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LTL Picker for XPO (Forklift Operator) Logistics in Stockton with many Questions
#11
yes, apportionment is now much more common and PD ratings are significantly lower.
no, benefits for your prior fracture cannot be included in the comp settlement:
Labor Code §4664(a) provides as follows: “the employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.”
https://leginfo.legislature.ca.gov/faces...&article=3.

apportionment is a complicated legal concept that has a complex history in california.
it can be a difficult subject to understand for anyone and especially to those who see it working against their benefits-- when dollars are being taken away.
if your work injury was before 2004, your arguments about the prior problems not being disabling prior to the industrial injury would be legitimate.
as a republican, Governor Scharzeneger instituted a number of changes that limited and restricted worker rights and benefits. Workers comp was radically changed to reduce costs to employers including a change to the labor code that allowed it to be much easier for benefits to be apportioned out of the permanent disability rating.

Labor Code Section 4663 as enacted by SB 899 on April 19, 2004:

“...A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries."


a contributing “factor” to disability can be an asymptomatic pre-existing condition so long as that condition is a contributing cause or factor of the applicant’s present impairment, i.e., making it worse than it would have been without the underlying causative factor.

you can find more exhaustive discussions of apportionment concepts and problems by searching the DWC website for apportionment listings
http://www.dir.ca.gov/serp.html?q=apport...F-8&nojs=1

apportionment language can be tricky. doctors and attys often times have great difficulty expressing it correctly.
your atty should be able to help determine if there are reasonable arguments that would prevail against the AMEs opinion.
I realize this explanation does little to make acceptance any easier but you deserve to have at least a basic understanding of the issue.

I'm not sure how much more help I can be on the matter. it's really about how much time and energy your atty wishes to put into the issue. fees are small in workers comp and caseloads are high. those facts work against small dollar value cases without huge obvious medical errors.

you can talk to other attys but i think many would be reluctant to try to take on your apportionment issue and also split the fee.
Signature/Reminder :
........Each state has their own comp system; POST YOUR STATE to get accurate information.........
 
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#12
I just wanted to include that you should apply for state disability through EDD since your TTD has stopped.
http://www.edd.ca.gov/Disability/


Due to new rules in 2013 the insurance carrier does not have to advance PD payments. Have you contacted your employer after your AME P&S's you and asked if you can return to work? If they will not accommodate you, you are eligible for two vouchers, one for $6,000. for education and another for $5,000. that can be used for whatever. Ask your attorney about SJDV and how to apply. This is only if your employer refused to allow you to return to work after you were P&S and if your injury was after 1/1/2013.


I recommend asking for an appointment with your attorney, in person or phone to discuss your apportionment. Apportionment can be difficult to appeal. One way is for your attorney to depose the AME and try to get him to change his mind. This does not always work.

I recommend going back and editing your posts that list specifics like your employer your job and date of injury as you are in litigation and anyone can read these posts.
I am not an attorney.Anything I write should not be considered legal advice.I am writing from my own personal experiences,which is not from any sort of legal background. You should consult with an attorney over legal issues. In California, if you cannot get an attorney you can consult with an I&A officer.
 
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#13
Ok I just received a C&R settlement for $12,500. In it it explains that per my AME I have a PD between 4%-11% for my lumbar spine, which is a dollar amount they claim of $3,480.00 -$9,932.50 . (My WPI was set at 20% by my AME. They stated that they did not agree witg my AME Dr.s Alvarez/Guzman assessment used to increase my rating.

I am attempting to reach my attorney which is hard to do on a weekday and impossible on a weekend, but I am planning to not take the settlement. However i would like to know if im making the right decision. I have not receievd any PD payments yet and my TD ran out in July when I was declared PS. money is really tight but i have to stay the course. They gave me 10 days to respond or they would request a DOR to activate the case. What does that mean and should they have started my PD payments already? Are they purposely withholding them to get me to accept the settlement? Should I file myself? They sent me a message in Sept saying that they were preparing them for me but so far nothing
 
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#14
Ok I just received a C&R settlement for $12,500. In it it explains that per my AME I have a PD between 4%-11% for my lumbar spine, which is a dollar amount they claim of $3,480.00 -$9,932.50 . (My WPI was set at 20% by my AME. They stated that they did not agree witg my AME Dr.s Alvarez/Guzman assessment used to increase my rating.

I am attempting to reach my attorney which is hard to do on a weekday and impossible on a weekend, but I am planning to not take the settlement. However i would like to know if im making the right decision. I have not receievd any PD payments yet and my TD ran out in July when I was declared PS. money is really tight but i have to stay the course. They gave me 10 days to respond or they would request a DOR to activate the case. What does that mean and should they have started my PD payments already? Are they purposely withholding them to get me to accept the settlement? Should I file myself? They sent me a message in Sept saying that they were preparing them for me but so far nothing
 
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#15
See labor code section 4650  for law on making pd payments prior to a formal award
https://leginfo.legislature.ca.gov/faces...&article=3.
You can always request them. If you do, do it in writing. Keep a copy and send a copy to your atty. let them know you are not currently employed and have not been offered employment within your permanent restrictions by the employer.
A Declation of Readiness to proceed (DOR) is used by the parties to request the court schedule a hearing. A Mandatory Settlement Conference will be scheduled before your hearing is given a time/date.
Signature/Reminder :
........Each state has their own comp system; POST YOUR STATE to get accurate information.........
 
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#16
Ok I just received a C&R settlement for $12,500. In it it explains that per my AME I have a PD between 4%-11% for my lumbar spine, which is a dollar amount they claim of $3,480.00 -$9,932.50 . (My WPI was set at 20% by my AME. They stated that they did not agree witg my AME Dr.s Alvarez/Guzman assessment used to increase my rating.

I am attempting to reach my attorney which is hard to do on a weekday and impossible on a weekend, but I am planning to not take the settlement. However i would like to know if im making the right decision. I have not receievd any PD payments yet and my TD ran out in July when I was declared PS. money is really tight but i have to stay the course. They gave me 10 days to respond or they would request a DOR to activate the case. What does that mean and should they have started my PD payments already? Are they purposely withholding them to get me to accept the settlement? Should I file myself? They sent me a message in Sept saying that they were preparing them for me but so far nothing
 
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#17
(10-08-2017, 06:58 AM)XPOLogisticsPIToperator77 Wrote: Ok I just received a C&R settlement for $12,500. In it it explains that per my AME I have a PD between 4%-11% for my lumbar spine, which is a dollar amount they claim of $3,480.00 -$9,932.50 . (My WPI was set at 20% by my AME. They stated that they did not agree witg my AME Dr.s Alvarez/Guzman assessment used to increase my rating.

I am attempting to reach my attorney which is hard to do on a weekday and impossible on a weekend, but I am planning to not take the settlement. However i would like to know if im making the right decision. I have not receievd any PD payments yet and my TD ran out in July when I was declared PS. money is really tight but i have to stay the course. They gave me 10 days to respond or they would request a DOR to activate the case. What does that mean and should they have started my PD payments already? Are they purposely withholding them to get me to accept the settlement? Should I file myself? They sent me a message in Sept saying that they were preparing them for me but so far nothing

As I wrote above new CA rules state the insurance carrier no longer has to give PD payments until case has settled.
1171 wrote your attorney can make a request.

If you are in a financial bind and have not applied for CA state disability through EDD (link above) if cannot work due to your medical condition.

If you have been rated and deemed P&S and can work with restrictions you should attempt to ask your employer if you can return to work. If they do not allow it you can apply for the two vouchers I wrote about above. One is 6 grand for school, but some of it can be used for other things like $1,500 for computer. The other voucher is a check for 5 grand and you can use it for anything.
I am not an attorney.Anything I write should not be considered legal advice.I am writing from my own personal experiences,which is not from any sort of legal background. You should consult with an attorney over legal issues. In California, if you cannot get an attorney you can consult with an I&A officer.
 
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#18
Thanks again for the responses, they are appreciated. I received a notice in August stating that since i could not return back to work, that i was elighost oble for PD. The insurance carrier was waiting to receieve a report from my Dr. Before processing the paperwork. That was in August. If they sent me that paperwork indicating their intentions to make PD benefits available to me, can they then deny them or with old them?

Also is there any reason why my attorney would not want me to start receiving PD benefits because I have been requesting them to call my adjuster and as far as I know they have not yet done so.

These vouchers you speak of, if I am represented do I have to go through my attorney to receive them or should I speak to them about it first?

Also I am still awaiting my Consultative Rating, do you know what that is and are they asking me to settle because they dont want me to wait until it comes in?

Can they disagree with the Almarez/Guzman rating increase my AME Dr. assigned me and successfully lower my settlement total if I continue to DOR, or will I likely get a better settlement offer at the Mandatory Conference before hand?



t
(10-08-2017, 11:49 AM)California_Help
[quote='XPOLogisticsPIToperator77 Wrote:
Ok I just received a C&R settlement for $12,500. In it it explains that per my AME I have a PD between 4%-11% for my lumbar spine, which is a dollar amount they claim of $3,480.00 -$9,932.50 . (My WPI was set at 20% by my AME. They stated that they did not agree witg my AME Dr.s Alvarez/Guzman assessment used to increase my rating.

I am attempting to reach my attorney which is hard to do on a weekday and impossible on a weekend, but I am planning to not take the settlement. However i would like to know if im making the right decision. I have not receievd any PD payments yet and my TD ran out in July when I was declared PS. money is really tight but i have to stay the course. They gave me 10 days to respond or they would request a DOR to activate the case. What does that mean and should they have started my PD payments already? Are they purposely withholding them to get me to accept the settlement? Should I file myself? They sent me a message in Sept saying that they were preparing them for me but so far nothing

As I wrote above new CA rules state the insurance carrier no longer has to give PD payments until case has settled.
1171 wrote your attorney can make a request.

If you are in a financial bind and have not applied for CA state disability through EDD (link above) if cannot work due to your medical condition.

If you have been rated and deemed P&S and can work with restrictions you should attempt to ask your employer if you can return to work. If they do not allow it you can apply for the two vouchers I wrote about above. One is 6 grand for school, but some of it can be used for other things like $1,500 for computer. The other voucher is a check for 5 grand and you can use it for anything.
[/quote]
 
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#19
yes they can disagree with the AMEs assessment of your future earning loss just like you can disagree with the apportionment. the problem for them just like it is for you: they have to persuade the court. if they want to take it to hearing, they have the same right to do so as you. whatever reason they have for their settlement offer you do not have to accept it.
the way I see it, if you are going to "give in" and accept the apportionment they need to do the same on the assessment; they shouldn't "win" on both issues.
the closer you are to a hearing date the higher they will go to settle. neither atty wants a hearing. which one will flinch first....?
Signature/Reminder :
........Each state has their own comp system; POST YOUR STATE to get accurate information.........
 
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#20
I recommend discussing all these issues with your attorney.

 Again, the IC does not have to pay you the PD now, but 1171 recommended asking your attorney if they can. I do not see any reason why your attorney would benefit from you not being paid PD. The IC will withhold 15% of any PD award to pay attorney. I think this IC is doing what many are now, waiting to pay PD at end of claim. I recommended ways to possibly get other income for example state disability. I have seen instances where EDD allowed CA injured workers leeway and many have gotten approved even after deemed P&S, beyond the time allowed to apply etc. It can be paid up to a year.

Do you want to attempt to return to your former job... and does your primary doctor state you can work now, either with or without restrictions? If so I recommend to start the interactive process to see if they can take you back. You can discuss this with your attorney. If they do not allow you to come back then you should be eligible for the vouchers. Your attorney should help you with that as well.
I am not an attorney.Anything I write should not be considered legal advice.I am writing from my own personal experiences,which is not from any sort of legal background. You should consult with an attorney over legal issues. In California, if you cannot get an attorney you can consult with an I&A officer.
 
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