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  1. #1
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    Default Back Injury: Doctor Says Permanent And Stationary With 5 Bulged Discs - Now What

    I am a new member to this site but have been reading the threads on here for awhile now. I am twenty-four years old, living in the San Francisco Bay Area and I work in construction. About a year ago I suffered a back injury while working on a job site, the foreman witnessed the injury and informed the owner after which he sent me home due to my inability to walk within a few minutes after the accident. The following week I returned to work still barely able to walk or stand upright at which point my employer refused to give me the Employee’s Claim to Worker’s Compensation, therefore forcing me to work for two months with this injury as I could not afford to miss any work. After two months with my symptoms getting worse I informed my doctor about what happened with my employer refusing the paperwork, at which point he gave me the Claim form and I took it into work. My employer had his secretary falsify the date of injury so that it would look like he was submitting the Claim form on time, despite my objections and insisting on the correct date of injury. I informed the insurance adjustor at the start of the claim about the employer’s fraudulent date. When I finally got the much needed MRI it showed disc bulges at 5 levels with nerve interference at two levels. Since then I have been going through the joke that is Worker’s Comp. healthcare and now after the four authorized PT visits at a time followed by two weeks of losing hard earned results while waiting for approval on more sessions my doctor has declared me permanent and stationary. I feel that this PNS is premature but I am going to accept this because I am tired of their red- tape and shabby medical treatment. At the beginning of the claim because of my employer’s fraudulent date I had a QME exam which states that there is not any issue of apportionment and was 100 percent caused by the work injury. Every doctor I have seen is in agreement that I cannot return to construction. What should I be looking for in a Permanent Disability Rating considering this is five bulged discs, not just one, I have since developed severe depression symptoms, am in constant pain, have suffered massive loss of strength particularly in my lower extremities and cannot return to construction, let alone Thai-boxing, weight-lifting or other long time physical personal hobbies? Also should my settlement factor in my employer’s felony negligence as I am now left wondering if I had actually seen a doctor immediately after the injury if I would have had better prospects for recovery and returning to my line of work, since my doctors have implied but will not flat out say that the two months of hard physical work after the injury most likely caused more damage than the initial injury or should I file a separate lawsuit against my employer for this issue as well as termination of my employment and health benefits while still being treated for the work injury? If I cannot pursue action against my employer, as far as lawsuits go, is there at least a watchdog agency or government office that I can turn him in to? The last question I have is while I am waiting for this to be settled there is no way I can live on the permanent disability payments without me and my college student wife going homeless and losing everything we have worked so hard for first, since it is MY BODY and I have financial obligations to support my family if I choose to ignore doctor’s recommendations and work in construction as it is the only field I am trained in and can earn enough money in will this jeopardize my settlement and in doing so I will probably worsen my condition will the insurance company be liable for further damage to my back? Sorry for the long post, but any input or advice will be greatly appreciated.
    Thank you

  2. #2
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    Default Re: Back Injury:doctor Says Permanent And Stationary With 5 Bulged Discs In Back Now

    If you complained to the doctor about all the things you could not do because of the work injury and then you go out and do them and they have pictures of you doing them you'll have a difficult time getting much of a settlement.

  3. #3
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    Default Re: Back Injury:doctor Says Permanent And Stationary With 5 Bulged Discs In Back Now

    If you complained to the doctor about all the things you could not do because of the work injury and then you go out and do them and they have pictures of you doing them you'll have a difficult time getting much of a settlement.
    ABSOLUTELY CORRECT... do not go and do those things you claim as a basis for your injury/disability... the ER/IC will claim you are NOT as ''disabled'' as your say you are...therefore NO (potentially) settlement, just go away.

    While there may be a penalty to your ER for a delay in providing the first report of injury form, what he provided as a DOI doesn't really matter at this point.. YOU have corrected that issue with the CA/IC...and there is a 1yr SOL on reporting an injury by the IW.
    Your ER didn't gain any ground by his actions here...even IF you were to have been seen immediately by a doctor, there is no real evidence that your situation/injury would have turned out otherwise to what it is.

    As to your injury, PT is limited to 24 visits for the life of your claim, a lot of PT may not be the appropriate treatment for your injury...what you have is basically a ''soft tissue'' injury, and the treatment is 'limited rest', not staying in bed, but not over exerting your 'body part' either.
    Surgery would not be an issue at this time....and neither would there be much of a 'permenant disability' factor.

    In the PQME report, where the issue of approtionment is discussed and says ''there is no apportionment'' this is 100% work related, that means there are no other factors you may have/had that contribute to your ''permenant disability'' rating.

    my employer refused to give me the Employee’s Claim to Worker’s Compensation, therefore forcing me to work for two months with this injury as I could not afford to miss any work.
    Sorry, no one ''forced'' you to work 'in pain'...you could have said, ''no, I need to see a doctor now''... "Force" is a big word, and doesn't apply...

    I feel that this PNS is premature but I am going to accept this because I am tired of their red- tape and shabby medical treatment.
    If you disagree with the P&S/MMI status, you go BACK to the PQME and get a supplemental report addressing the disputed issue.

    You didn't see the QME because of your ER's ''fraudlent'' DOI...you saw the PQME because there was/is a disputed medical issue in your claim...
    BTW, who made the selection on the PQME...you or the CA ?

    What should I be looking for in a Permanent Disability Rating considering this is five bulged discs, not just one, I have since developed severe depression symptoms, am in constant pain, have suffered massive loss of strength particularly in my lower extremities and cannot return to construction, let alone Thai-boxing, weight-lifting or other long time physical personal hobbies? Also should my settlement factor in my employer’s felony negligence as I am now left wondering if I had actually seen a doctor immediately after the injury if I would have had better prospects for recovery and returning to my line of work,
    A PD/WPI rating will be compiled based on the medical evidence of your injury. The state uses the AMA 5th edition to rate injuries for WPI now...your PQME will do the rating, if you disagree you can get the rating recalculated by the DEU, that will be a formal rating that a judge would use.

    PD/WPI rating are ''difficult'' to understand to say the least, but you can read about it here...http://www.dir.ca.gov/dwc/PDR.pdf

    Is your claim filed with the WCAB..? Has there been a Application for Adjudication filed..? That is the only way the WCAB would have jurisdiction over the claim and be able to 'legally' resolve any issues.

    my employer’s felony negligence
    That makes it sound good when you say it out loud, but ...
    Your exclusive remedy in an industrial injury, is the WCAB/appeals board...and your entitlement to WC benefits...treatment/wage loss(while you recover)/and a ''award'' if there is PD.
    If you cannot RTW in your usual and customary capacity, you may be entitled to a SJDV...a retraining voucher for job skill honing/retraining/job placement assistance... that would be a min of $4K max of $10K, but no cash payments.

    let alone Thai-boxing, weight-lifting or other long time physical personal hobbies?
    Sorry, no compensation for ''pain and sufferning/lost wages/loss of 'hobbies'..."
    Your spouse may have a claim for ''loss of consortium'' due to your injury...IF there is provision under Part 2 of the ER's WC coverage/policy...talk to an attorney about that one...

    What should I be looking for in a Permanent Disability Rating considering this is five bulged discs, not just one,
    You can read about PD/WPI ratings here...http://www.chirogeek.com/005_DRE_Rating_Charts.htm
    From what you describe as your injury, this is what it would appear to be the situation
    No significant clinical findings.
    No observed muscle guarding or spasm.
    No documented neurologic impairment.
    No documented alteration in structural integrity of the spine.
    No other indication of impairment related to the injury, illness, or fractures
    This is a DRE Lumbar Category I:
    0% Whole Person Impairment (WPI)
    That doesn't mean you won't get any ''award'', but probably small in $$

    I have since developed severe depression symptoms, am in constant pain, have suffered massive loss of strength particularly in my lower extremities
    For the symptoms you describe here now, you should return to your PTP and get a referal to a Pain Management facility, this is appropriate per the ACOEM guidelines, and should have no problem getting through the UR process...you can read about the new Pain Management Guides here...http://www.theacpa.org/documents/ACP...07%20Final.pdf
    IF this is accepted by the ER/IC, it would be a ''compensable consequence'' to the orginial injury, and affect your overall rating.
    "Depression'' due to the litigation process though is not 'compensable', nor is your thought process of being unable to work...but depression due to ''chronic pain'' IS...

    You should call the I&A officer at the local WCAB for help in handling your claim, there are also fact sheets available at the DWC site...http://www.dir.ca.gov/dwc/iwguides.html

  4. #4
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    May 2008
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    Default Re: Back Injury: Doctor Says Permanent And Stationary With 5 Bulged Discs - Now What

    Thank you for the advice.
    The QME was set up after I requested a change of doctor to a specialist outside the MPN, and he is the one who helped me select The QME doc. I found the QME doc to be fair wll he be the one to do the PQME?

    BvIA
    No significant clinical findings.
    No observed muscle guarding or spasm.
    No documented neurologic impairment.
    No documented alteration in structural integrity of the spine.
    No other indication of impairment related to the injury, illness, or fractures

    Sorry, I should have given more info
    QME done end of Feb 2008
    the Qme doc noted Muscle guarding
    Decreased sensation in my foot
    muscle weakness in legs
    he states there is electrodiagnostic evidence of lumbar radiculopathy involving the right L4 and L5 nerve roots
    EMG from 12/07
    MRI from 11/07
    Shows broad based disk protrusion's at
    L1/L2 2.5MM
    L2/L3 2.5MM
    L3/L4 2.5MM
    L4/L5 2.5MM with bilateral neuroforaminal narrowing causing encroachment on L4 exiting nerve roots
    L5/S1 5MM central disk protrusion thet indents the spinal canal producing mild spinal canal there is a left Neuroforaminal narrowing causing encroachment on left L5 exiting nerve roots

    It does not seem to me like "No significent clinical findings" is not the case. I am not sure how significent the IC thinks this is.

    A far as my employere goes I did say no I need to see a doctor now, and I was refused, I would have called myself but none of th WC phone numbers or even OSHA poasters on any of our job sights. But your right I could have done what a man should do, lost my job and gone homless, meenwile letting time go by so they could try to say it happend somewhere else, I was not forced just found the alternitive unacceptable. But it seems to me that if nothing else there are some ADA violations in the termination of my job and group health plan???

  5. #5
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    Default Re: Back Injury: Doctor Says Permanent And Stationary With 5 Bulged Discs - Now What

    But your right I could have done what a man should do, lost my job and gone homless, meenwile letting time go by so they could try to say it happend somewhere else, I was not forced just found the alternitive unacceptable. But it seems to me that if nothing else there are some ADA violations in the termination of my job and group health plan???
    I'd have to say that is an interesting twist on what ''a man should do''...go homeless !?..

    There may be some action for the ER lack of proper posting requirements...but then again, you were out on a construction site...was there a on site trailer/office ? That is where you'd probably find the notices..barring that, the ER is mandated to co-operate with an EE who reports an injury...you'll have to deal with that later...

    For now though...a 2.5mm ''bulge'' of the disk is a normal condition of probably about 80% of the work force in America today...does it hurt..OF Course...
    Is it ''treatable'' ..? at times...Is this a cause for 'permenant disability' ? Maybe, maybe not.

    But it seems to me that if nothing else there are some ADA violations in the termination of my job and group health plan???
    Well, so far you are not ''disabled'', and ADA doens't look at all WC/industrial injuries as ''disabilities'' under their rules...so, action to ADA ?, probably not.

    Your health plan...No, where there is an injury and you are TTD for an extended period of time, or it's determined that you cannot RTW...there is no law that requires the ER to continue to provide a benefit/health coverage for you. They may have to proved access to COBRA under the plan, but you have to pay the premium for that...and ADA has nothing to do with COBRA.

    The QME was set up after I requested a change of doctor to a specialist outside the MPN, and he is the one who helped me select The QME doc. I found the QME doc to be fair wll he be the one to do the PQME?
    If that is all there was on how this (QME) was handled, ...that isn't the way the rules provide for a dispute in an MPN... but, supposedly it won't matter at this point.

    The QME you were evaluated by IS the PQME, and will be the ''decider'', or the one to settle disputed medical issues for the life of your claim...even though it appears to have done wrong.
    If you'll go to section 4062.2 of the labor code you can find the ''right way'' to get a PQME evaluation...http://www.leginfo.ca.gov/cgi-bin/di...file=4060-4068
    Although there are additional rules to follow for disputed issues when treating within an MPN that don't include a PQME but rather an IME.

  6. #6
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    May 2008
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    Default Re: Back Injury: Doctor Says Permanent And Stationary With 5 Bulged Discs - Now What

    BvIA, I was reading another thread where the person was having similar employer issues and you recomended a 132A form. Where does one get this form??? Should my Atty help me with this? As of yet he just tells me it is outside of WC

  7. #7
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    Default Re: Back Injury: Doctor Says Permanent And Stationary With 5 Bulged Discs - Now What


  8. #8
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    Default Re: Back Injury: Doctor Says Permanent And Stationary With 5 Bulged Discs - Now What

    jerry, IF your AA is saying that a 'discrimination/harrassment' issue is outside WC arena, he is a DITZ...
    Go to the labor code...section 132(a)...http://www.leginfo.ca.gov/cgi-bin/di...file=110-139.6
    132a. It is the declared policy of this state that there should not
    be discrimination against workers who are injured in the course and
    scope of their employment.
    (1) Any employer who discharges, or threatens to discharge, or in
    any manner discriminates against any employee because he or she has
    filed or made known his or her intention to file a claim for
    compensation with his or her employer or an application for
    adjudication, or because the employee has received a rating, award,
    or settlement, is guilty of a misdemeanor and the employee's
    compensation shall be increased by one-half, but in no event more
    than ten thousand dollars ($10,000), together with costs and expenses
    not in excess of two hundred fifty dollars ($250). Any such
    employee shall also be entitled to reinstatement and reimbursement
    for lost wages and work benefits caused by the acts of the employer.

    (2) Any insurer that advises, directs, or threatens an insured
    under penalty of cancellation or a raise in premium or for any other
    reason, to discharge an employee because he or she has filed or made
    known his or her intention to file a claim for compensation with his
    or her employer or an application for adjudication, or because the
    employee has received a rating, award, or settlement, is guilty of a
    misdemeanor and subject to the increased compensation and costs
    provided in paragraph (1).
    (3) Any employer who discharges, or threatens to discharge, or in
    any manner discriminates against any employee because the employee
    testified or made known his or her intentions to testify in another
    employee's case before the appeals board, is guilty of a misdemeanor,
    and the employee shall be entitled to reinstatement and
    reimbursement for lost wages and work benefits caused by the acts of
    the employer.
    (4) Any insurer that advises, directs, or threatens an insured
    employer under penalty of cancellation or a raise in premium or for
    any other reason, to discharge or in any manner discriminate against
    an employee because the employee testified or made known his or her
    intention to testify in another employee's case before the appeals
    board, is guilty of a misdemeanor.
    Proceedings for increased compensation as provided in paragraph
    (1), or for reinstatement and reimbursement for lost wages and work
    benefits, are to be instituted by filing an appropriate petition with
    the appeals board, but these proceedings may not be commenced more
    than one year from the discriminatory act or date of termination of
    the employee. The appeals board is vested with full power,
    authority, and jurisdiction to try and determine finally all matters
    specified in this section subject only to judicial review, except
    that the appeals board shall have no jurisdiction to try and
    determine a misdemeanor charge. The appeals board may refer and any
    worker may complain of suspected violations of the criminal
    misdemeanor provisions of this section to the Division of Labor
    Standards Enforcement, or directly to the office of the public
    prosecutor.
    and print this out and hand it directly to your attorney...
    The WCAB has the jurisdiction to enforce the actions under 132(a).
    That does not however mean that you do/may not have a civil action under FEHA/ADA/EEOC rules...but start with the WCAB and 132(a)....
    Keep in mind that there is a one year SOL for filing....the clock beging from date of knowledge of the action on the ER...

  9. #9
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    Default Re: Back Injury: Doctor Says Permanent And Stationary With 5 Bulged Discs - Now What

    BvIa. you stated "Well, so far you are not ''disabled'', and ADA doens't look at all WC/industrial injuries as ''disabilities'' under their rules...so, action to ADA ?, probably not."

    First, under ADA, a "disability" is essentially defined as ANY condition, physical or mental, that impairs/interferes with that individal's ability to perfom a 'life function/activities of daily living. A disability could be a person who is allergic to perfume, or heat intolerance, etc...and it is considered a disability if that person has to "alter" his/her activities BECAUSE of it.

    This is a VERY SIMPLISTIC EXPLANATION of a DISABILITY, AS DEFINED BY ADA....

    Also, the ADA does NOT distinguish if an individual meets the definitition of having a disability , based on the CAUSE of the disability, OR that it is an INDUSTRIAL INJURY or NOT that has resulted in a disability.

    Under FEHA, the definition of "disabiity" specifically includes the words "PERCEIVED IMPAIRMENT"..in other words, while it IS possible that an individual may not be "disabled" under ADA, that SAME INDIVIDUAL may very well considered disabled under FEHA.

    Perceived impairment is, for instance, an Employer's "PERCEPTION" that a medical or mental condition is AFFECTING the employees ability to work, even THOUGH that individual might NOT be "disabled" by ADA definition...

    In other words, because of a "perceived impairment", and HOW the employer REACTS TO and/or TREATS THE EMPLOYEE, the conduct may very well be DISCRIMINATORY under FEHA and/or ADA.

    Jerry needs to consult with several EXPERIENCED Labor Law Attorneys who specialize in FEHA/ADA, and discuss ALL the facts in his case, as well as bringing in copies of ANY DOCUMENTATION that supports his asertions and concerns.. And that includes ANYTHING that has occured as a result of having filed for, being on WC, attempts to return to wrok, etc.

    Having a 132(a) WC Action against an Employer does NOT PRECLUDE FILING a CIVIL LAWSUIT UNDER FEHA/ADA. They are NOT "mutually exclusive"...and case law supports that.
    A 132(a) claim is for discrimination/harrassment at work BECAUSE the employee FILED FOR WC. A FEHA/ADA lawsuit is BECAUSE of the DISABILITY, and being discriminated against DUE to the DISABILITY.

    IN ADDITION, Jerry should call the Local FEHA, EEOC and all other FEDERAL AND STATE agencies that handle FEHA/ADA discrimination, employment law, etc complaints ASAP.

    Filing a complaint under FEHA/ADA (and other agencies) have VERY SPECIFIC TIME LIMITS... and, USUALLY, after a timely complaint and investigation, the Agency may also have to issue a "right to sue" letter in order to file a CIVIL COMPLAINT in Court.

    It is my understanding that if for some reason an individual can NOT find an attorney to represent them, should the individual have a viable FEHA/ADA discrimination and/or employment issue, then these agencies have "in-house counsel" who can ASSIST in administering the claim. In this case, the AGENCY handles the claim, and NO civil lawsuit if filed. (This is my general understanding, and the Agency and an attorney should be consulted)...

    The reason Jerry should consult with ANY and ALL FEDERAL AND STATE AGENCIES that handle employment/disability discrimination is because although there may not be a violation according to Laws that are handled under ONE agency's jurisdiction, there may be OTHER VIOLATIONS based on what Laws OTHER employment/discrimination Agencies handle that ARE applicable, AND actionable.

    Even IF an individual DOES retain counsel, these Agencies are usually VERY COOPERATIVE, and can provide tremendous assistance to the Attorney and the individual claimant...
    Last edited by Charles Stevens; 05-14-2008 at 07:39 PM.

  10. #10
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    Default Re: Back Injury: Doctor Says Permanent And Stationary With 5 Bulged Discs - Now What

    Charles,
    I agree with all you are saying... my answer to jerry are based on his information provided...
    So far, I don't see any 'discrimination' on the part of the ER, only the PTP reports indicate he cannot continue 'hard labor'...

    so far you are not ''disabled'', and ADA doens't look at all WC/industrial injuries as ''disabilities'' under their rules...so, action to ADA ?, probably not.
    So far...as there hasn't been an 'discrimination', under what I can see per ADA definations...actual or percieved...Jerry has not been determined by the doctors as actually having a 'disability' nor the ER ''perceiving'' a disabiltiy..actionable due to jerry thinking he is 'disabled', ''probably not" at this point.
    1. Does everyone with an occupational injury have a
    disability within the meaning of the ADA?

    No. Even if an employee with an occupational injury
    has a "disability" as defined by a workers' compensation statute,
    s/he may not have a "disability" for ADA purposes.

    The ADA defines "disability" as: (1) a physical or
    mental impairment that substantially limits a major life
    activity, (2) a record of such an impairment, or (3) being
    regarded as having such an impairment. Impairments resulting
    from occupational injury may not be severe enough to
    substantially limit a major life activity, or they may be only
    temporary, non-chronic, and have little or no long term impact.

    2. Does every person who has filed a workers' compensation
    claim have a disability under the "record of" portion of the ADA
    definition?

    No. A person has a disability under the "record of"
    portion of the ADA definition only if s/he has a history of, or
    has been misclassified as having, a mental or physical impairment
    that substantially limits one or more major life activities.
    While it isn't all that difficult to have a 'disability' under ADA rules...
    3. When does a person with an occupational injury have a
    disability under the "regarded as" portion of the ADA definition?

    A person with an occupational injury has a disability
    under the "regarded as" portion of the ADA definition if s/he:
    (1) has an impairment that does not substantially limit a major
    life activity but is treated by an employer as if it were
    substantially limiting, (2) has an impairment that substantially
    limits a major life activity because of the attitude of others
    towards the impairment, or (3) has no impairment but is treated
    as having a substantially limiting impairment
    I can't find any place that provides that there IS a disability under ones 'own perception', I appears that a disabiltiy must be "actual'' as determined by a physican or ''perceived by others'', but not of your own thought process...

    IN ADDITION, Jerry should call the Local FEHA, EEOC and all other FEDERAL AND STATE agencies that handle FEHA/ADA discrimination, employment law, etc complaints ASAP.
    Begin with EEOC, the agency investigates all claims and if there is cause, will issue a ''letter to sue'', and provide representation..there may be no need for a labor law attorney, while consultations are 'free', the upfront costs can be significant...

    Having a 132(a) WC Action against an Employer does NOT PRECLUDE FILING a CIVIL LAWSUIT UNDER FEHA/ADA. They are NOT "mutually exclusive"...and case law supports that.
    I don't think that is what I said...but rather..
    That does not however mean that you do/may not have a civil action under FEHA/ADA/EEOC rules...but start with the WCAB and 132(a)....
    In fact you don't need 'case law', as the code provides..
    ...The appeals board may refer and any
    worker may complain of suspected violations of the criminal
    misdemeanor provisions of this section to the Division of Labor
    Standards Enforcement, or directly to the office of the public
    prosecutor. ...
    A favorable determination to a 132(a) by the WCAB would certainly go a long way in prevailing in an EEOC/ADA/FEHA action...

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