grip strength testing is contraindicated by the AMA Guides themselves. In summation, the WCJ found it “…implausible that applicant would have been able to continue driving a bus…up to 60 hours per week for nearly two years as of the date of this trial in the presence of such substantial loss of strength.”
Currently on recon, this case may provide a needed turning point for employers and claims administrators as defendants, and should be followed closely.
Click below to read redacted Joint Findings and Award and Opinion on Decision; Applicant’s Petition for Reconsideration; Defendant’s Answer to Petition for Reconsideration; and the WCAB Judge’s Report and Recommendation on Petition for Reconsideration.
Joint Findings and Award & Opinion on Decision: Click here
Applicant’s Petition for Reconsideration: Click here
Defendant’s Answer to Petition for Reconsideration: Click here
WCAB Judge’s Report and Recommendation on Petition for Reconsideration: Click here
DGC Attorney, Jeff Hammill, Obtains Lien Withdrawals After Assisting Riverside County Prosecutor in Obtaining Fraud Conviction
On January 3, 2018, at a Lien Conference at the Santa Ana WCAB, the lien holders of record withdrew all liens for medical treatment provided to a California school district cafeteria worker convicted of workers’ compensation insurance fraud under Insurance Code §1871.4, subd. (a) (4), for fraudulently obtaining medical treatment. The claimant was sentenced to three years’ probation and ordered to pay restitution.
Securing deposition testimony and a well-timed workers’ compensation claim dismissal, DGC’s Jeff Hammill assisted in the criminal prosecution. In further obtaining the withdrawal of all liens, Jeff wrapped up the defense for his client in the workers’ compensation case. The file was referred to Jeff from the start of litigation in January 2014.
On December 14, 2017, in support of Riverside County’s fraud conviction, the Fourth District Court of Appeal upheld a restitution order for $34,925.09 in medical, deposition, investigation, and salary reimbursement expenses to be paid by the convicted claimant. The claimant challenged the majority of this amount, claiming abuse of judicial discretion and arguing culpability only for costs incurred after being caught “milking” the claim. The court reminded the claimant that by pleading guilty to a misdemeanor on a felony insurance fraud charge, she had by law already admitted to “faking” the entire injury.
Claimant had claimed a specific injury to her low back, spine and spinal cord from lifting a box of frozen burritos. She subsequently told her doctor about inability to lift her arms, sit for prolonged periods, or walk without a limp. However, video surveillance obtained while treatment was ongoing, and shown to the treating orthopedist, clearly showed claimant walking with a normal gait through a pumpkin patch with children, squatting and bending with no evidence of pain, driving for long distances, carrying items, shopping, and gambling in Palm Springs, CA.
Minutes of Lien Hearing: Click here
4th Appellate District Opinion: Click here
Order Dismissing WC Case: Click here
On August 29, 2017, Jonathan Freeman, managing attorney of DGC’s San Francisco office, obtained a “take nothing” order from a WCJ at the Oakland WCAB. No reconsideration was sought, so the decision is final.
The claimed injury involved an itinerant teacher who regularly rode a bicycle to and from work and was injured during her commute by an allegedly negligent automobile driver. The accident caused injury to the applicant’s neck and left shoulder and fractured her left humerus. The employer timely denied liability for the claim based on the going and coming rule.
The employer referred the file to DGC in March of 2017, and the case was immediately fast-tracked for trial, which was completed in July 2017.
At trial, the applicant attempted to show that her home was a second worksite due to the work she did at home, including preparing lesson plans and sending and receiving emails. The applicant also tried to link her commute to her work by emphasizing the work tools and materials she transported to and from her home each day, including musical instruments and paperwork.
DGC was successful in asserting the going and coming rule to completely defeat applicant’s claim by showing that the applicant’s situation fit closely with existing case law barring regular-commute injuries. The WCJ also emphasized – as has the California Supreme Court – that there is no special exception to the going and coming rule for white collar workers who regularly take work home but are not specifically required or instructed to do so.
Findings and Award & Opinion and Decision: Click here
On September 9, 2017, having committed perjury under oath in violation of Penal Code Section 664/118(a), a hospital worker pled guilty in the Los Angeles County Superior Court to three felony counts of workers’ compensation fraud under Insurance Code 1871.4.
A specific eye injury was claimed from a fire extinguisher falling to the floor and discharging chemicals into the claimant’s eyes. Medical treatment stalled. Client referred matter to DGC’s Robert Robinson. At his suggestion, video surveillance was obtained documenting applicant’s capabilities. Claimant’s deposition was scheduled, and testimony inconsistent with claimant’s capabilities was obtained. Claimant was boxed into denying under oath any ability to drive a car or water the lawn, having previously been recorded on video doing both denied activities. Detailed advocacy letters shaping the evidence assisted the ophthalmic QME in finding no permanent ophthalmic disability and no reason for claimant’s continued claims of eye disability other than “hysterical blindness” or malingering.
Working with Probe SIR, the full deposition testimony, surveillance video, and med-legal evidence were packaged and submitted to the Los Angeles County District Attorney’s Office and shepherded through prosecutorial review. Now convicted, the claimant was ordered to pay restitution in the amount of $12,946 on or before February 27, 2018.
Felony Complaint For Arrest Warrant: Click here
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