California Workers’ Comp.; is there anything an Attorney can do?

Asked about 1 year ago - Anaheim, CA

Last time I asked the wrong question last time; I asked if there is anything I can do, I am now asking is there anything an Attorney can do to save my claim. Here are the facts again. I am pro per; I just filed my Petition for Reconsideration; I did it and it most likely will fail. I did not prove 6 of 8 orthopedic body parts; and I did not get 25% of the permanent disability that I need.
I did win the Award; my Judge found me 100% PD; but Apportioned 25%; the Award can not be apportioned under LC 4663 or LC 4664, which is the basis for my Recon.
3 of 4 orthopedic reports say all 8 body parts are industrial; my Judge only used the Defense Doctors report, saying only 2 of the 8 are industrial. If you are an Attorney who works at the Anaheim Court and think you can help, let me know and I will contact you.

Additional information

The Apportioned body parts are industrial; but have never been rated or paid; LC4664; they are with the same Employer; (Kopping). The Defense never submitted a LC4663 or LC4664 argument or justification; I submitted 3 additional arguments to Recon.

This is a 10 year old claim; the MPN(s); 3 PTP(s); plus Applicant’s QME all found all 8 orthopedic body parts industrial; the last 4 of 6 Defense Doctor reports were LC4050 reports; (all the same Doctor; and the one of the PTP(s) and the Applicant’s QME-who was see under LC4061-did write the Defense Doctor.

Attorney answers (4)

  1. Dustin Linley Collier

    Pro

    Contributor Level 9

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    Answered . I'm not sure why you think the award cannot be apportioned. All workers' compensation injuries are potentially subject to apportionment per LC 4663-4664. What leads you to believe this is not the case?

    I'm also not sure what you are referring to as the "Defense Doctors" report. When you initially file a claim, for the first 90 days the employer must provide you with the required medical care. Their insurance carrier often sets up an approved "Medical Provider Network" that you must treat with. If they do not have an MPN or fail to provide you with the information in a timely fashion when you ask for it, you can treat with a physician of your choosing.

    After 90 days, they can deny the claim and you have the right to select a "Qualified Medical Evaluator" to determine which of your injuries were industrially caused, whether the injuries are permanent and stationary, how much apportionment should be applied, etc. Is this the "Defense Doctor" report you are referring to? If so, it's inaccurate to call it a "Defense Doctor" because the QME is by definition a neutral doctor selected mutually by the parties. Indeed, if you were pro per, then the Workers' Compensation Appeals Board should have sent you a list of 5 potential QMEs upon your request and you get select any of the five you want (when represented by an attorney, the attorneys go back and forth striking names until 1 remains). In no way is this person hired by the defense.

    If you never had a QME evaluation, then you may have missed the deadline to request one. In that situation, the medical reports from the MPN physician will govern because you failed to timely challenge them. In that situation and only that situation will the reports before the WCAB be the "defense doctor's" report. You should check the deadlines for challenging the doctor's conclusions and see if you still have time to request a QME.

    If you did miss the deadline to request a QME or this was the QME's report, there's very little you can do to change the Board's opinion. 95% of the time they are going to rubber-stamp the conclusions of the QME, who after all is in place precisely to resolve these types of disputes by offering a neutral, objective medical opinion where the parties disagree about the medical issues in the case. The only way you are going to successfully challenge the QME is if you get your treating physician to write a detailed and scathing report tearing down the QME's conclusions in a manner so persuasive that the Board cannot ignore it. I've never seen it successfully done.

    Long story short, you may be out of luck and stuck with the Award you've received. I'm not in the Anaheim area, but there are a veritable ton of workers' compensation lawyers in that area. My recommendation is to look for one through the California Applicant's Attorneys Association (https://www.caaa.org/), which is comprised entirely of lawyers representing applicant's in workers' compensation disputes.

    Best of luck to you.

    The information provided in this Answer is offered for educational purposes only and should not be construed as... more
  2. Manuel Jaime Rodriguez Jr

    Contributor Level 10

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    Answered . Since you have already filed a Petition for Reconsideration, it sounds to me like the time to file has already past and an attorney cannot very likely do anything about that Petition at this time. The issue of whether 100% PD can be apportioned depends on the case. If you fall within the "other cases" of Labor Code §4662, then apportionment many times may lawfully apply. You should immediately consult with an attorney who is Certified by the State Bar of California Board of Legal Specialization in Workers' Compensation law. The details of your case are very important in determining what if anything further should be done after you receive the decision on your Petition. Do not wait until after you receive the decision because the time allowed to appeal is very limited. Good luck.

    Any person who makes or causes to be made any knowingly false or fraudeulent material statement or material... more
  3. Nancy J Wallace

    Contributor Level 14

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    Answered . There likely WAS something an attorney COULD have done much earlier.

    Like 'fix' the treating physician's report BEFORE it was submitted to the judge.

    Sounds like it was not the 'best evidence' because the judge decided the defense report was the more accurate measure of your disability.

    But once you submitted the evidence, the damage was done. Then, once you let the 20 days from the Findings & Award pass, the deadline to find any error by the judge was done.

    I practice at Anaheim every week, but I don't see any way to 'pull a rabbit out of a hat' on this one; sorry.

  4. Brett A. Borah

    Contributor Level 20

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    Answered . Mr. Collier certainly gave you a pretty complete answer. The bottom line, however, is that we still don't have enough information to give you a very complete answer. Best idea is for you to get on the phone and start calling attorneys. I wouldn't get my hopes up too high as you've cast the concrete in your case and it's nearly hardened before you've asked for help.

    Again, start your search for a good attorney in the O.C. here at www.avvo.com or at www.caaa.org.

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