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NANCY WALLACE, ATTORNEY AT LAW: YOUR TRUSTED ATTORNEY

Can They Do That?

Insurance Adjusters lie that you cannot switch doctors when you can.  Yes, they can do that.

Adjusters only send you to doctors they know will send you back to work, even in pain.  Yes, they can do that.

Adjusters only send you to doctors they know will avoid tests like MRIs and CTs scans.  Yes, they can do that. 

FREQUENTLY ASKED QUESTIONS and other good stuff.

Does workers' compensation cover only injuries or does it also cover long-term problems and illnesses?

Your injury need not be caused by an accident -- such as a fall from a ladder -- to be covered by workers' compensation. Many workers receive compensation for injuries that are caused by overuse or misuse over a long period of time -- for example, repetitive stress injuries such as carpal tunnel syndrome or back problems. You may also be compensated for some illnesses and diseases that are the gradual result of work conditions -- for example, heart conditions, lung disease, and stress-related digestive problems.  For more information on repetitive stress injuries, see the Nolo article Repetitive Stress Disorders: The Basics.

Are You Covered by Workers' Compensation?

Most workers are eligible for workers' compensation coverage, but every state excludes some workers. Exclusions often include:

  • business owners

  • independent contractors

  • casual workers

  • domestic employees in private homes

  • farm workers

  • maritime workers

  • railroad employees, and

  • unpaid volunteers.

Check the workers' compensation law of your state to see whether these exclusions affect you.

Federal government employees are also excluded from state workers' compensation coverage, but they receive workers' compensation benefits under a separate federal law.

In addition, some states do not require workers' compensation coverage of employers having fewer than a designated number of employees -- three to five, depending on the state. So, if you work for one of these employers, you may be excluded from the state program.

I need money; where do I go?

If you have access to a doctor who will agree you cannot work (or can't work full duty yet), RUSH an application for State Disability Insurance to that doctor.  Get the SDI Application form at http://www.edd.ca.gov/Disability/DI_How_to_File_a_Claim.htm

When your employer refuses to let you return to FULL* duty, you are UNEMPLOYED (not disabled).  File for Unemployment Insurance at the EDD here:  http://www.edd.ca.gov/Unemployment/default.htm                                        *no restrictions, no modifications, full work

When your employer refuses to provide Light Work (Modified Duties) or only provides such work for a couple of hours per day, (1) fax a letter to the Insurer explaining there is no (or limited) Light Work and you require Temporary Disability payments immediately, then (2) file for an Expedited Trial regarding Temporary Disability only before the WCAB:   http://www.dir.ca.gov/dwc/forms.html

What's the deal with the Claim Form, QME and UR?

1. Do I need to fill out the Claim Form my employer/doctor gave me?
2. What if my employer didn’t give me the DWC 1 claim form?
3. I’ve been to the doctor. Why do I need to see a QME?
4. What qualifications do QMEs have?
5. Who makes the decision about going to a QME?
6. What’s the difference between a QME and an AME?
7. How do I request a QME exam?
8. What difference does it make who submits the form to request the QME?
9. Is there anything I can do if I disagree with what the QME says?
10. I’m in a medical provider network (MPN). Does this process apply to me?
11. I still have questions. Who do I contact?

Q: Do I need to fill out the Claim Form my employer or doctor gave me?
A: Yes, if you want to make sure you qualify for all benefits. Your employer should you form (DWC-1) within one day of learning you were injured. Filling out the DWC-1 form starts your case. State law also lays out benefits you may get once you file the Claim Form with your employer. Those benefits include

  • A presumption that your injury was caused by the job if your claim is not accepted or denied within 90 days of giving  form to your employer

  • Up to $10,000 in treatment (within guidelines) while the adjuster decides about your claim

  • An increase in your disability payments if they’re late 

If you do not file the claim form within a year of your injury, you may not be able get benefits.

Q: What if my employer didn’t give me the Claim Form ?
A:  You can get the form from the DWC Web site at www.dir.ca.gov/dwc/.    Click on “forms.”  Or get one at your nearest Workers' Compensation Appeals Board.

The name, address and phone number of a person to provide the Claim Form is supposed to be posted at your workplace in the same area where other workplace information, like the minimum wage, is posted.   But employers frequently overlook this law.

Q: I’ve been to the doctor. Why do I need to see a QME?
A:   The adjuster will likely disagree with what the doctor says.   YOU could disagree with what the doctor wrote.  The judge cannot decide on your words.  There must be medical reports to help the judge decide.   You might disagree over:

  • Whether or not your injury was caused by the job

  • Whether you need treatment for this injury

  • What type of treatment is anecessary 

  • Whether or not you need to stay home from work to recover

  • The amount of Permanent Disability

Q: What qualifications do QMEs have?
A:  A QME must be a physician licensed to practice in California. QMEs can be medical doctors, osteopaths, chiropractors, psychologists or acupuncturists.  The Medical Unit of the Division of Workers' Compensation tests doctors to make certain they can write a Workers' Compensation report.

Q: Who decides I should go to a QME?
A: Either you or the adjustor can request a QME exam. You might request a QME exam if:

  1. Your claim is denied and you need evidence to prove that injury is due to the job;

  2. You need evidence to outline permanent disability and specific needs of future medical treatment;

  3. You disagree with what your doctor says about your medical condition;

  4. You disagree with a Utilization Review doctor who never examined but denied your treatment.  

  5. The Medical Unit will provide a list of three doctors called a Panel. One physician from the list is chosen to examine you and make a report on your condition.

Q: How do I request a QME examination?
A: Get a "Request for Qualified Medical Evaluator” form from either the adjustor or the DWC website, and mail it to the Unit in Oakland. 
NOTE: If your employer  sends you a “Request for Qualified Medical Evaluator” form, you have 10 days from when you get the form to mail it to Oakland.  If you do not submit the form within 10 days, the adjustor  administrator will do it and choose the medical specialty of the doctors on your panel.

Q: What difference does it make who submits the form to request the QME?
A: Whoever submits the request form picks the specialty of the doctor that does the exam. If you wanted a Pain Specialist (for relief without surgery) to evaluate you but you don't get the Request Form to Oakland in time, and the adjustor picks Orthopedics, you're stuck with 3 orthopedic surgeons from which to choose.  When you receive the panel, you will also receive a letter that explains how to set up the QME appointment and how to provide the QME with important information about yourself.

Q: Is there anything I can do if I disagree with what the QME says?
A: Yes, but you have a short time limited amount of time to decide if you dispute the QME’s finding.   When you receive the report, read it right away and decide if you think it is accurate. If not, and you have an attorney, your attorney should take that doctor's deposition and confront him under oath with the report's inaccuracies.

If you don’t have an attorney, write the adjustor that you dispute the QME's findings.   A report from the Treating PHysician could help you dispute the QME report, or 

Q: What’s the difference between a QME and an AME?
A:  A QME is picked from a list of state-certified doctors issued by the Medical Unit.    The doctor your attorney and the adjustor or defense attorney agree upon  is  an Agreed Medical Evaluator (AME).

Q: I’m stuck in a medical provider network (MPN). Does this process apply to me?
A:   Sort of.  If the employer didn't notify you of the MPN or the Insurer won't give you access to the MPN to pick a doctor, cases have held you can get a doctor outside the MPN, but be prepared for a trial. 

If your MPN doctor requests treatment  that treatment gets denied by the insurer's Utilization Review (UR) physician, you have the right to be evaluated by a QME.   (The claims administrator is required to advise you of this right, but the advisement is usually unintelligible.)

 Then, when you disagree with an MPN doctor about  treatment,  you can change to another physician on the MPN list.  If you still disagree, you can have an independent medical review (IMR) to resolve the dispute.

Q: I still have questions. Who do I contact?
A: If you have questions about  a QME panel, contact the DWC Medical Unit. Reach them by phone at 1-800-794-6900 or by writing to:

Division of Workers’ Compensation Medical Unit
P O Box 71010
Oakland CA 94612

But if you STILL can't find your answer, Email Nancy Wallace nancywallace@imhurt.info, or call 909-381-2771.

Who cares about MY nightmare created by the legislature's Workers' Compensation Act?

1.  They don't really care, but you should still give them a piece of your mind:

Department of Industrial Relations (DIR)
Office of the Director
455 Golden Gate Avenue
San Francisco CA 94102   info@dir.ca.gov

Governor's Office:

Governor Arnold Schwarzenegger
State Capitol Building
Sacramento, CA 95814
Phone: 916-445-2841
Fax: 916-558-3160 ( new number )

State Senate Committee on Industrial Relations:

Members:
Senator Carole Migden (Chair)
Senator Mark Wyland (Vice Chair)
Senator Dick Ackerman
Senator Sheila Kuehl
Senator Alex Padilla
Phone:
(916)651-1556
1020 N Street
Room 545
Sacramento CA  95814 

Assembly Committee on Labor and Employment Members:

Swanson (Chair)

Strickand (Vice Chair)

DeSaulnier

Fuentes

Gaines

Laird

Leno

Ruskin

ADDRESS:

1020 N Street, Room 155

Sacramento CA 94814.

Phone: 916-319-2091.

Won't the State guide me?

Here's what The State has to offer:  https://www.dir.ca.gov/dwc/InjuredWorker.htm

Can they lay me off or fire me when I'm disabled?

It all depends on the absence or presence of one crucial word: "because." If your employer laid you off because you were on workers' compensation leave, that might indeed be a case of illegal retaliation. However, if your employer would have laid you off even if you were still on the job, the fact that you are on workers' comp leave wouldn't prevent your employer from laying you off. If that sounds like legal hairsplitting, read on.

All states have laws that prohibit employers from retaliating against employees who ask for and/or receive workers' compensation benefits. An employer cannot fire, demote, harass, lay off, or otherwise harm such employees because they are exercising their rights under the workers' comp system. An employee who has been the victim of unlawful retaliation can sue over this and win.

However, no law requires employers to give special treatment to employees just because they're on workers' comp leave. An employer can fire an employee for poor performance even if the employee has filed a workers' comp claim. And an employer can include an employee in a layoff, as long as the employee wasn't chosen because he or she was on workers' comp leave at the time. 

If you believe you can prove you were targeted for the reduction in workforce specifically because you were on workers' comp leave, contact an attorney right away, because you need to gather your co-worker witnesses and evidence immediately.

 

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Contact

OFFICE 909-381-2771   FAX 909-381-2791   MOBILE 909-379-9720

Address

22365 Barton Road
Grand Terrace, CA 92313

©2020 by Nancy Wallace, Attorney at Law.