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Firefighter denied performance of duty disability. My surgeon has determined I am permanently disabled. New York State sent me to one of their doctors who agreed and listed me permanently disabled. Apparently the state didn't like this result so they sent me to another doctor who says I can go back to work. It seems the state is doctor shopping to find a result they like. I received a disability denial today. I called my attorney and we are appealing the case. Has anyone ever seen this before? Any advise? What are my chances on the appeal? This is very worrisome as I believe the state can take the advise of ANY 1 doctor they like.
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01-28-2013, 10:12 PM
(This post was last modified: 01-28-2013, 10:34 PM by 1171.)
yes, either party at their own expense can obtain another medical opinion.
often doctors make mistakes or additional findings, records, histories, tests etc. are available which lead to a different conclusion.
hopefully the appeal will be judged on the quality of the medical evidence and soundness of the reasoning and supportive documentation.
it happens all the time; that why there is an appeal process.
all else being equal the quality and persuasiveness of the evidence should always be the determinative factor.
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It's hard for anybody to give you the odds on the appeal. Stay with it and the medical evidence will tell the story. You have to fight for your rights and hopefully you have a good lawyer in your corner.
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Dr shopping is normal the judges are used to it....As long as you have the xrays and the tests to back you up and a good lawyer you will be fine.Surf this site you will see it happens alot,can you afford the fight(wait)
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(01-28-2013, 10:12 PM)1171 Wrote: yes, either party at their own expense can obtain another medical opinion.
often doctors make mistakes or additional findings, records, histories, tests etc. are available which lead to a different conclusion.
hopefully the appeal will be judged on the quality of the medical evidence and soundness of the reasoning and supportive documentation.
it happens all the time; that why there is an appeal process.
all else being equal the quality and persuasiveness of the evidence should always be the determinative factor.
That's the thing. My second, and last, surgery was 2 1/2 years ago. There has been no further tests. I see my ortho doctor every month and still get a shot of lidocaine
every quarter. My condition is only getting worse due to age and scar tissue. I guess I'm having trouble trying to figure out how the state argues against my doctor AND one of their own doctors. I'm worried they will rule against me only because they can, not because its right.
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One of the reasons they play these games is in hopes you will give up and go away. Then they don't have to pay you and save money. Doesn't make it right. The state can play the same game that WC does in hopes of saving money. It helps them weed out those that are not as bad off as they claim sometimes. If they put people like us thought hard times we can't just run out and get a job and pay our bills. But those that are okay sometimes give up and go back to work.
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01-29-2013, 02:01 AM
(This post was last modified: 01-29-2013, 02:07 AM by 1171.)
not every injured worker's claim or medical opinion is "right".
the problem of course is how you tell which one.
you are correct - we are not promised perfection.
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(01-28-2013, 09:31 PM)Thisdman Wrote: Firefighter denied performance of duty disability. My surgeon has determined I am permanently disabled. New York State sent me to one of their doctors who agreed and listed me permanently disabled. Apparently the state didn't like this result so they sent me to another doctor who says I can go back to work. It seems the state is doctor shopping to find a result they like. I received a disability denial today. I called my attorney and we are appealing the case. Has anyone ever seen this before? Any advise? What are my chances on the appeal? This is very worrisome as I believe the state can take the advise of ANY 1 doctor they like.
(1) Did you notify your attorney that the state is requesting another IME? Typically, an adversarial party is only permitted one IME without permission from the court. The courts are usually reluctant to provide subsequent IME unless there are are extreme circumstances. Although you case is in front of an administrative agency, you always need to notify your attorney of these occurrences.
(2) It is typically very difficult to receive a remand on an appeal from an administrative agency's decision. The appeal is done through an Article 78 proceeding and the courts give great weight to the agency's decision unless they find that it is arbitrary and capricious. Even then, the court will remand the matter back to the administrative agency to further consider the evidence. Likely, the admin agency will come back with the same determination.
