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Workers' Comp won't fix DH's knee, but he's in pain. What next? California

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  • #16
    Originally posted by CAIW View Post
    There are programs however that help with IW's and COBRA, the info here may help you with your GHP/Group Health Plan issues. http://www.hmohelp.ca.gov/dmhc_consu...p_hipaacp.aspx

    Understand though, you need to get on your attys' *** on filing the DOR...nicely of course. And this surgery isn't likely to take placy by March. Just be prepared.
    Thanks! At first, my husband was trying not to "bug" the attorney, but now he's in there at least once a week checking in -- but with the paralegal.

    That COBRA/continuation info makes me feel a lot better. Thanks SO much. I couldn't understand, though, from reading it, whether the right to COBRA/continue applies to the entire family on the policy, or just the employee. And typically, COBRA costs about twice what one was paying in premiums, right?
    Last edited by TAcalif; 12-26-2010, 09:50 AM. Reason: typo

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    • #17
      Any member of the family who was covered on the policy at the time the active coverage ended, is eligible for COBRA.

      If you can get COBRA for only twice the premium you were paying initially, you're doing well. COBRA costs are generally 102% of what the employer is charged; and most employers pay more than 50% of the premium.
      The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

      Comment


      • #18
        The COBRA rules allow the EE to continue participation in the GHP/Group Health Plan as provided by the ER. The difference is, the EE/IW pays the full premium.
        You may be able to do better on your own with a private pay policy... I'd kinda doubt that however, as groups are generally less overall for the same level of benefits

        If you read the info at the link I provided, I believe you must exhaust your benefits under the federal COBRA rules before the Calif assistance program steps in.
        Health care insurance is no more easily understood than any other liability coverage you purchase.
        Few, very few in fact, ever actually know what the coverage is they are paying a premium on until the day comes where its necessary to file a claim. Only then to find the coverage/benefits are much, much less than expected.

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        • #19
          So.... we have to pay COBRA and it's $1,225 per month. Kill me now.

          Anyway, WC is STILL dragging its feet on the whole surgery thing. They've had two of their remote doctors override the original doctor they sent my husband to. Our attorney is supposed to be getting the doctor (who is standing by his assertion that surgery is the only option), WC company and the QME panel together, I think, but they aren't all available at the same time.

          We need to get this surgery happening ASAP, because those COBRA payments will drain our savings within three months. At one point, they (employer's HR) said he could go back on limited duty and reset his insurance eligibility but now they (employer's COBRA administrator) says that's not the case. We'll have to pay COBRA for a year, or until he's back at work.

          The employer's COBRA administrator said today that we shouldn't blame the WC company (despite all the online stories and complaints), because there's "nothing in it" for the WC company in denying the surgery, as it's "not their money." That the WC company's experts/doctors must genuinely believe surgery is not necessary.

          What do you think of that? Thanks!

          I can't believe this has been going on for a YEAR. I am SO glad we hired a lawyer. Anyone reading this, lawyer up if it's advised!! I wish I'd listened to the experts on this board sooner and maybe we wouldn't be in as big of a mess now.

          ETA: Meanwhile, they're pumping him full of cortisone shots for the pain. Lame. Literally.
          Last edited by TAcalif; 02-01-2011, 01:18 PM.

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          • #20
            If your husband goes back on limited duty but enough hours to qualify for insurance, then the HR department is correct.

            I have had people off on worker's comp and when they return to light duty but full time, they receive insurance as before they were injured.

            Comment


            • #21
              It is extremely common for any Workers Comp settlement to include a resignation. I have done numerous settlements over the years with different WC carriers, and never saw one which did not include a resignation.

              You need to be prepared that may be part of any settlement agreement.
              I find that the harder I work, the more luck I seem to have.
              Thomas Jefferson

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              • #22
                Thanks!

                They (employer's COBRA administrator) now say that limited duty is only allowed if he is expected to immediately transition to full duty. And he would not be able to do that yet, because if he went back he'd just have to leave again for surgery and need transitional duties after that.

                Ack! You're freaking me out about the resignation thing. Someone earlier on here said not to worry about that. If he loses this job we are screwed, bankrupt, OVER. The insurance is KEY. I can't get anything through my work and he has pre-existing conditions and we can't buy him a private policy at any price. And we have a kid.

                ETA: Our lawyer also said don't worry about him not being able to keep his job.
                Last edited by TAcalif; 02-03-2011, 08:16 AM. Reason: add info

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                • #23
                  I am surprised the Cobra administrator is giving you any type of advise. That should be coming from HR. The company has a real interest in getting your husband back to work, even on light duty.

                  I know of no such regulation which states your husband has to be transitioning back to full duty in order to come off Cobra.

                  Comment


                  • #24
                    In most GHP policies the carrier writing that coverage requires only 'full time' employees participate. Full time being defined as 32 hours/week or more.
                    That has nothing to do with light duty, modified work, transitioning issues...strictly time on the job. The only IC that cares what the job classification, or duties/function is would be the WC carrier. Premiums are based on job classification/description.
                    Ack! You're freaking me out about the resignation thing.
                    Voluntary resignation would only be an issue where there is a settlement by C&R/Compromise and Release. The IW is paid a lump sum cash payment for consideration to drop any/all further claim for benefits due to this injury.
                    The reason for voluntary resignation is purly for liability to the ER/IC. After you take that cash, there is the possibility of reinjury/new injury, and new claim.

                    There are specific rules for return to work in Calif WC. Mandates on the ER, triggers for additional benefits, statutory requirements to engage in the interactive process.

                    There are 3 types of resolution in a WC claim in Calif.
                    One, Stipulation w/Request for Award & Order...the parties agree to the body part/s, indemnity due and any other issues requiring resolution. IE. Mileage reimbursement, penalties, atty fees etc.

                    Two, a C&R, The parties agree/compromise to all outstanding issues, the IW accepts liability for any/all future medical care, sometimes a voluntary resignation but not mandatory, and a cash payment to release the ER/IC.

                    Three... a trial. When the parties cannot agree, the claim goes to trial. A WCAB judge will issue a Finding w/Award & Order. Basically a 'forced stipulation'. PD/WPI rating and indemnity are determined, access to medical care remains open, subject to the same prior authorization process as during the open claim. That is the only option for a judge in resolving a claim. There is no resignation in a F&AO.
                    and he has pre-existing conditions and we can't buy him a private policy at any price. And we have a kid.
                    You should be one of the most happy families with the "Obamacare" provisions.
                    Keep in mind though, the work injury is not a pre existing condition for health coverage considerations. WC is about liability, so is the GHP or private pay policy.

                    There is info here you may be interested in http://www.disabilitybenefits101.org/

                    Info on RTW laws in Calif here http://www.edd.ca.gov/UIBDG/Preface_PR_25.htm

                    Info on Managed Health Care, group health plans, HIPAA and COBRA is here http://www.hmohelp.ca.gov/dmhc_consu...p_hipaacp.aspx. You may be eligible for help with your COBRA, with a conversion plan, but you have to use up the federal provisions first.
                    Anyway, WC is STILL dragging its feet on the whole surgery thing. They've had two of their remote doctors override the original doctor they sent my husband to. Our attorney is supposed to be getting the doctor (who is standing by his assertion that surgery is the only option), WC company and the QME panel together, I think, but they aren't all available at the same time.
                    Not clear here on what the difficulty is.
                    There is a specific process in getting prior authorization for surgery to the knee. (spine is even more specific)
                    The treating physician/PTP, recommends surgery to CA, CA approves within 5 days, or must submit to UR. UR has max of 14 days from date CA rec'd the request.
                    If the ER/IC disputes through the UR process, the you must be provided with a PQME list, or AME process when you have attorney. There are definite timeframes to the medical/legal process too.
                    IF the PQME/AME opines favorable to the IW, then benefits/medical care must begin, or they must file a DOR for expediated hearing.
                    Our attorney is supposed to be getting the doctor (who is standing by his assertion that surgery is the only option), WC company and the QME panel together, I think, but they aren't all available at the same time.
                    I think my confusion here is in your not identifying the doctors involved.
                    Apparently your atty is looking to depose the QME/AME (?)
                    Which isn't really necessary if the opinion/report is in your favor.
                    If the report was negative to you, the atty should be getting another report from the PTP recommending surgery, and filing the DOR for hearing for you. The WCAB judge would decide the issue based on the medical reports.
                    There is no reason for this delay in getting a surgery approved.

                    Depositions are a good way for attorneys, for either side, to build billable hours. The results of a depo do absolutely nothing to affect any benefits or treatment. Only a supplemental report by the PQME/AME would change the status in a claim, or a judge. A depo is conducted to develop the record, basically a cross examination by the attys.
                    Your atty could write a letter to the Dr, requesting clarification on any issue, with a 'cc' to the defense and get a supplemental report to resolve the dispute. There is a great thread here discussing these depos http://forums.workcompcentral.com/vi...0659b943819b06
                    Drs do not like being cross examined by "non medical'' persons in their medical opinions.

                    And... there are specific Title 8 CCR's for med/legal process, and discovery. http://www.dir.ca.gov/t8/ch4_5sb2.html, there are ways for your atty to move this forward. Including an order to compel by a WC judge.

                    Comment


                    • #25
                      Thanks! I wonder how we could "fight" the company regarding getting him back on limited duty if there's no law against it.

                      Originally posted by CAIW View Post
                      In most GHP policies the carrier writing that coverage requires only 'full time' employees participate. Full time being defined as 32 hours/week or more.
                      With this employer, 24 hours a week is the threshold for insurance.

                      Originally posted by CAIW View Post
                      Two, a C&R, The parties agree/compromise to all outstanding issues, the IW accepts liability for any/all future medical care, sometimes a voluntary resignation but not mandatory, and a cash payment to release the ER/IC.
                      We don't care about getting any cash (though I assume the attorney would like that). There's no way we want to end this with us being on the hook for future medical costs, especially if they're excluded from any future policy we might have.

                      Originally posted by CAIW View Post
                      You should be one of the most happy families with the "Obamacare" provisions.
                      Yeah, we're holding our breaths till 2014 and hoping the health care law doesn't get overturned.

                      Originally posted by CAIW View Post
                      Not clear here on what the difficulty is.
                      One element of it is that the first doctor was on vacation and missed a deadline and has to re-send his letter and start the clock over on that.

                      The lawyer says the WC insurer is simply not meeting the mandated deadlines, and they're thinking about forcing them to the court/hearing setting. I believe this is the DOR, or perhaps the order to compel. These both sound familiar.

                      It sounds like the lawyer just wants the doctor to clarify in person (or phone) to WC why he stands by his surgery opinion. I don't think it's a formal deposition. So far, the doctor doesn't seem offended by this, just busy.

                      The WC insurer now says they don't enough info from the first doctor and that that's part of why they've denied it twice. When I say "first doctor," I mean the local orthopedic surgeon that WC sent us to. He said my husband definitely needs surgery, and he wrote the orders it. Then we started getting the denial letters for the surgery, recovery ice pack thing, etc. Two doctors we don't know then wrote opinions on the WC insurer's behalf, stated that after looking at the first doctor's reports, insurance is not indicated. They didn't do this at the same time; it was a few months apart.

                      Comment


                      • #26
                        CA is not my state but I have never heard of an employee who can force a company to return them to light duty. It is the company's decision. Sometime a company will not allow any light duty and sometimes the company cannot accomodate the restrictions.

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                        • #27
                          That's right HR... there is no law that requires any ER to make light duty/modified work available. The mandate is for the ER to address RTW issues and valid job offer at MMI. Within 60 days of a Dr determination of P&S/MMI.
                          Thanks! I wonder how we could "fight" the company regarding getting him back on limited duty if there's no law against it.
                          IW's often ask "is this legal?"... or 'Can they do this...?" It's not about a law for/against light duty... because there may not be a law against something doesn't mean there is a law for it either. Light duty is among those issues you cannot legislate one way or the other, this is simply a business decision left to the ER.
                          We don't care about getting any cash (though I assume the attorney would like that).
                          Cash lump sum vs indemnity benefits paid bi weekls don't control the payment of atty fees. Those fees will be paid one way or the other.
                          It sounds like the lawyer just wants the doctor to clarify in person (or phone) to WC why he stands by his surgery opinion. I don't think it's a formal deposition. So far, the doctor doesn't seem offended by this, just busy.
                          It doesn't work that way.
                          WC is a system of laws.. the ER/employer, IC/insurance company are one in the same once a claim is accepted. They...ER/IC are the ones who pay benefits, and dispute/deny though the UR process.
                          Your PQME/AME as the case may be, providing a statement over the phone means nothing. If it's not in writing, "it" does not exist. If there is clarification necessary by a PQME/AME... it must be done in writing, by supplemental report if necessary. That is the process. The only phone discussion in WC would be by your PTP and a UR Dr to discuss a treatment plan.
                          The WC insurer now says they don't enough info from the first doctor and that that's part of why they've denied it twice. When I say "first doctor," I mean the local orthopedic surgeon that WC sent us to.
                          Still confusion here... in a WC claim, you have ONE PTP, that Dr controls the diagnosis, treatment plan, and certification for benefits. When there is a PR-2 request for treatment/surger submitted to the CA, there are 14 days to authorize. (or modify/delay/deny). If the CA needs additional info, that must be requested from the PTP within 5 days. If the PTP cannot be contacted, or doesn't provide the info, the request will be denied.
                          "WC" doesn't send you to any Dr. There is one request at a time for any treatment.
                          Two doctors we don't know then wrote opinions on the WC insurer's behalf, stated that after looking at the first doctor's reports, insurance is not indicated. They didn't do this at the same time; it was a few months apart.
                          The ONLY Dr's who would write any report, where the IW has not been seen face to face would be the UR Dr. And that would be in response to a PR-2 submitted by your PTP.

                          As with any medical evaluation/report, the narrative should be written so any Dr reading what the treater says, should be able to understand the diagnosis, and recommended treatment plan, including the rational.
                          A PR-2 Request for Treatment in the Calif WC system is a stand alone document. The requesting PTP is supposed to provide to the CA/UR Dr, any/all medical records and rational along with the appropriate treatment guides why the treatment is being requested. It's not ususual for PTP's to fall down on this more often than not.

                          Your never see a medical/legal report provided by a PQME/AME without the IW being seen in person. It would not be admissable...with the exception of a supplemental for clarification purposes. But the IW would already have been seen and evaluated.
                          I believe this is the DOR, or perhaps the order to compel. These both sound familiar.
                          That is the process. When the defense is non-compliant to any mandate, you file a DOR/Declaration Of Readiness to proceed requesting a expediated hearing, where the issue is medical care.

                          There may be more here than we know... knees are complex issues, surgeries are not always the answer, and if there is recommendation for TKR/Total Knee Replacement and the IW is not of appropriate age, it will be denied. That's just one of the reasons UR denies.

                          Comment


                          • #28
                            Originally posted by CAIW View Post

                            There may be more here than we know... knees are complex issues, surgeries are not always the answer, and if there is recommendation for TKR/Total Knee Replacement and the IW is not of appropriate age, it will be denied. That's just one of the reasons UR denies.
                            Wow -- it's been almost a year since I last posted on this thread and the issue is still not resolved! I've been afraid to post here because our attorney got us all nervous about putting stuff online.

                            Anyway, my husband finally had surgery this summer but it did not resolve the issue; he is still in pain pretty much constantly. He's back to work, though. He was on transitional duty but had to suck it up and start working more hours because they were going to drop our health coverage.

                            The QME gave his report and ultimately, recently, his amended (final) report. He says my husband has reached maximum medical improvement (not sure how that's possible, but whatever) and that the injury was mostly due to what happened at work, but that my husband was somewhat predisposed to have something like this happen because of a genetic condition we were unaware of, and the fact that he is quite overweight (though he has lost weight since the injury). The QME also said that my husband will never be relieved of pain until he gets a total knee replacement. This is also being blamed in part on his weight (approx. 275). As he is only 46, this is a tough decision and my husband is inclined to "tough it out" for five years or so.

                            What I need to know is:

                            -- We feel that we absolutely have to get "future medical." There's no way we could pay for a TKR on our own, and private insurance would never cover what's been deemed a work injury, right? How hard will it be to get WC to come through with a total knee replacement, especially years in the future? What are the pros and cons to getting future medical?

                            -- Any tips on getting around the California reform-based limit of physical therapy sessions over "the life of the injury"? It's the only thing that makes my husband feel better, but they charge $200 per session if you pay out of pocket. We're trying to get private insurance to step in but so far no luck there.

                            -- How likely is it that the employer will try to get him to resign, especially as a condition of agreeing to future medical? The job market is terrible here and my husband wants to keep his job, even though it's painful.

                            Also, we have little to no interest in getting any money out of this -- even though this injury has had a huge financial impact to our family. But with that being said, the compensation tables and stuff are very confusing. Do you have any tips on assessing what might be a fair settlement, especially if he gets future medical?

                            The thing that seems most unfair about this process (besides the pain) is that because the WC company dragged its feet so long, we had to pay to COBRA our insurance for several months, totaling nearly $7,000 EXTRA out of our pockets that we apparently have no recourse to get back. We feel very angry about this.

                            Thanks so much for all your help. I never imagined this would drag on so long.

                            Comment


                            • #29
                              Closing out the PD indemnity leaving the medical open is an option, and being done more and more
                              But...that may also include a voluntary termination. ER's are not quick to have a IW around with a lump of cash in their pocket.
                              And....if/when he were to go to work with another ER in a job that fits his permanent restrictions, the carrier could deny medical/TKR later on, claiming aggreviation/reinjury in the new job/ER.
                              The QME also said that my husband will never be relieved of pain until he gets a total knee replacement. This is also being blamed in part on his weight (approx. 275). As he is only 46, this is a tough decision and my husband is inclined to "tough it out" for five years or so.
                              Pain would be addressed in the PD/WPI rating... as such, there can be an additonal max of 3% add-on. Have to assume this has already been included in the final PD/WPI. That % will be the basis for any premanent disability indemnity due.
                              When he was released at MMI, and that simply means his condition is stable, not expected to change in the next year or so. With or without treatment. Doesn't mean he can't continue to treat with pain management to "cure or relieve from the effects of the injury".
                              His ER was/is requied to address a valid job offer that fits his restrictions....within 85% of his AWW, to last at least a year. So, yes, the ER does have an out here.

                              The COBRA is a mandatory benefit once the 12 weeks of FMLA runs out. The carrier writing the GHP/Group Health Plan generally requires only full time EE"s participate in the GHP....full time being at least 32 hours/week. No, you cannot recoup the COBRA premiums.
                              How hard will it be to get WC to come through with a total knee replacement, especially years in the future? What are the pros and cons to getting future medical?
                              You have future medical once there is a Stipulation or Finding by a judge.... as I said, future medical can be left open in a C&R, but there really isn't much incentive for the carrier to cash out. You will not be paid sufficient funds to pay for the TKR.
                              IE. I have a friend with a knee injury, a couple years after the Stipulation, he retired....about 10 later, required the TKR, and the carrier paid full. But, he had not returned to work.
                              Future medical covers the "natural progression of the injury/illiness/disease". Basically, couch potato while you wait it out. Your GHP, nor any private health coverage will cover...
                              Any tips on getting around the California reform-based limit of physical therapy sessions over "the life of the injury"? It's the only thing that makes my husband feel better, but they charge $200 per session if you pay out of pocket.
                              Not even a judge can award additional PT. The ER/IC can, in writing through the UR process....if he had surgery, the MTUS/treatment guides provide for additional PT, the surgeon can RX that, beyond the 24 visist cap.
                              If you are to pay out of pocket, look around, you can negotiate PT packages....not all are 200/visit. (actually, IMHO, that is excessive) And, there are home exercises he can be taught.
                              The thing that seems most unfair about this process (besides the pain) is that because the WC company dragged its feet so long, we had to pay to COBRA our insurance for several months, totaling nearly $7,000 EXTRA out of our pockets that we apparently have no recourse to get back. We feel very angry about this.
                              I doubt there would have been any way possible for him to complete his treatment within the 12 weeks of FMLA....be happy you had the option of COBRA... not everyone does.

                              You need to sit down with your attorney, face/face and have a clear discussion of what his options are in resolving this claim. I think you are right on looking for the future medical. Even if he went to work elsewhere, the new ER WC carrier, and this one could be enjoined in the liability. Let them work that out when the time comes.

                              I'm sorry I can't offer you a rosier picture here... but oft times there simply isn't one. Any injury can be life altering...

                              BTW... the ER/IC can be responsible for a weight loss program... talk to his PTP about getting this authorized. Excessive weight gain due to injury is fully compensable, even if you have to go back to PQME, or a WCAB judge.

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