Why Wait? A Case Study…

Don't Wait To Seek CounselI reviewed a workers’ compensation claim for a potential client nine months ago.  At the time, I told him of several items that I saw as upcoming issues in his case and shared my opinion about why it would be important for us to start clearing those issues off the deck sooner rather than later.  Would he be found employable with no services or would he receive just a bit of training to allow him to continue working in his field as a welder but in a lighter-duty capacity?  Would the onset of depression be addressed under the claim and taken into consideration when making employability decisions?  Would his level of permanent impairment be under-rated through the typical Independent Medical Evaluation (IME) process or would his surgeon be willing to provide a rating that more accurately reflects his limitations?  I shared my concerns about his case, explained the process I would recommend for addressing these concerns and discussed the fees and costs to be expected.  He indicated he wanted to go forward with representation.

I did not hear from him again, until yesterday.  He left me a message asking for help with his claim.  I looked at the case this morning before returning his call.  He has been found to be employable with no additional retraining, so he will likely not be able to continue with his favored career but, instead, can look forward to his new line of work as a small parts assembler.  He underwent an IME that conservatively rated his level of permanent impairment and approved the job analysis for small parts assembly.  His attending physician signed the form letter to indicate concurrence with the IME results and, on this basis, the Claims Manager has found him employable and is closing the claim.  What about the depression?  Not addressed by the IME, so the Claims Manager is construing the attending physician’s signature on the concurrence form letter to mean that he is also not contending that depression is an issue, so she is denying this condition under the claim.

I know there are two sides to every argument, and I know that an employer representative would look at this same fact pattern and see a job well done, but I am a claimant’s advocate, so I share my thoughts from only that perspective.  I see a situation where I now have a 15-day deadline for filing a dispute with the Vocational Dispute Resolution Office if I want to argue that retraining services are, in fact, appropriate and, at this point, I likely don’t have the medical support I would need to win that argument.  If I now want to argue that depression should be taken into account in this claim, I will need to obtain an evaluation by a psychiatrist in order to gain evidence that the condition exists, is in need of treatment and/or provides limitations in ability to work or has resulted in permanent impairment.  Likewise, I will need to obtain an outside medical opinion to support an argument that he is entitled to a greater award for physical impairment left by his injury.  These evaluations will not be covered under his claim but will be, ultimately, at his expense and, frankly, at this point I may not recommend that he go forward when weighing the expense of doing so with the likelihood of overturning decisions now made.
I’m sure that, when he received the representation paperwork, he thought that he could handle things on his own and save the expense of legal fees.  Where are the cost savings now, though?  Had I been able to be involved earlier, I may have been able to achieve at least some of the goals on an administrative level, bringing together the opinions of the attending physician and the vocational counselor on return-to-work issues, obtaining a referral from the attending physician for a psychiatric evaluation under the claim to address treatment needs and provide medication management, perhaps getting this condition allowed under the claim.  I may have even been able to secure a more favorable rating of permanent impairment by raising issues with the IME examiners’ conclusions with the attending physician.  At least I could have tried to help.

When I call him back this morning, I’ll have to tell him where things now stand, how much it will cost to go forward, how the appeals process works, and the time frames involved.  This will take months to sort out.   I’ll have to explain that his time loss compensation has stopped and will not restart until or unless we succeed with these arguments.  I will tell him to apply for unemployment while he tries to secure physically-appropriate work of some type and I’ll explain that he has to tell Employment Security that he is returning with physical limitations, that he is “ready, willing, and able” to return to work as long as it is within these limitations, and that he’ll have to hope that Employment Security agrees that he can work in some capacity or he will be denied those benefits, as well.  I will also tell him that, if we later obtain time loss compensation through a showing that he, in fact, did need retraining services or did have limitations on his ability to work due to severe depression, he will then have to pay back the unemployment benefits he received and that he may have to file an amended tax return if this change takes place.  I will have to warn him that, even if we obtain a higher rating of permanent impairment from a physician, overcoming his doctor’s concurrence with the prior IME results will be difficult.  In short, we now have a tough row to hoe.

Our work is never easy and, lately, it seems that even easy things have grown difficult.  We try to help, we share our knowledge, and we offer to step up and engage in the fight on our client’s behalf.  But, we can only help when allowed to do so and, more often than not, sooner rather than later is best – less expense overall, less time consuming, better chance of success.  So, why wait?