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  1. #1
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    Default When Can an Injured Worker Reopen C&R With Future Medical

    My workers compensation claim was made in the State of: California

    Howdy,
    I need some advice in “BABBITT V OW JING dba NATIONAL MARKET”, Case #STK 0174793.
    My case is almost the same, so when I found the above, it really popped by bubble, I thought I had’em with SB899 sec. 47 with “Except Awards”.

    HISTORY
    DOI 1976. Date of C&R with Future Medical 1980. Notified by Insurance Carrier (IC) that they started a MPN on 3/1/12, and I had 25 days to pick a new Primary Care Physician (PCP) from the start date, I received the notice on 3/9/12 (so I was cheated out of 9 of the 25 days). I filed a DOR on 3/31/12 objecting to having to give up my PCP of 15+ years contending that under SB 899 Sec. 47 I was excempt (didn’t find BABBIT V OW JING until after the hearing). The (IC) notified WCAB that they objected to my DOR and wanted it cancelled, and then sent me the forms to request a panel of QME’s. Court overruled their objection and the case was heard on 5/1/12.

    The Judge heard evidence from me re: SB 899 Sec. 47.
    I presented a report from my Doctor that I had a “Serious & Chornic" condition.
    I notified the court that when I was hired in 1974, I was never notified of “TITLE 8, CCR 9780.1 (employee’s right to predesignation of PCP).
    I also brought to the Judge and attorney’s attention that under LC 4616.2 (7) & LC 4616.3 (2), the IC could authorize my continued care with my present PCP and preclude me from joining the new established MPN.

    The Judge would not rule on any of the matters except the report from my PCP that I had a “Serious & Chronic” condition, and therefor could continue seeing her for 12 months.
    The Judge then set a Continuance hearing for 5/31/12 on the other matters.

    MY QUESTION
    Since “BABBIT V OW JING” screwed me out of my choice of Doctors, can I reopen my C&R for re-evaluation on the monetary award?
    I was offered $30K to settle, but when I insisted on “Future Medical” they reduce the monetary amount down to $15K with Future Medical.
    Since part of my reasoning for requesting the Future Medical was I had my choice of doctors, (no more company Doctors)

    Quote from another thread on this website:

    (While there MIGHT be some very fine Docs in the IC/ER's MNP, the IC/ER still has TREMENDOUS INFLUENCE over the MNP Doctors, and one MIGHT find that the MNP Doc will "succumb to the pressures", and NOT "report favorably", on behalf of the IW...if the MNP Doctor wants to REMAIN in the MNP, that is....and NOT have the IC/ER yank their MNP contract....) .

    Can I reopen my C&R and request more money since due to “BABBIT V OW JING”, I lost the crucial part of my “Future Medical Award”, my right to choose my own Doctor?

    Any help or suggestions well be greatly appreciated.

    Thanks, Garry

    P/S: Has there been any appeals to "Babbit v Ow Jing", Case #STK 0174793?
    Last edited by Garry; 05-06-2012 at 02:37 PM. Reason: spelling correction

  2. #2
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    Default Re: Can 1980 C&R W/Future Medical Be Re-Opened for More Money Because of Babbit V Ow

    Nope. You agreed to the terms of the C&R... the WCAB jurisdiction ends at 5 years...but for enforcing the future medical award.
    Subject to the terms of 4062. You are not subject to 4062/SB899 to resolve disputed medical issues.
    I lost the crucial part of my “Future Medical Award”, my right to choose my own Doctor?
    You can be compelled to select a PTP in the MPN... after the 12 mos of continuation. You can select any Dr in the MPN accepting new patients. SB899 is retro to all IW's...

    Be helpful if you'd provide a like to BABBIT v Ow Jing....
    Go back to court, argue your points to the judge.
    You haven't "lost" anything in your future medical award, all treatment is subject to the UR process, as well as medical/legal evaluations and WCAB expediated hearing on medical.
    The Judge would not rule on any of the matters except the report from my PCP that I had a “Serious & Chronic” condition, and therefor could continue seeing her for 12 months.
    Technically that "serious and chronic" goes to the acute stage of your injury/illness...not "chronic''... what could be serious enough since 1976 that would allow for continuation of care? Your condition should be serious enough to cause serious harm within the 12 months... you're somewhat past that stage. Certainly not expected to end in death.

  3. #3
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    Default Re: Can 1980 C&R W/Future Medical Be Re-Opened for More Money Because of Babbit V Ow

    To your response “that I haven’t lost anything”, I’ve lost my right to choose my own doctor.
    Even though Babbet v Ow Jing pretty much kills that right, can it be appealed?

    For “Serious and Chronic” condition as defined by Doctor:
    “Mr. ?? has been under my care since the year 2000 for a low back and cervical condition. He has had one back surgery, one neck surgery and a number of flouroscopically guided injections done for either diagnostic or therapeutic purposes. I have managed his medication through this period.

    The definition of chronic pain condition is any condition that last for more then 6 months.

    The term serious means that the condition interferes with life functions and for this is likely not a cure.

    Without this care, this patient would be bedridden and not functional at all.

    This patient trust me and we have a mutually beneficial relationship. This type of therapeutic alliance does not happen in a moment but over a lengthier period of time.”

    Can I interview doctors within MPN while continuing to see my PCP in order to evaluate their pain medication prescription practices?

    I am afraid they will try to cut back my pain medication even though they are now exempt from prosecution for legitimate prescribtionss for acute pain.


    Thanks for your reply.
    Garry
    Last edited by Garry; 05-07-2012 at 08:29 AM. Reason: correct spelling

  4. #4
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    Default Re: Can 1980 C&R W/Future Medical Be Re-Opened for More Money Because of Babbit V Ow

    The definition of chronic pain condition is any condition that last for more then 6 months.
    Actually, Calif has adopted the ACOEM treatment guides... "acute", first 90 days... "chronic" post 90 days.

    The term serious means that the condition interferes with life functions and for this is likely not a cure.
    No, not really. The Title 8 CCR's define serious/chronic condition, and the terms under which you may be transfered into a carrier MPN
    (2) A serious chronic condition. For purposes of this subdivision, a serious chronic condition is a medical condition due to a disease, illness, catastrophic injury, or other medical problem or medical disorder that is serious in nature and that persists without full cure or worsens over 90 days and requires ongoing treatment to maintain remission or prevent deterioration. Completion of treatment shall be authorized for a period of time necessary, up to one year: (A) to complete a course of treatment approved by the employer or insurer; and (B) to arrange for transfer to another provider within the MPN, as determined by the insurer or employer. The one year period for completion of treatment starts from the date of the injured covered employee's receipt of the notification, as required by subdivision (f), of the determination that the employee has a serious chronic condition.

    More here http://www.dir.ca.gov/t8/9767_9.html
    To your response “that I haven’t lost anything”, I’ve lost my right to choose my own doctor.
    The law/SB899 change the PTP into MPN. Future medical is not a 'right', it's coverage for your injury, and all treatment is subject to UR process now...
    I am afraid they will try to cut back my pain medication even though they are now exempt from prosecution for legitimate prescribtionss for acute pain.
    Don't know what med's you are currently using..but, IE long term opiate/Oxycontin, Percodan etc are not recommended in the ACOEM/MTUS treatment guides...you can expect the CA to challenge even your PCP/Dr you currently treat with on this issue. There are times where an IW may be RX'd long term opiates... but those generally end up being litigated to some degree.

  5. #5
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    Default Re: Can 1980 C&R W/Future Medical Be Re-Opened for More Money Because of Babbit V Ow

    First, thank you for all the good advice, even though I didn't like some of the answers, hee hee...

    Can you elaborate on "Be helpful if you'd provide a like to BABBIT v Ow Jing..."

    Doctor gives me Vicodine and percocet (which requires an office visit to get refilled). When I go into the MPN, will that office visit for the Percocet refill need to go through UR?

    Re: med use, most days I use 1-2 Vicodine, others (rare) I use up to 8.

    Example: Got a clean up your back yard or get evicted notice from my landlords attorney. Even though I hired two guys to do the work, I had to play job boss and follow them around giving instructions on what went where, etc. By 10AM I was using my cane, by 2PM I was using my walker (and I'm just walking around), anyway, by bedtime I had taken 8 Vicodin just to tolerate the pain, and took a Percocet to get through the night. Had to do this for 3 days while the clean-up was in progress. After a good 24 hours or so of rest, I was back to my normal 1-2 pills a day.

    Looks like I better just get used to the idea that in 12 months I'll be back to seeing the company Doctor, but it really grips me!

    It's like PG&E saying, you let us put this pipeline next to your house and we'll give you free gas and electric for as long as you live there. Then 20 years later saying, we changed our minds, we'll keep giving you the free gas, but you now have to pay for your electricity. Wouldn't that be a Breach of Contract?

    Thats how I feel about being forced into the PMN, a Breach of Contract.

    Anyway, I appreciate your time and expertise on this matter.


    Garry

  6. #6
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    Default Re: Can 1980 C&R W/Future Medical Be Re-Opened for More Money Because of Babbit V Ow

    Typo there... should be LINK, as in URL where you found the info...not like. Sorry.

    Doctor gives me Vicodine and percocet (which requires an office visit to get refilled). When I go into the MPN, will that office visit for the Percocet refill need to go through UR?

    Re: med use, most days I use 1-2 Vicodine, others (rare) I use up to 8.
    That is not going to be reason enough to stay with the PCP you now have... you are going to be transfered into the MPN.
    Yes... your Rx's will be subject to UR process... you can count on it. And you can count on being weaned soon as well... at this point, it would be difficult to tell if those meds are even working.
    Looks like I better just get used to the idea that in 12 months I'll be back to seeing the company Doctor, but it really grips me!
    Ah... you better be prepared to select a PTP from the MPN list, or your current Dr will be notified that within 45 days... s/he will no longer be PTP or paid.
    Thats how I feel about being forced into the PMN, a Breach of Contract.
    Presume you are referring to your future medical award..that is not a contract with you and the carrier... FM is coverage for treatment to your accepted/agreed to body parts. Not ''health isnurance'' like your own GHP/Group Health Plan or Medicare would cover.
    No "breech of contract" here, you don't have one.

  7. #7
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    Default Re: Can 1980 C&R W/Future Medical Be Re-Opened for More Money Because of Babbit V Ow

    As requested, link to referenced case Sharon Babbitt v Ow Jing dba National Market, Case STK 0174793:

    http://www.chirogeek.com/Babbitt%20v...en%20banc).doc

    In reference to " Meds not working", If they were not working, I wouldn't be walking! The Doctor and I chose Vicodin because I do not experience any side effects, (and we have tried everything from aspirin to morphine) and she has me get a liver/blood test every 6 months to look for problems of continued use. I admit they are not as potent as they used to be as my body has built up a resistance to them, but I want to keep walking (without my walker) and carrying on my life as normal as possible, and the only way at this point is to keep taking the pills for the pain as they are a necessity while the Doctor tries to figure out what treatment to try next.
    Garry
    Last edited by Garry; 05-07-2012 at 05:48 PM. Reason: spelling correction

  8. #8
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    Default Re: Can 1980 C&R W/Future Medical Be Re-Opened for More Money Because of Babbit V Ow

    Garry
    Can I reopen my C&R and request more money since due to “BABBIT V OW JING”, I lost the crucial part of my “Future Medical Award”, my right to choose my own Doctor?
    I would say no.

    It says in your source on pg 6, line 16 "the Legislature’s decision to allow the provision of reasonable medical treatment through an MPN makes only a procedural change in the law.

    On line 11 0f the same pg it says " Whether a statutory amendment is given prospective or retroactive effect depends upon whether it implements a procedural or substantive change in the law."

    Because it's only a procedural change, not substantive - I would think you have no basis for appealing or "reopening" your case.

    I lost the crucial part of my “Future Medical Award”, my right to choose my own Doctor?
    In the courts opinion, you have the same rights to future medical, there is just a procedural change
    The court doesn't interpret your choice of a doctor as a "right"
    It says on pg 6, line 22 "because the procedure for providing medical treatment was not a substantive right."

    This is my opinion only, you should consult the attorney who handled your case for verification.

    Take Care
    Tony
    Moderator
    We reserve the right to forbid any user from participating in this forum, and to close any user account, at any time, for any reason. In the interest of the community, this may be done without prior notice or warning.
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  9. #9
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    Default Re: Can 1980 C&R W/Future Medical Be Re-Opened for More Money Because of Babbit V Ow

    I think that when you go on SSD you should choose whatever doctor you like. When will you finally be out of a wc arena?

  10. #10
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    Default Re: Can 1980 C&R W/Future Medical Be Re-Opened for More Money Because of Babbit V Ow

    Quote Quoting Leslie View Post
    I think that when you go on SSD you should choose whatever doctor you like. When will you finally be out of a wc arena?
    Being on SSDI does not take an IW out of the WC arena... as long as the ER/IC has an MPN/Medical Provider Network option, or in states ie. TX, that have approved medical networks, an IW can be compelled to select a treating physician within the network.
    If you are treating a non industrial injury/illness... naturally you may see any Dr willing to accept you as a patient. And, of course you'd be paying out of pocket, whether in full, or with insurance and copay.

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