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  1. #1
    Join Date
    Dec 2009
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    8

    Default Second Bicep Injury in a Year but to Other Arm. Complex Issue and Need Some Advise

    Hi all...
    On 09/09 I suffered a distal bicep tendon rupture in my left arm, had surgery to repair in 10/09. Then in 03/10, had wrist surgery on the same arm, then returned to modified duties at work on 07/10. Worked for one month then suffered a non-work related injury in 08/10 which was to keep me off for at least two more months.

    Due to my non-work related injury, the WC Adjuster stopped my TTD payments and suggested for me to ask my doctor to declare me MMI and close me out. After discussing this with the doc and advising him of my continuing pains he thought since I would not be working for two or more months that it would a good idea to close it out.

    In his report, he glorified his work and gave me a 1% rating with future medical for both wrist and arm, which I objected to and requested a QME. A few day's before my QME I suffered another work related injury to my right arm, same thing, distal bicep tendon rupture (I work in a field that requires heavy lifting).

    I opened a new claim for my right arm but my QME doctor strongly recommends retaining an attorney and wants to do further testing because #1) I shouldn't have been released by my doctor since I was still having pains #2) No scans, nerve test, X-rays or anything for that matter were done before or after surgery. #3) I was putting too much strain/weight on my right arm because of my Left arm injury and #4) I've developed chronic back pain during the time off of work and added on about 30 pounds of weight etc... He attributes all of the above ailments to the initial injury and thinks they should all be combined.

    I guess my questions are:
    A) Do I need or should I get an attorney?
    B) can back pain, weight gain, loss of strength and depression be included in rupture tendon claim for rating purposes?
    C) would it be to my advantage and is it even possible to couple all my ailments to the initial injury even though they happened a year apart?

    And one last thing, if I don't do surgery now, will future medical on my right arm (new claim) allow me to do it at a latter date?

    Thanks in advance

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

    Default Re: Second Bicep Injury in a Year but to Other Arm. Complex Issue and Need Some Advis

    Of course you should consult with an attorney. WC claims are too variable, and complicated to use a message board for a substitue to an atty evaluation of your claim.

    That said...
    B) Continuing back pain is not an 'injury', weight gain is not an 'injury', loss of strength is included in the body part rated, and that rating is converted to WPI/Whole Person Impairment. Depression as you're thinking of it is not an 'injury'. Even if pain were rated on it's own, there is a max of 3% add on to the basic PD/WPI rating.

    C) The atty would advise you on combining the two injuries. The timeframe doesn't really have anything to do with it. If there are 2 claims, you could be eligible for two periods of TTD. TTD is capped at 104 weeks. BUT. As the PQME has opined this should all be due to the org injury, the ER/IC will take that and run with it. Capping your TTD at the 104 weeks total.

    ...In his report, he glorified his work and gave me a 1% rating with future medical for both wrist and arm,...

    I don't do surgery now, will future medical on my right arm (new claim) allow me to do it at a latter date?
    Your PTP nor the PQME 'give' you future medical care in a WC claim. Medical care to the org injury or accpeted body parts in the claim are for life, or until you cash it out by lump sum settlement.
    ALL medical care is subject to prior authorization, and the UR process. When there is delay/denial, the process is the same as dispute resolution while the claim is 'open'. So, yes...you would have access to surgery at a later date.
    But, know too, when your PTP recommends surgery to "cure or relieve from the effects of your injury", and you decline the treatment, your TTD stops, you are automatically MMI and the ER/IC will demand a PD/WPI rating and move the claim to resolution. As you are basically saying "I'll live with this the way I am....", there is no reason for the ER/IC to continue to pay wage replacement.

    Talk to a few attorneys. Protect your own best interests.

  3. #3
    Join Date
    Dec 2009
    Posts
    8

    Default Re: Second Bicep Injury in a Year but to Other Arm. Complex Issue and Need Some Advis

    Great stuff BvIA, Thank you!

    I didn't retain an attorney the first time because the process was semi smooth but more importantly, I didn't want to ruffle any feathers at work and planed to return asap. Now that this happened and I'm technically a high risk for them, I don't think I could go back to doing what I do. Furthermore, I don't know if I can trust my body to go back, already everyone at work is joking about what other body parts I have left to hurt.

    Now... do I have any recourse as to the process of how I was released, declared MMI, from my initial injury, or once released, that's it?

    what if there was more damage caused that was never detected because no tests were done before or after?

    can the 104 weeks be extended if more body parts/injuries are added to the initial claim?

    And based on my story, can you give me an idea what I should be asking my attorney to do for me. I have some objectives that I would like to be achieved but dealing with attorneys in the past on other matters, I've learned that one must be proactive rather then sit back and enjoy the ride or is this a case that they would know best.

  4. #4
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    17,941

    Default Re: Second Bicep Injury in a Year but to Other Arm. Complex Issue and Need Some Advis

    Now... do I have any recourse as to the process of how I was released, declared MMI, from my initial injury, or once released, that's it?
    Where there is a dispute to MMI/rating, you request PQME. That must be within 30 days of receiving the report. Past that, you lose the opportunity to dispute.


    what if there was more damage caused that was never detected because no tests were done before or after?
    This isn't health insurance for the EE... they are not required to keep evaluating to see if there are additional issues to be addressed. If you are experiencing additional symptom to the org injury, you discuss the issues with your PTP. There is no responsibility to ie another MRI right before MMI to see if anything was missed. That's what future medical care is for.
    MMI just means your condition is not expected to change better/worse in the next year or so.
    can the 104 weeks be extended if more body parts/injuries are added to the initial claim?
    No. The 104 weeks is a hard cap. Not even a WCAB judge can add additional weeks. You can use your SDI/state disability ins if eligible. That pays another 52 weeks.
    You aren't adding body parts to the claim, you are trying to add a ''compensable consequence'' to the org claim. Big difference. That's why I said they will run with the PQME report that said ''over use syndrome''.
    Filing a new claim would provide a new period of TTD. IF you are successful in filing a new claim.
    I have some objectives that I would like to be achieved..
    This isn't a "law suit", AA/Applicant Attorney is there is handle disputed issues in a unemotional manner where the IW wouldn't be able to.
    No one likes to be told "no, we aren't going to pay for that", no one likes delays/denials to medical care, if you don't know the process, you lose the ability to appeal a UR denial. Most IW's aren't that familiar with WC.

    If you opt for an AA... you'd be best advised to let the AA do their job, micro managing an AA office isn't a good idea.

  5. #5
    Join Date
    Dec 2009
    Posts
    8

    Default Re: Second Bicep Injury in a Year but to Other Arm. Complex Issue and Need Some Advis

    BvIA you've been very helpful and I probably understand more in these last two day's then I ever did in the last year, so thank you for taking the time...

    Another issue, if you don't mind...

    I just signed a (one) retainer with an attorney I'm comfortable with, I have two open claims, one is in the hands of the QME and the other is just starting. Does that mean he's representing me in both? and if so, will they be taking commission on two separate claims? I'm asking you before I call them so I may seem like I know what I'm talking about.

    Second, do I even have a choice anymore on keeping these two claims separate? or is that something that will have to be discussed after the QME report?

    And finally, if they continue to be handled in a separate manner, would it be wise to have my attorney involved in closing out my first claim and walking me through the second from start to end?

    I don't know how much level of involvement I need with the attorney (fee is 12% to 15%).

    Maybe these questions are stupid but you've seemed very calm and responsive to my ignorance so far, so again I say, thank you!!!

  6. #6
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    17,941

    Default Re: Second Bicep Injury in a Year but to Other Arm. Complex Issue and Need Some Advis

    I just signed a (one) retainer with an attorney I'm comfortable with, I have two open claims, one is in the hands of the QME and the other is just starting. Does that mean he's representing me in both? and if so, will they be taking commission on two separate claims? I'm asking you before I call them so I may seem like I know what I'm talking about.
    I guess I'm somewhat confused here... you signed a retainer fee with an attorney, but didn't discuss what the attorney is representing you in ? Did you discuss the fact you believe there are two claims ?
    Second, do I even have a choice anymore on keeping these two claims separate? or is that something that will have to be discussed after the QME report?
    I think that's been answered. If the PQME said the right arm is due to overcompensaton use due to the left arm injury,...IMHO, you are going to have a problem with filing a new/second claim. The ER/IC will surely fight this as there is now medical evidence/opinion to defeat a second claim. This isn't about your choice, you have to have medical evidence to support a claim. Overcompensation syndrome is not a WC injury in and of itself.
    CT/Cumulative Trauma or specific onset injury are compensable claims.
    This is an issue you should have discussed with the atty before signing the retainer.
    will they be taking commission on two separate claims?
    AA is entitled to a fee based on the work performed.

    Based on the information you have provided so far... you have ONE claim. Once you have completed the PTP recommended treatment plan, including any additional treatment to the right arm due to overcompensation syndrome, and you have been declared MMI, you will be rated for PD/WPI... Calif rates PD, then converts to Whole Person Imprairment for calculating indemnity benefits. That includes how your injury to both arms now, affects your 'whole person' in the ability to compete in the open labor market, or reduced earning capacity.
    IMHO again...your AA will try to get two claims here as you'd be eligible for an additional period of TTD.
    But the TTD cap is for one injury/claim. Your injury is 'upper extremity', both arms. PD rating is not generally defined as 'right' vs 'left' arm, but upper extremity as a body part. So you can see now what you may be up against.

  7. #7
    Join Date
    Dec 2009
    Posts
    8

    Default Re: Second Bicep Injury in a Year but to Other Arm. Complex Issue and Need Some Advis

    you signed a retainer fee with an attorney, but didn't discuss what the attorney is representing you in ? Did you discuss the fact you believe there are two claims ?
    I told them I had two claims and gave both claim numbers because my PQME strongly suggested in getting an attorney involved due to the complexity of my situation. I didn't discuss the specifics of my representation because I didn't have all the facts/report from my PQME and thought that they would know best how to go about this while maximizing their end gain as well as mine.

    you are going to have a problem with filing a new/second claim.
    I already have a new/second claim and am receiving TTD payments under the new claim. My second injury happened a few day's before my scheduled QME appointment in which a claim was filed and a new adjuster was assigned to my claim. I was released back to full duty with 1% impairment from my first claim four months before my second injury and would think, if its to my best interest to have two separate claims, my AA shouldn't have to much of a hard time keeping as such.

    AA is entitled to a fee based on the work performed.
    Correct and that is the arrangement I have with my AA. No compensation, No fee...

    Based on the information you have provided so far... you have ONE claim
    In my first post, I wrote "I opened a new claim for my right arm" this was actually exactly a week before my QME for my left arm.

    you will be rated for PD/WPI... Calif rates PD, then converts to Whole Person Imprairment for calculating indemnity benefits. That includes how your injury to both arms now, affects your 'whole person' in the ability to compete in the open labor market, or reduced earning capacity.
    Would it be to my best interest to combine the two in the long run if TTD payments are of no concern. Reason I ask is because I still have about 68 weeks left of my original 104 and am more interested in moving forward, ie, receive the proper treatment and possibly seeking a work voucher to find a new career which doesn't require heavy lifting.

    I know it's a stretch and its not up to me, (but If I don't do the surgery, don't know if I'm ready to go through all that again so soon, reach MMI with restrictions and my work does not offer modified work...,) TTD payments would not be such a great concern if I could move on with my life sooner then later.

    Don't know, just a thought...

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