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Penalties and Sanctions
#1
I settled my WC case with a stipulation including future medical so there is no future money for an attorney and I am having to represent myself.  Twice now my employer has improperly withheld or delayed treatment and I have full documentation for both incidents.  I filed motions for Penalties and Sanctions against my employer for violating section 4610(g)(1) of the California labor code.   I had a status conference and the judge has set both motions for Mandatory Settlement conference which will be followed by a hearing for penalties and sanctions.  My employer is now wanting to settle prior to the MSC and the hearing, but I have no idea what is a reasonable settlement.  In one incident they delayed my access to pain meds for 10 days, and in the second incident the delay was over a month.  Does anyone have an idea what a fair settlement would be?  The meds that were denied and delayed run about $500 if that is a consideration.
 
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#2
did you pay out of pocket and are trying to get reimbursed?

FYI:
until the atty of record is dismissed or substituted out the atty is still your legal representative; their fee is not just for past efforts-it for life of the claim.

aren't you familiar with the penalty statutes on which you based your filing? what is it about the language that you don't understand?
the employer is not going to settle now for more then what they will be obligated to pay if they go before the judge and lose.
you should have noticed that there is no time factor in the statutory calculation-- it's either unreasonably delayed or it's not.

settlement would be for less then full amount.

5814. (a) When payment of compensation has been unreasonably delayed or refused, either prior to or subsequent to the issuance of
an award, the amount of the payment unreasonably delayed or refused shall be increased up to 25 percent or up to ten thousand dollars
($10,000), whichever is less. In any proceeding under this section,the appeals board shall use its discretion to accomplish a fair
balance and substantial justice between the parties.

http://www.leginfo.ca.gov/cgi-bin/displa...=5800-5816


in addition to automatic penalties and 5814 WCAB penalties there is a third class for frequent abusers:
5814.6. (a) Any employer or insurer that knowingly violates Section 5814 with a frequency that indicates a general business practice is
liable for administrative penalties of not to exceed four hundred thousand dollars ($400,000). Penalty payments shall be imposed by the
administrative director and deposited into the Return-to-Work Fund established pursuant to Section 139.48.


you might want to contact the AD office and notify them. should the settlement negotiations fail and the employer lose in court, they may have substantially greater liability then just your small infraction. it's leverage that's available.
Reminder :
........Each state has their own comp system; POST YOUR STATE to get accurate information. Use the search feature to find information from similar questions.
THANKS FOR POSTING.
 
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#3
No I did not pay any out-of-pocket expenses. I just went without the meds.

Regarding my attorney of record, he is gone. The guy I originally hired retired and the guy who took over was a fool and was more in league with the opposing counsel than me, so I got rid of him.

Looking at 5814 (a), my employer initially stiffed me for 10 days on $500 worth of meds, so according to 5814 the penalties would appear to be 25% of $500, or only $125. For the second incident, my employer simply never responded to a Request for Authorization (RFA) for medication refills, and that took almost 30 days before I finally got them to refill the prescription. Here again the meds were only $500, so according to 5814, the penalty would only be $125, for a total penalty of $250 max. If these are all the penalties, there should really not be any negotiation. My employer should simple pay the $250 and be done with it. It probably cost more in the lawyer's time to draft his letter to me than $250. Since they are not simply paying me the $250 and they are pushing me to negotiate, my gut tells me there has got to be something else going on.

Section 4610 talks about Utilization Reviews and 4610 (i) says "If the administrative director determines that the employer, insurer, or other entity subject to this section has failed to meet any of the timeframes in this section, or has failed to meet any other requirement of this section, the administrative director may assess, by order, administrative penalties for each failure. A proceeding for the issuance of an order assessing administrative penalties shall be subject to appropriate notice to, and an opportunity for a hearing with regard to, the person affected. The administrative penalties shall not be deemed to be an exclusive remedy for the administrative director. These penalties shall be deposited in the Workers’ Compensation Administration Revolving Fund." The only problem is that "administrative penalties" is not defined.

In 4610.5(i), it talks about similar delays with an IMR, but in 4610.5(i) it clearly states the penalties are $5000 per day. If this also happens to be the "administrative penalty" for delays on UR's, then my employer would be looking at (10 days x $5000) + (30 days x $5000), or penalties of $200,000. Being on the hook for this amount would make more sense considering my employer's attorney's sudden change in attitude.

My employer's attorney is not acting normal. Normally they have a "screw you" attitude, but all of a sudden they are really coming on strong, actually treating me somewhat like a human being, and wanting me to give them a number to settle these issues. I can not believe their change of attitude is caused by a measly $250 penalty. If $250 is all we are talking about here, then I would rather go through the MSC process and then to a hearing because I would really have nothing to lose.
 
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#4
you are confusing the role and responsibilities of the Administrative Director and those administrative penalties with that of the WCAB.
The AD has responsibility for monitoring and enforcing compliance of the UR regulations.
more here
http://www.dir.ca.gov/dwc/UtilizationRev...esults.htm
And 4610 AD penalty information here
http://www.dir.ca.gov/dwc/UtilizationRev..._FAQ.htm#8
And here
http://www.dir.ca.gov/t8/9792_12.html
the findings and penalties of the ADs investigations are contained in the yearly reports.
these  investigations are not done by the courts in response to a workers petition for penalty nor are the findings & penalties listed  assessed by the WCAB.
your MSC and/or hearing will not be about the details or specific failings of the employers UR process.

maybe your employer has prior 5814 findings and wishes to avoid a finding of general business practice penalty or hope to avoid being investigated as the result of a targeted complaint from you or your filing.
Information about filing a ur complaint is here
http://www.dir.ca.gov/dwc/DWC_FilingAComplaint.htm
Reminder :
........Each state has their own comp system; POST YOUR STATE to get accurate information. Use the search feature to find information from similar questions.
THANKS FOR POSTING.
 
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