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Trapped in Workman's Comp Hell
Published on September 23, 2007 By Phil Osborn In Surgery

October 08, 2008

So, to wrap this up, I got several thousand more dollars from the QME evaluation.  I don't know if all the prep, bringing my friend as a witness, etc., helped, but it probably didn't hurt.  The process overall did not seem very objective, and the award, as always with Workman's Comp, covered a small fraction of the actual damage, disability, pain and suffering - but I did get further medical as needed.  However, for those others in my position, this ending note should at least provide some encouragment to do what they can to effect the outcome.  It might even work.  So far, for me, it has worked about 50% of the time, anyway.  Good luck.

March 15, 2008

So far, so good...

After over a month, I finally got the evaluation in the mail from the doctor who I finally chose.  So far, so good.  He indicated in his evaluation that my disability should be much more assigned to work causes - namely being karate chopped in the back of my neck, than to prior injury.

This has been overall a most frustrating and stressing set of events.  I didn't want a QME to begin with, but was threatened by the insurance agent that they would request one if I didn't.  Then it took about a year to set one up, only to be cancelled and another couple months delay with another doctor. 

Ironically it now appears that this will likely cost the insurance more money.  I also had to take a half day off from work when I finally did get the evaluation and it took about five hours of mostly sitting and waiting. 

I got a friend to come with me as a witness, which may have helped or may not.  My friend is a furry artist - he makes a living doing portraits of anthropamorphic animals (think Mickey Mouse, but sexier).  He had his sketch book with him, as ever, and the report indicates that he was sketching my exam, which may be true. I didn't look.  More likely, he was drawing some improbable or ontologically impossible sexual encounter between humanesque furry animals. 

The doctor who evaluated me was quite elderly and seemed to be a kindly person, as opposed to the doctor back in the early '80's who totally lied about everything on the report about my knee injuries and then panicked and completely reversed his positions when I found out about the lies and demonstrated that there was independent evidence completely supporting my position.

January 5, 2008:

OK. So, after several calls and even more call-backs from Workmans Comp supervisors about why I was not able to use the doctor of choice (becuz he cancelled the appointment via his secretary, claiming a conflict of interest), I was told that I would be provided with ONE new doctor to choose from. At one point a supervisor was quizing me as to why I needed a new doctor and, when I explained the situation, told me that she would have to investigate further. When the WC Super got back to me, she told me that she had had it (the conflict of interest) explained to her by the doctor's secretary, but would not tell me what the problem was.

When I got the new doctor's name, I ASAP got online and checked for any public records on him. The only thing of any worth that I could find was a record of a case in which he had assigned a higher disability value to a patient than the original doctor, which sounded good.

You're only given ten days to select a doctor from the time of issue. And the time of issue is sometimes a couple days short of the time the list is actually mailed, and then there is the mail time, so I did not receive the paperwork until January 2nd, with a deadline of today - effectively yesterday, assuming the doctor's office is closed on Saturdays.

Thus, I didn't look at the address of the new doctor until after I had made an appointment for February. I was told to plan on four hours for that appointment, BTW, indicating the usual contempt for the time value of the patient that is endemic in WC. It also makes it more difficult for me to line up a witness, as I was told that I could have a witness present - but for four+ hours?

I noticed that the secretary's voice on the other end seemed awfully familiar, however, and when I did look at the address, I suddenly realized that the new doctor had the same address as one of the two doctors who my attorney friend had warned against.

So, what are the odds that I accidentally got a physician who works at the same clinic as one of the previous three? Given the number of such physicians in the local area, probably not more than 1%. The message: don't rock the boat or protest being screwed over. OR ELSE...

December 11, 2007:

Well, I was wrong. the address for the doctor that I chose originally (see above), waited months just to schedule an appointment and then had cancel on me (see above) wasn't the same address as the insurance fraud chiropractor's office, although it is nearby on the same street. My memory is not what it used to be and never was. No matter. Yesterday, I got a call from the doctor's secretary asking me to call to answer some preliminary questions.

She called my message only number, one of the more consistent things about all the doctors I've had any experience with over the years with various Workman's comp cases. They absolutely won't call your work number, I suppose as that might upset your boss and convince him to get another WC carrier. And of course the doctor is above all this and pure as the driven snow. Right.

However, after I called and left a message to please call a different number - not mentioning that it was my work number - then of course she did call today, only to inform me that the doctor was not going to be able to see me, due to a "conflict of interest." She was unwilling or unable to give any other details. So much for ethics. She could've left me that message to begin with, but instead made up a tale about needing to schedule something or other preliminary to my exam. I.e., this is probably a good indication that this was not a good choice of doctor to begin with.

This after MANY months of waiting to get an appointment. When I suggested to her that this was certainly grounds for me to ask for a new set of QME doctors to choose from, she told me that in fact I would have to choose from the remaining two on the list, both of whom my attorney friend recommended against. Interesting that she would profer that bit of information, as the doctor's assitant, not a member of the WC bureaucracy...

When I called the 800 number of Farmers Insurance posted on the WC sheet in the company lunchroom, as I had not remembered to bring my bundle of WC material to work with me and didn't have my agent's #, the lady at Farmer's main office gave me a non-working number to call to begin with, and then another number for the region, which worked, and finally got me thru to the local office, where my agent was out of the office and I was transferred to another agent whose message box was full...

So it goes. I finally got thru to my agent's supervisor, and advised him to cancel any records transfers to the doctor in question, and I suggested that I should ask for a new set of doctors to choose from. He repeated that same message, that it is apparently policy now at WC, to simply deny all requests for new QME panels. ...

November 17, 2007: Update. Well, I have my appointment for January 30th, with the stipulation by the appointment person that if I don't show or fail to cancel ten days in advance, then I will have to pay a fee of over $300. Then I noticed the address of the doctor.

In the mid-90's, I had a minor motorcycle accident when a lady rear-ended me in San Francisco as I was starting my journey back to the OC. I was able, with some difficulty, to drive the injured bike back, although it took me about 8 hours. She never contacted her insurance, and, getting nowhere fast, I called a friend, and his friend informed me that there was this Russian lawyer in Burbank who had gotten him $20,000 for medical and he wasn't even hurt. I wasn't interested in ripping anyone off, but by then a mad-dog attorney seemed very attractive.

So I call this guy and he tells me to go to this chiropractor in Santa Ana. The chiropractor was obviously a total sham, insurance ripoff outfit, run by ex-con Russian mafia, and I quickly cancelled any further involvement with them after their first "treatment" ended up with me going to the ER and being diagnosed with a concussion - due to their treatment, not the original accident. And, for years afterwards, I kept getting bills of about $1,000 from their collection agency.

Interesting to note that the QME doctor that I'm now scheduled to see is at the same address. Note that I notified the local Federal Marshal about what I had witnessed at the chiropractor way back then, but they told me that they only had two people assigned to cover the whole of the OC, and uless I were willing to personally swear out a complaint, they simply did not have the resouces to deal with the situation.

So, when I noticed the address this time around, I called the Santa Ana PD with my concerns, and they, in turn, implying that this was a little too big for them to handle, referred me to the Federal Marshal. However, with all the hype concerning "Homeland Security," it turns out that there is now ZERO presense by the Federal Marshals in the OC, whose economy is larger than most nations, and the only phone number is for their L.A. division. Thus, while kids are being thrown in prison in droves for possession or tagging, we leave alone completely the serious, big-time crime.

My worry now is that if in fact this QME doctor is another fraud artist, like those Russian mafioso chiropractors, then he may maintain credibility via sacrificing clients without attorneys who can help ensure that he gets properly compensated, such as myself. What a can of worms! I have a bad feeling that this is going to end up in the WC Appeals.

October 1st: So, I decided on a doctor and called to schedule and appointment, only to be informed that it would either have to happen in about 3 weeks, or not until January. Meanwhile, yet another callback from the WC people, this time informing me that indeed I could very likely tape my session with the doctor, but only after going before a workman's court judge to get an order from him. A precedent setting case was cited for me.

For details on how to do this - go before a judge, I was once again given the number for the local WC information officer, the place that always puts me on hold, every time -"Due to unusually heavy volume" - and never returns calls. However, listening to the recorded msg. from them, I caught a part where the recording stated that they could not give out legal advice...

Given the time frame and the fact that this means that I will undoubtably have to spend some time at the local Law Library, there is no hope of getting everything together for the lone October opening with the doctor. So, now everything is pushed to January.

Sept 30th: At Kinkos I discovered late yesterday that the fax from the surgeon came in. Unfortunately, it conflicted with the negatives from my attorney friend. Or course, the surgeon himself has been appointed by the insurance company, from whence he gets paid, so perhaps his choice of another doctor reflects his own interests. It would likely be impossible for me to set up a double-blind experiment to make that determination at this point, so it comes down to the following:

1> Go with the 3rd doctor that my attorney knows nothing about. No bad news is statistically good news.

2> Assume the surgeon's choice reflects his own biased interests.

3> Or, assume that the surgeon is being honest and simply thinks that his choice is the best deal for me out of the three.

4> Consider the possibility that the surgeon knows something about the 3rd doctor that makes him think that he might be even worse than his number one choice.

5> Consider the possibility that the surgeon knows little or nothing about either or both of the other two doctors, and is simply basing his choice on knowing the one doctor.

Unfortunately, this then comes down to whether I can trust the surgeon to make an unbiased and/or fully informed choice. Since no other information was included in the fax - the name of one physician was simply circled, there is nothing much to go on.

So, folks, there it is. If you are stuck in this position, my tentative conclusion is that perhaps the advice of my attorney friend initially was not so good. When I first discussed the case with him a year or more ago, he told me that there was little that an attorney would be able to do for me, as the new laws made everything pretty much cut and dried.

Now, however, an issue is on the table that does indicate that an attorney could be an asset, namely the choice of a medical examiner. An attorney has the right to propose an agreed medical examiner, based on his or her knowledge of the biases and record of the doctors.

However, thinking back to my earlier experience in the 1980's, when I had an attorney representing me in a similar case, it is clear that there are other issues, such as whether the attorney is actually going to go for the best outcome or simply play ball with the insurance companies who hold most of the cards, leaving one with 45% of a low award to begin with, and many issues taken off the table entirely, due to insurance company pressure.

And in that earlier case, my attorney chose a doctor who, as it turns out, was known far and wide as an insurance company hack. If I mentioned his name at a restaurant where I typically ate dinner with some friends who worked at the local McDonald Douglas plant, it got hoots of laughter and ribald commentary. I.e., the doctor and his buddy attorney were in cahoots to steal my coverage.

Sept. 29th: On the 27th, I finally managed to contact an attorney friend who has given me good advice in the past and makes a meager living doing a lot of pro-bono civil rights work locally, defending the homeless, etc. In fact, I met him in 1999 at a meeting where he gave a talk on some aspect of civil rights. He used to handle WC, but gave it up after the Gubernator's WC bill, which he said basically totally screwed the workers, and left an attorney with little to do.

He told me that he knew two of the doctors and that he would not recommend them, as they typically took a strong position in favor of the insurance companies. His general position was that - my words - the system was a train wreck for the injured workers now. Or, as another friend of mine phrased it, that the QME doctors were typically those who couldn't make a living otherwise as a doctor, likely due to too many malpractice suits. My attorney friend suggested that I check with the insurance company to see if they would go for an agreed medical examiner, and suggested a particular doctor who he said he knew to be fair and objective.

Well, the insurance companies agent suggested that I contact the surgeon who has been handling my case, doing injections, etc. for the past year or so for his recommendation as to which of the three doctors I should choose. She told me that they could easily hold off until Monday before pre-empting me. So, on instructions from the doctor's nurse, I scrambled to get a fax off - not having any phone service but my cell phone, and the doctor apparently does not answer email. No response.

And the agent told me that they could not allow an "Agreed Medical Examiner," as the law was quite explicit that only an attorney could go that route. So, forget the court rulings about pro per having the same rights as an attorney. WC only pretends to be a judicial system, when in fact it is simply a political bureaucracy, just as influenced by the concentrations of wealth that end upas campaign contributions as any other.

As a bureaucracy, even though they have the powers of a branch of the judiciary, they are exempt from the rules derived from centuries of litigation through the state and federal courts and the Common Law tradition preceding them, rules ostensibly designed to enforce fairness and equity accross the board for all parties. Instead, the alleged standard here is the greatest good for the greatest numbers - although in reality the standard is purely the political deal that stinketh the least for the various corporate and union stakeholders.

Thus, the random selection of three doctors from a massive list of doctors who are probably not the best and brightest to begin with. And, if the doctor rules too strongly in favor of an injured worker, regardless of the facts, then when the insurance company makes its selections in other cases, they will know to avoid that doctor.

Sept. 26th: The word from the Workman's Comp Headquarters is that the issue of whether I can demand a recording is not settled, and they take no position on it, leaving it up to the doctor's discretion. The lady there suggested that I petition to the court. Of course, I have all of one day to do that and get a response.

BTW: If anyone has any dirt on these doctors or other information that would help me make a choice tomorrow, please feel free to drop me an anonymous post at my philanova@mail.com box, which I rarely use anyway - in case some troll plans to spam me.

In the early '80's, I had a similar situation, in which I ended up going to the WC "court," where, first I got a sizeable chunk of cash for compensation that the insurance company - Travelers - had already agreed to, and then had simply ignored on the apparent assumption that I was not competent to file the papers, etc., after my attorney ditched me illegally, without notifying the WC Board.

I then went aftrer another issue, the back payment of wages for the period of over a year during which Travelers sat on the case and scheduled meeting after meeting, only to cancel each one at the last minute, all this after the court had ordered them to provide training and placement services. Under the law, they were totally liable for wage payment for the entire period, since it was their decision to keep stringing me along. This time I got a crooked "judge" (these people are not really "judges" under any normal definition, answer to no one, and have virtually zero liability for any "errors" they make), who lied like a dog on the court transcript and falsified or reversed virtually everything I said. So much for trusting the court.

For those who are unfamiliar with the WC system, it is useful to point out some salient facts:

The system is adversarial, not objective in any way. The awards for particular types of injuries are set by law and start out at a fraction of what you would get in any other circumstances for the same injury - say from a car accident. Then, the attorneys take their cut, 10-12% of the total award. That's ALL the money the attorney gets, so if an attorney goes after certain verbotten issues, then he will be blackballed by the insurance companies, who can raise his or her costs arbitrarily simply by filing more discovery paperwork and other simple tricks that will overwhelm the attorney and leave him working for $2 an hour or less.

Thus, an insurance company can simply do as Travellers did back then, sit on its collective thumbs and wait the victim out, knowing that after he has lived on the streets or out of his van for a year or so, he will accept whatever they hand him. And virtually no attorney who depends upon WC cases for his income will touch issues such as back pay for the arbitrarily long periods the insurance company sits and waits, even though this is very clear in the WC Code.

In fact, in most cases, the attorney will tell the victim that "Well, we have a strong case, and we might win in court, but there are some issues and in some cases all we have is your word, so they are offering 50% of the award up front."

So, there you have the typical outcome: 45% (after the attorney takes his cut for filing some paperwork and having a drink with the insurance company attorney) of a rather meager sum to begin with.

Today, Sept. 25th, I called all three doctors, some time after 1PM, during my lunch break. Two of the doctor's assitant's told me that under no circumstances would I be allowed to digitally or otherwise record any depositions or discussions, etc. Dr. Chiu's assistant told me that I would get the same response from any doctor I called.

Dr. Leupold's assistant told me that IF I were an attorney, then I would be allowed to do so. I pointed out that I was acting in pro per, and, as such, should have all the privileges of any attorney. He said that that was too bad, and that the only way I could record would be to bring in a court stenographer. This guy had clearly been asked this question before. I am awaiting a call back from the third doctor, Dr. Sharma.

I then called the information number for California's Division of Worker's Compensation Medical Unit to get their opinion on this matter - 800-794-6900, ext. 4, in case anyone needs it. The person who answered was uncertain as to the legality of denying the right to record to the patient - while allowing the doctor to do so, BTW. She sent me to someone higher up, who then referred me to someone in their legal dept., who wasn't available, but who was supposed to call me back, and so far has not. I was also given the number of the local Santa Ana information person, but could only manage to listen to a recording before my afternoon break was over.

Note that I already know the facts of my case, and any recording would be of my personal testimony. Also, I am well aware that it would likely be inadmissable in court. I.e., it would only be for my own records so that I could identify discrepancies when I got the doctor's report. Thus, the only conceivable reason that the doctor would object to such a record being made would be so that he or she could deny that either he or she or I had said what I or they actually said. This is unfortunately all to illustrative of the WC and its actual commitment to preserving privilege and protecting the employers from liability for their actions or negligence.

Also, for the information of those who are interested in these matters, in California, it is illegal for an employee to audio-record even actual crimes being committed by management, while management is free to record any and all employee behavior at will. In one case reported a few years ago after passage of this law, an employee who was physically assaulted on the job and recorded the incident had his case thrown out because the recording was illegal, and then was himself charged with the crime of recording the assault.

Update: Ok, I discovered that I have three days, starting today.

Part one of my plan is to ask each of their secretaries if I would be allowed to audiotape my exam and any verbal questions. In the early 1980's, I had an agreed upon medical examiner for a WC injury who lied like a dog after examining me, recording everything on a mini-cassette recorder, and then having his nurse take a lengthy deposition also on a mini-cassette recorder. It was only by luck that my attorney sent me by mistake the complete report by the doctor. When I read it, I was astounded, as every fact that I had related to the doctor or nurse had been reversed or completely twisted in ways that totally contradicted facts that were already documented. It was a tissue of lies, and I went through it line by line and pointed out around one hundred major errors.

My attorney, who I later discovered was buddy buddy with the doctor and attended the same synagogue, then sent my objections directly back to the doctor, who promptly reversed his entire finding. A few years ago, BYW, I mentioned this incident to an insurance agent in WC who recognized the doctor and told me that now he is working the other side of the table, generating phony reports exaggerating workers injuries. So it goes.

My question to the reader now is whether my request to record the exam might be taken as hostility or might prejudice the doctor against me? How should I phrase it to not offend? Or should I simply record without even saying anything - an easy option with my tiny MP3 device?

Update: OK: here are the three doctors from whom I'm supposed to choose:

Jason J. Chiu, MD - Santa Ana, CA

Naresh K. Sharma, MD - " "

Arthur J. Leupold, MD - Tustin, CA

I will try to follow the progress, outcome, etc. here, for the edification of those of you who may be unfamiliar with the Byzantine and corrupt Workman's Comp system.

About 2.5 years ago, a co-worker, pretending (in my estimation) to be joking, snuck up behind me while I was working at my computer, where I do a 1,500 page website for the Chinese/American company, while I was yawning and stretching. He then gave me a karate chop to the back of my neck, which has suffered previous injuries and strains. After a week or two, I began getting clicking and knocking when I turned my head. Then I began having problems with my left arm, including sudden twitches, which was unfortunate because I had switched to it for mouse work after developing pre-carpel tunnel problems in the right wrist.

Long story short: I then applied to see a doctor, and have been through 2.5 years of treatments and several specialists. One of my cervical spine disks is clearly ruptured on the left side. The co-worker, who has in my estimation - having observed him for 16 years - served as a kind of "enforcer" for management at the company, was never disciplined, and the manager on site at the time claims to have seen and heard nothing. However, the WC carrier had a reported native Chinese interview the co-worker, and they accept my story.

I did NOT, BTW, get an attorney, as I have dealt with the WC system before, and know that most WC attorneys cannot be trusted. The insurance companies hold all the cards in the WC system in California, and any lawyer who survives, either has to be a real genius or else plays ball with them. Believe me. I have been told this by many attorneys, as well as from my own sad prior experience, when my attorney ditched me when I asked him why he wasn't following the law.

Several months ago, then, I received a letter from the Insurance Carrier agent handling my case, asking me to please request a "Qualified Medical Examiner" (QME), stating that if I did not ask for one, then they would do so. So, I sent in the request, and, finally, after several bureaucratic SNAFUs, I received a letter yesterday (Saturday) listing three doctors, from whom I have to make a choice within the next day or two at most, as they only allow ten days to respond, at which point it defaults to the Insurance Carrier to make the choice, and the letter was sent out on the 17th.

So, still not able to get on line with my new Vista disabled laptop, I'm using the library - with 4 minutes left - and likely a cybercafe tonight to try to get info on these doctors. I stupidly realized that I left the letter at home, so I'll have to post the doctor list tonight or later today from a cafe'.

Suggestions? I tried to get info from various reporting agencies, etc., yesterday, on the doctors, with very limited results.

Any good discussion groups? Resources that can be quickly accessed? Thanks....

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