I'm not suprised but what can I do?

[shugarcookie]

Hi all, it's been a while so I'll have to update and forgive my long windedness (is that a word?).

I had rotator cuff repair, clavicle excision, decompression and bone spurs removed in 7/06. After hitting a certain point it stopped getting better and I've had continuing problems since. Although my Dr released me in January to unrestricted duty I didn't have a job to go back to and since I was in so much pain still couldn't find anything I was able to do. No voc rehab was ever offered. I asked for authorization for a 2nd opinion and change of physician because I felt mine was not listening to me and a year after my accident I should have doing much better (in VA you can't change physicians without the IC ok) and was told by my CM she would find me one. Yeah, sure, I'll just wait here. Four months later in July, I couldn't take the pain anymore and went back to my regular Dr who put me back on disabled status and I followed his instructions including having a minor surgical procedure and PT after he diagnosed a frozen shoulder. Even the PT rolled his eyes and said outright it wasn't a frozen shoulder. Heck, even I knew that! Anyway, I did as I was told so no one could say I didn't try. After that failed to work he sent me for an FCE and gave me 15% impairment rating, MMI with permanent restrictions in mid Oct. No time loss was ever paid for that period. So here I am today.

I still believe there is something wrong with my shoulder and that he's not addressing it. The CM told me months ago if I found a Dr willing to take the case she would authorize a change of physician. Well, I did. So I called her. Many, many, many times. I guess her voice mail doesn't work. I finally caught her at her desk today. She will not be authorizing the 2nd opinion or change because I went back to my regular Dr!! Having asked her the 1st time in March and finally been overwhelmed enough by the pain in July to go back to my Dr I told her I waited quite a while but didn't have much choice, I had to seek medical care somewhere. Apparently, having gone back terminates my right to a 2nd opinion. At least according to her. She says they are now moving toward settlement of my case and since I'm no longer working for my former employer they are considering voc rehab. Gee, ya think? I didn't tip my hand and tell her I am already working with voc rehab on my own so I won't be under their thumb. Waaaay ahead of her in that game.

Yesterday I got paperwork from them in the mail to sign and return. One is the agreement to pay me benefits which they should have sent out, oh, a year and a half ago! The other is a termination of wage loss award. They helpfully filled it out for me including the part about my having returned to work at a wage equal to or greater than before, I just need to sign and date. Boey, gude ting huked on foniks werkt fore me so I wuz abel too reed tat beefore I sined it!

Now, the first thing everyone will say is get a lawyer. I would LOVE to. One problem. The job was near minimum wage and very part time. My weekly time loss was only $113. I've consulted several attorneys and all said the same thing. The allowable settlement in the state of VA in my case is probably only going to be about $5000. There's not enough in it for them to make it worth their time. Plan B now is to see if I can get an attorney I'll just pay out of pocket to consult with privately and do this technically unrepresented. Considering the small amount involved several suggested it wouldn't be too hard to get them to just settle because their (the IC's) attorney fees would be more than the settlement (if they try to drag it out, therefor, it would be cheaper for the IC in the long run) and the state of VA almost always requires the IC to include lifetime medical benefits as part of any settlement, seperate and exclusive from any monetary settlement so there's little to negotiate, state law is pretty clear about what's worth what.

Ok, now that I've poured out all my frustration and vented, has anyone ever worked out a settlement in that way, one that (on paper at least) should be fairly cut and dried and likely won't get a lot of resistance? If even the lawyers are telling me to try this it's something to consider but I'm pretty nervous even though I'd have an attorney look it all over for me. Does this sound like really bad advice in this case? I can't really tell. With all the recent developments I did make another consultation appt with yet another lawyer for the 26th to keep my options open.

[jayne]

do you have ombudsman for your state

[1171]

most states mandate that all attys fees are approved by the state comp board.
if you are trying to be "represented under the table" then you have no legal protections.
lawyers who recommend going outside of the law should be given a wide birth

[shugarcookie]

VA does have to approve atty fees and I'm guessing with settlements this small they would go pretty easy, yet another reason every lawyer so far has said it sucks to be me but doesn't want the case. Even at the max which I think is 20% but I could be wrong it's not much.

Is it outside the law to advise a client on something like this but not actually represent them in the case? I had no idea. Too bad because that seemed the most practical solution. Back to the drawing board.

Yes, the state of VA does have ombudsmen and I'm waiting for one to contact me. I called yesterday when I got these forms from the IC. The woman did say it might be early next week before someone called though.

Why does this have to be so complicated? Dealing with my regular health insurance is a walk in the park compared to this and I thought THEY were a pain

I should clarify that in my OP I meant that the IC would wind up paying more to their attorneys than the amount of the settlement if they drag it out much, not that the attorneys I consulted said they would charge me more than the amount of my settlement. I see now why you mention the cap on fees.

[1171]

It's not your claim, your insurance nor your premiums;
when you are using someone else's checkbook it gets complicated.

one alternative is to let the comp commission order the additional benefits according to the Virginia rules and regulations or represent yourself.
You can try to get legal representation thru the Virginia state bar.
lawyering is a business and not surprising that they don't want to work for less. Not many of us want minimum wage work either.

[capricorn]

Shugarcookie...I can't help with the legal end but wanted you to know that I had the exact same surgery and 7 months down the road I have been released from the surgeon and am in the hands of a PM Dr. and his PT who tell me this is probably as good as it's going to get. WHY??? No one knows. Is it the original PT who crushed my shoulder with her palm and kept crushing it in the table as she was pulling my neck away from it???? Maybe. I wish you all the best and pray all works out the best it can for YOU!

CAP

[shugarcookie]

Ya know Cap, I've heard from a few people that sometimes it just doesn't really get better and if that's the case ok. I keep asking my ortho if this is the best I can expect but he won't tell me. I have the feeling it probably is and if that's the case then please be honest with me and let's move on to teaching me how to live with and work with what I've got and stop letting me think something is still wrong. How hard is that?

I can't imagine the pain I have is comparable to what yours must be, that sounds horrible. It's appalling to me that we can't sue for malpractice in this system Until I hear for sure that it's not getting better for me (another reason I so want another opinion, I've learned not to trust my ortho) I keep thinking it's torn again. When everyone from my husband's boss to my family doctor who's had rotator cuff surgery asks when my 2nd surgery will be it makes me wonder. All I want is honest answers but all I get is him dancing a side step and breezing out of the room

I know there's no easy answers for me but I appreciate you all just letting me do a virtual primal scream here. No one else seems to get my frustration right now.

[sparkey]

I worked with a girl that was in a car accident where a truck stopped right up on top of her vehicle trapping her inside. She had rotater cuff surgery 3 times to get it right. Just to let you know, that yes, sometimes it takes more than one surgery.

Also i just met a man that said he had rotater cuff surgery awhile back and still had alot of pain. He never believed in acupuncture, but decided " what the heck?" and did it. Well, i swear this guy is on and on about how good he feels to this day and is going to be giving me the name of the acupuncturist. I am really thinking about having them work on my neck/shoulder to relieve this pain some, if not all.

Good luck.

[lfoster21]

I am sorry you are in such a messy situation. I too am in VA and I just wanted to add a couple of things that I have learned. Maybe the difference is that I have a lawyer, I don't know, but I have been allowed to get a 2nd opinion. Originally I told my NCM that I was thinking about asking my surgeon for a recommendation for a 2nd opinion and how would that work with the i/c. She said I just needed the referal and that was all that needed to happen. In VA, once a Dr. has been approved, anything he writes a perscription for, they have to pay it. So, I talked with my Dr. (an orthosurgeon) and told him that before this case was settled, I'd like to see a Neurologist just to make sure he thought the same thing as the Ortho.. He was happy to write a script for a 2nd opinion and gave me a list of names to choose from. The i/c approved it within a week after that.

Also, a co worker of mine, who also fell and hurt herself, has just been part of a lawsuit against the co. and she won. She called me and gave me all the info. that she had learned, thoughout the process. She said that a w. comp lawyer can not give you advice on sueing either the co. or the i/c, however an eeo lawyer can help you sue the company, if they refused to find you a job with your restrictions and a personal injury lawyer can help you if the i/c refused treatment that cause additional health problems. In her case, she applied to 37 positions, within our co. all that she was either qualified for or over qualified and they all turned her down. That is why she chose to sue the company, under the ada law, the co. can not turn you down, due to a health reason...Just last month, she won her case and she is back working for the co. with her restrictions. I, on the other hand, have had 2 specific procedures denied and now, because of that, I have permanent damages that would not have arisen if I had been given my treatments when they were ordered. Anyway, once I settle with the i/c I am going to be suing the i/c for neglect.

So, you can sue...if either they prohibited you treatment that causes more problems (sue the i/c using a personal injury) or if your job would not take you back or find a position that you could do with your restrictions (sue the employer, using an eeo lawyer).

Good luck.