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  1. #1
    Join Date
    Dec 2018

    Default Can I Be Forced to Attend a Permanency Exam While I Am Still Treating with My Doctors

    I feel that my W.C. attorney has not been acting with my best interest in mind. He has been persisting since 2016 on scheduling a permanency exam whereas, he would send me emails asking me to let him know when my treatment is over so he can schedule a permanency exam and bring my case to a conclusion. This last permanency exam was scheduled for 12/2018 upon request of the respondent, I faxed him my doctor prescription for my recent treatment which started in July/2018, and I explained to him that I would like to finish the current course of treatment before I can attend a Permanency Exam and I cited what I have read on the forum that the law allows 26 weeks after the completion of treatment before scheduling a permanency exam. He canceled the scheduled exam but yet another permanency exam was scheduled for January 2019. Now he’s saying that my case has been on going for 4 years and neither he nor the courts will allow my case to go on any longer, and if I don’t attend the permanency exam the respondent will file a motion to dismiss my case because I didn’t get surgeries, treatment, I.E Therapy, or Injections, and that my condition is only palliative pain management.

    My worker’s comp case started in Dec/2014, due to a slip and fall at work. On or about January 2015 I hired my now attorney for W.C. Case. I went to worker’s compensation doctors until May of 2015 they didn’t properly diagnose or treat me. At the same time my W.C. attorney advised me to see my own doctors thru my private insurance. I then had Xrays, MRI Lumbar Spine without contrast, MRI Cervical Spine/Thoracic, MRI Left Hip. I also had to hire an employment attorney because my employer back then refused to honor the leave of absence that I submitted from my treating doctors. My employment attorney urged my W.C attorney to file a motion in Court for “Medical Treatment and Temporary Disability Benefits”., in the motion he stated that I was injured in the course of my employment due to a slip and fall and that I sustained injuries to my head, neck, lower back, hip ,arms and hands and that my employer initially provided medical treatment but then they advised me that my claims under W.C. was denied without an explanation, and not to allow the abusive W.C. doctor to ever treat her again. He attached a proposed order asking that respondent shall pay me retroactive disability benefits from the time of the fall and shall provide medical treatment to me accordance with the recommendation of my own treating doctor. On 11/2015.The Judge ordered the respondent to schedule a “Need For Treatment” Exam by an Orthopedist and to return to court by 3 cycle. I went to that exam and to this day I don’t think that my attorney went back to court on that motion although I asked him several times.

    Thereafter. I continued treating with my Pain Management and I am on 10 meds a day. My Neurologist has given me a leave extension note every 3 months for my employer since 2015 and currently from July/18 to my next appointment in January/2019. I was diagnosed with Fibromyalgia, sever myofascial pain syndrome, slip disk in neck and back and tear in left hip. During the course of my treatment in the past 4 years he sent me to see different specialist from Physical Therapy, Dry Needling, RA doctor for joint pain, Neurological Chiropractor, Acupuncture, and most recent in July 2018., he prescribed a Neurolumen treatment to follow with natural injection and chiropractic, manipulation which will continue though the course of 2019. Also as of Dec/2018 my employer has canceled my health benefits once again and I have forwarded this matter to my employment attorney.

    Can he or/ they force me to attend a permanency exam while I am still treating?
    Is there a time line for my case in court that it has to end by as my attorney claims?
    Does a permanency exam end my case and treatment? What are my legal right that ensure that I can continue with my treatment with private insurance until I get better?

  2. #2
    Join Date
    Oct 1971

    Default Re: Can I Be Forced to Attend a Permanency Exam While I Am Still Treating with My Doc

    I was diagnosed with Fibromyalgia, sever myofascial pain syndrome
    Those are not acceptable conditions to base a claim - You must have a condition that can be proven with objective medical evidence.
    Fibromyalgia, sever myofascial pain are based on subjective evidence and not a basis to sustain a claim.

    Permanent Partial Disability Benefits
    In Perez v. Pantasote, Inc., 95 N.J. 105 (1984), the Supreme Court held that entitlement to permanent partial disability requires that:
    [T]he employee must first prove by demonstrable objective medical evidence a disability that restricts the function of his body or its members or organs. Second, he must establish either that he has suffered a lessening to a material degree of his working ability or that his disability otherwise is significant and not simply the result of a minor injury.
    A second criterion is whether there has been a disability in the broader sense of impairment in carrying on the "ordinary pursuits of life." See Perez, supra.

    A subjective complaint of pain or discomfort without accompanying "demonstrable objective medical evidence," does not satisfy a petitioner's burden of proving the existence of partial-permanent disability. See Colon v. Coordinated Transport, Inc., 141 N.J. 1 (1995) (range of motion tests are subjective evidence and do not, standing alone, satisfy the statutory requirement of demonstrable objective medical evidence). See also Porter v. Elizabeth Board of Education, 281 N.J. Super. 13, App. Div. 1995), cert. denied 142 N.J. 455 (1995) (an employee who underwent cervical disc surgery demonstrated objective medical evidence of disability); Perez v. Monmouth Cable Vision, 278 N.J. Super. 275 (App. Div. 1994), cert. denied, 140 N.J. 277 (1995) (a "hands-on" examination demonstrating loss of range of motion and strength is sufficient to satisfy requirement of demonstrable objective medical evidence); and Rakip v. Madison Ave. Food Town, 272 N.J. Super. 590 (App. Div. 1994) (modest findings of restriction of flexion, extension and bending, and complaints of continuing pain in his low back that interfered with his activities of daily living, were sufficient to sustain award of permanent partial disability).
    Where there is a conflict of medical testimony the court will give greater weight to that of the treating physician. See Pellegrino v. Monahan McCann Stone Co., 61 N.J. Super, 561 (App. Div. 1959); and Mewes v. Union Bldg. & Construction Co., 45 N.J. Super. 88 (App. Div. 1957), certif. denied 24 N.J. 546 (1957).

    Based on what you've posted, I would say they can demand you attend a Permanency Exam or close your claim (I'm surprised it's still open.)

    What are my legal right that ensure that I can continue with my treatment with private insurance until I get better?
    You can treat with your private insurance forever as long as your comp claim is denied.
    If you win your comp claim, your private insurance can seek reimbursement for every dime they've paid.
    Private insurance will not cover a work related injury.

    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

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