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  1. #1
    Join Date
    Nov 2006
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    22

    Default Case Reopened, Saw QME, Now What?

    Reopened Case Seen QME

    My injury date was 2003 found P/S 2004. I settled STIPS. I reopened my claim in November 2004 because I was becoming worse what I mean by that is that my pain levels increased with greater intensity and frequency with some new sensations that made me feel like I was having a heart attack. I went to the emergency room my ambulance and was diagnosed with anxiety and panic attacks. I was having moderate anxiety and panic during the months before associated with pain in left arm and shoulder and chest. I was having sleep problems and concentration issues. I had to stop working again due to my increase pain levels and now the fear of having a panic attack while working. I am taking meds but they seem to just take the edge off I also see a psychologist.

    During this time I was told by my claims rep that I could not collect TTD due to disability retiring because my income was 0 . I asked for a hearing in which the judge decided to send me to the QME to evaluate my new situation. She also stated that my TTD would be based on my reason for retiring.

    Well the report from the QME is in and under the following he writes.

    Permanent and Stationary Status.

    The patient continues to be permanent but not necessarily stationary in that she is showing some degree of deterioration, both objectively and subjectively. Again this is entirely as a consequence to underlying chronic condition which is causing increased acute episodes of greater intensity and frequency.

    Disability:

    The patient's present profile continues to fall in to the previous disability level under the old rules with a disability precluding substantial work indicating a lost of approximately 75% of her pre-existing capacity for performing such duties protracted sitting, lifting, bending, stooping, pushing, pulling, grasping, pinching, and performing fine manipulation with her hands and fingers.

    As indicated, to address the intensity and frequency of her flare-ups she should be referred for psychological evaluation as well as evaluation with a pain management specialist. This patient then has increased disability related to her anxiety attacks.

    So does anyone out there think I would be able to get my TTD now or will I have to first go to the psychologist. My claim rep stated that she just received the report a few days ago and had to give it to her supervisor but she said to receive ttd she believes I would have had to have surgery or recouping. I am pro per so any help would be appreciated.

  2. #2
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    17,941

    Default Re: Reopened case seen Qme now what?

    Your entitlemenent won't be determined until you see the QME, and the judge reviews the report. When you retire, voluntarily, you don't normally get TTD benefits as you are the one who determined that you no longer want to work..you're 'retired'.
    It would be the same as if you were declared P&S/MMI and released to return to work...if you decide not to go back to work, that's your decision not to earn a wage.
    TTD benefits are paid while you are 'off work' due to being treated/recovering from an industrial injury....while you may be 'recovering', you choose to retire vs remaining employed and your PTP saying you cannot work, that would be TTD status.

    As you have settled your case by Stipulation, you were/are receiving PDA's, when they stop, as your rating is over 70% you are entitled to a Life Pension..it's a meager amount. As the QME reports that you have increased disability ("This patient then has increased disability related to her anxiety attacks.") you will be rerated for your PD. The LP will stop, and PDA's begin again if warranted to the value of the new rating.

    I think you're going to have to see the psychologist, and the PM doctor and those reports included in the QME's supplemental/final report, then go back to the WCAB judge. The QME should be naming the psych/pain mgt doctors he is referring you to. You do not want to leave this up to the CA to choose a doctor to make the evaluations. The new evaluators you see are going to be classified as QME's, not treating physicians.
    I do not see the CA/IC paying TTD benefits without an order from the WCAB...


    ''The patient continues to be permanent but not necessarily stationary...''
    That is certainly a strange way of describing your status...either you are P&S or you aren't...

  3. #3
    Join Date
    Jun 2007
    Posts
    349

    Default Re: Reopened case seen Qme now what?

    BvIA I am reading the post a little differently as far as disability rating. I don't see where poster is over 70%. What I see is the Dr. is saying she has a loss of 75% of her capacity for lifting etc. This is not an impairment rating although it is a fairly substantial loss and restriction. I do agree that TTD is more than likely not going to be paid because of the retirement status.

  4. #4
    Join Date
    Nov 2006
    Posts
    22

    Default Re: Reopened case seen Qme now what?

    Let me clarify. I noticed I made an error on date that I reopened my claim.

    My date of injury was 2003. I applied for disability retirement because I could no longer do my State job do to my restrictions and PERS agreed that they could not work me and started paying me disability retirement. The QME made me P/S in 2004. I settled my claim in 2004 by STIPS with future medical. I retrained myself and worked freelance until I started haveing increased symptoms with severe flareups along with this new anxiety and panic attacks. I was told by my primary care that I should reopen my claim this was in Sept 2006 and at that time I was told that I could only be paid TTD based on my income in 2006 since I retired. I asked for a hearing and the Judge wanted me to be seen by the QME for new and further. When I asked her about my TTD rate and told her what the Claims Rep said she told me that if the claims rep did not agree to pay me the rate at date of injury then I should ask for a hearing and bring my documents proving why I retired and she would make the decision. I was also told by the information and assistants officer that I should be getting TTD based on date of injury dueto retireing because of my injury.

    Now my question was about the QME report that I just received and quoted in previous thread it really confused me so if anyone has ever heard of a QME stating:
    SHE IS PERMANENT BUT NOT NECESSARILY STATIONARY. I'M wondering is he saying yes or no or maybe to my P/S Status.

  5. #5
    Join Date
    Feb 2007
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    Calif
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    Default Re: Reopened case seen Qme now what?

    ''The patient's present profile continues to fall in to the previous disability level under the old rules with a disability precluding substantial work indicating a lost of approximately 75% of her pre-existing capacity ...''

    ''Judge wanted me to be seen by the QME for new and further.''

    frustratediw...Sorry, I did read it wrong... jess didnt give the PD % in the first post, and it appears the judge want the evaluation by the QME (with the supplementals included from the other doctors) to determine IF there is an additional level of PD to be attributed to the injury. Looks like the QME thinks this is the case at this point.
    Prior to 01/05 we didn't have 'impairment' ratings...WPI's, but only PD%'s to the body part...now the PD rating is converted to a WPI/whole person.


    jess, what was the PD% rating when you did the settlement by Stipulations?

    I still don't see you receiving additional TTD for this as you are the one who determined that you would retire. Had you continued/returned to your old job, and then the PTP once again put you TTD, then the Stips/settlement, you would be entitled to additional TTD as your within your DOI/5yr statute.
    I think that is where the judge will have to base the decision on your TTD>


    ''SHE IS PERMANENT BUT NOT NECESSARILY STATIONARY. I'M wondering is he saying yes or no or maybe to my P/S Status. ''

    I think you shoul go back and ask your QME what he meant by that statement...(was this a psyche QME?) The QME may have been referring to "stability" here vs. "stationary"...(?)

  6. #6
    Join Date
    Nov 2006
    Posts
    22

    Default Re: Reopened case seen Qme now what?

    My award was 49%. I will contact the QME with the question on P/S.

    Also I just finishished reading about TTD after retirement on the workers comp appeals board, and again it seems it all depends on the reason you retired and in my case it was due to my injury, and other cases similiar to mine where approved for ttd.

    It seems as if I will be returning to the Judge if my claims rep does not approve, as I said before she never denied me TTD just wouldn't pay at the date of injury date.

    Another question when I called my claims rep about the currrent QME report and asked about my TTD she stated this time that she didn't think I could get it even at the 2006 income rate because I am not recovering from a surgery. I just don't get it when I received TTD in 2004 I wasn't recovering from surgery. I am really confused.

  7. #7
    Join Date
    Dec 2006
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    2,165

    Default Re: Reopened case seen Qme now what?

    Jess, if you are not represented by legal counsel, you must be VERY CAREFUL about contacting your QME on your own. This would be considered an "ex parte communication" and could potentially result in the IC having the QME report thrown out...and possibly having to go to a NEW QME.

    You MUST contact the QME in WRITING, and be SURE to send the IC a COPY of your letter. Basically, what you are asking is for the QME to issue a supplemental report, and asking the QME to clarify his statement and opinion as to your P&S status.

  8. #8
    Join Date
    Nov 2006
    Posts
    22

    Default Re: Reopened case seen Qme now what?

    Thank you, Charles I am unrepresented and I will make sure every thing is in writing. Could you comment on my claims rep statement,that I cannot draw
    TTD benefits because I am not recovering from a surgery and the statement on not being able to have ttd based on my date of injury date even though
    I retired due to my injury and my employer would not work me with my restrictions.

    Also should I ask the QME to comment on my TTD status, the claim rep stated he did'nt comment on this. She did not ask him in her letter to comment, she asked him to comment on P/S and New and Further. She really confuses me.

    Thank you,

  9. #9
    Join Date
    Dec 2006
    Posts
    2,165

    Default Re: Reopened case seen Qme now what?

    Jess, it is not up to your claims adjustor to determine if you are or or not TTD...only your Primary Treating Physician can determine if you are unable to work due to your work injuries.

    If either YOU or the Claims adjustor DISPUTES your TTD status, then either YOU or the CA should be having the QME (Qualified Medical Examiner) resolve the issue.

    Further, please see the case below about TTD and your "medical retirement" status.

    TEMPORARY DISABILITY– Earning capacity affected by retirement–The elements of earning capacity include the ability to work, willingness to work and opportunity to work. (See Gonzales v. Workers' Comp. Appeals Bd. (1998) 68 Cal.App.4th 843.) Although a voluntary retirement could reduce earning capacity to zero and negate the right to temporary disability benefits, part of the analysis must address whether the decision to retire was a function of the job-related injury. If the injury causes the worker to retire, or interferes with plans to continue working, then the worker cannot be said to be unwilling to work, and would have an earning capacity diminished by the industrial injury and would be entitled to temporary disability benefits despite the fact that he/she retired. Bay Area Rapid Transit District v. Workers' Compensation Appeals Board (Kathleen Heppler)7 WCAB Rptr. 10,127

    IF you took your medical retirement AS A RESULT of your WORK INJURY, and your PTP or the QME has determined that you are TTD during any or a part of the period that you have been on medical retirement AS A RESULT OF YOUR WORK INJURY, then TTD is owed.

    Since your original Date of Injury is 2003, you are NOT bound by the 2 year TTD cap for post 2004 injuries. It appears that since your DOI was 2003 and you were P &S sometime in 2004, you have NOT exceeded the TTD cap for 2003 injuries. And Qualifiing for TTD is NOT predicated on "recuperating from surgery", as your claims adjustor ERRONEOUSLY asserts...

    TEMPORARY DISABILITY-An injured worker who is undergoing diagnostic testing and treatment and is unable to work is considered temporarily disabled. (See Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159.) [In this case, the treating physician found the injured worker to be permanent and stationary but recommended further surgery. The WCJ found that the injured worker was no longer at the maximal medical improvement when the further surgery was recommended.] Parsec Inc. v. Workers' Compensation Appeals Board (Lonnie Blazer) 8 WCAB Rptr. 10,164 [writ denied]

    Jess, you will probably have to file a DOR for a Hearing to get your TTD benefits and possible penalties. You may also want to consider retatining a WC attorney to assist you...

    In re-reading your original post, the I&A officer did indeed advise you to file for a Hearing and have the JUDGE intervene.
    Last edited by Charles Stevens; 09-18-2007 at 08:22 AM.

  10. #10
    Join Date
    Nov 2006
    Posts
    22

    Default Re: Reopened case seen Qme now what?

    Charles,

    Thank you so much I feel sometimes as if Iam in the twilight zone when dealing with my claims rep. I think I know something and then she throws somthing new at me. It feels good to hear someone agree with me, it gives me the confidence to keep at it.

    Thanks again

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