[Babebahn]

California Case... I heard something interesting from a friend who settled her case 10 years ago and re-opened her case because her condition got worse. Is this really possible? She is currently going through an attorney, looks like she will be getting more money for her back.
My condition has changed extremely, Drs wanting to perform another surgery due to Surgeon couldn't perform surgery needed at the time because "No surgeons at the time (2001) performed 4-7 levels at a time on a neck" SO I was left with an incomplete surgery with the probability of another surgery...no fair.
Any info on this is helpful, Im in California... Thanks 1171

[1171]

depends on how the case was settled and what benefits were reopened.
if there was fraud involved, a compromise and release could be overturned.

the same applies to your situation: it depends on how your claim was settled some use settled to refer to an Award others to a compromise and release. they are different.

[Babebahn]

Hi 1171, mine was a compromise and release

[1171]

as I stated you would have to prove that your agreement to the C&R was obtained through fraudulent means in order to get the court's approval of that agreement overturned/revoked.
it's very rare but there is some precedent for the court to withdraw it's approval of a C&R under such circumstances.
you can take your evidence to a comp atty to see if you have a provable issue.


if you succeed the carrier/employer, of course, would have a credit for the amount of the settlement against any future payments.

[Josie68]

(02-20-2015, 01:58 AM)1171 Wrote: as I stated you would have to prove that your agreement to the C&R was obtained through fraudulent means in order to get the court's approval  of that agreement overturned/revoked.
it's very rare but there is some precedent for the court to withdraw it's approval of a C&R under such circumstances.
you can take your evidence to a comp atty to see if you have a provable issue.

I am glad to see this question here.
My friend believes that the insurance company sent fraudulent documents to the AME and want to reopen her case with the information she now has.  Her case was closed in California in 2010.  Do you have any case references which shows a case(s) reopened due to fraud in California?

Finding an attorney to take the case is hard to find, because they do not have much $ to gain, so she may be doing this herself.  Thanks.

[1171]

your friend should discuss the issue with the atty that represented her at the time of the AME.
they are still the atty of record on the case and should at least hear her complaint.
she would have to show that the false information was knowingly sent with the intent to defraud her and that the AME opinion would have resulted in a greater benefits had the information not been part of the record.
she can also file a fraud complaint with local district atty and can contact the state bar about finding legal representation.

[Josie68]

(08-26-2015, 12:29 AM)1171 Wrote: your friend should discuss the issue with the atty that represented her at the time of the AME.

She filed for a reconsideration after her case closed and to do that she had to fire her attorney.  That is why she is on her own now.  She needs two things, one is getting an attorney who would take this up and some case references which were re-opened due to fraud.  She is willing to do it by herself, if she could get some case references to use as precedent.

[California_Help]

(08-26-2015, 02:23 PM)Josie68 Wrote:

(08-26-2015, 12:29 AM)1171 Wrote: your friend should discuss the issue with the atty that represented her at the time of the AME.

She filed for a reconsideration after her case closed and to do that she had to fire her attorney.  That is why she is on her own now.  She needs two things, one is getting an attorney who would take this up and some case references which were re-opened due to fraud.  She is willing to do it by herself, if she could get some case references to use as precedent.

Did she settle with a C&R or with a stip and open medical? If she has open medical she has 5 years to open her claim under LC5804. She can meet with an I&A officer if she cannot find an attorney, and I highly recommend it for what she is trying to do.

Since she let her attorney go did she pick up her file from his office? He should have a copy of the cover letter sent to this AME and an exhibit list of records sent to this AME. This should show what records were sent to the doctor.

What happened when she filed the reconsideration on this issue and did she get help from an I&A officer?

[1171]

the Labor Code contains the fraud provision:

5903. At any time within 20 days after the service of any final
order, decision, or award made and filed by the appeals board or a
workers' compensation judge granting or denying compensation, or
arising out of or incidental thereto, any person aggrieved thereby
may petition for reconsideration upon one or more of the following
grounds and no other:
(a) That by the order, decision, or award made and filed by the
appeals board or the workers' compensation judge, the appeals board
acted without or in excess of its powers.
(b) That the order, decision, or award was procured by fraud.
© That the evidence does not justify the findings of fact.
(d) That the petitioner has discovered new evidence material to
him or her, which he or she could not, with reasonable diligence,
have discovered and produced at the hearing.
(e) That the findings of fact do not support the order, decision,
or award.
Nothing contained in this section shall limit the grant of
continuing jurisdiction contained in Sections 5803 to 5805,
inclusive.

http://www.leginfo.ca.gov/cgi-bin/displa...=5900-5911

see also LC 3820
(a) In enacting this section, the Legislature declares that
there exists a compelling interest in eliminating fraud in the
workers' compensation system.

......
© For the purposes of this section, "statement" includes, but is
not limited to, any notice, proof of injury, bill for services,
payment for services, hospital or doctor records, X-ray, test
results, medical-legal expenses as defined in Section 4620, or other
evidence of loss, expense, or payment.

http://www.leginfo.ca.gov/cgi-bin/displa...=3820-3823

also:
a compromise and release agreement may not be set aside except upon a showing of fraud, mutual mistake of fact, duress, or undue influence.
[Johnson v. WCAB, 2 C3d 964, 35 CCC 362, 369 (1970).]

if your friend is representing themselves, then they should have access to a law school or legal library.