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Reasonable Accommodation and P&S
#1
Hello All, *CA.IW

New here, so please, if I am in the wrong forum, I apologize. First time on WC and it's been a nightmare. 2nd Attorney - no return calls/emails, timeframes expired and left in limbo - just as bad as 1st.

This is my nightmare; quite long and I thank you for taking the time to read. Any advice is greatly appreciated.

8/10/18. DOI Body Parta: Neck/Back/Rt Shoulder/R&L Knees/R&L Wrists
2/04/19 Placed on P&S by AME. WPI 45% Did not rate lower back or L-wrist.
3/23/19 Received Correspondence from WC - dept unable to accommodate and employee will remain off from 2/04/19 - 5/19/19.
4/01/19. Employer conducted Interactive Process (10-min at best).
Outcome: Could not accommodate restrictions by AME.
4/09/19 Received Recap of IP on 4/09/19, 445pm, from Supervisor stating Dept. able to accommodate restrictions w/exception of 10-min breaks every 50-min, employee will have to use personal time . *Same restrictions since 2/04. All of a sudden the Dept can comply, Correct me if I am wrong, I thought ALL RESTRICTIONS had to be met, no exceptions.

5/13/19 I sent email to Sup, WC, requesting status of returning to work - no reply
5/20/19 Repeat of above w/calls and left messages - no reply
5/31/19 Repeat of above - no reply
6/03/19 Finally a reply in am, received phone call from Supervisor, stating the Recap of 4/09/19 was the offer to return to work and no acceptance of offer, so placed on No Pay as of 4/09. Whaaat ??

Where on the recap is RTW offer indicated? Says once Dept can accommodate restrictions, therein lies the offer to return. I indicated there is no mention of any return to work offer, no date or time to report, no acceptance or rejection of such offer mentioned. Sup reiterates, as mentioned, once Dept can accommodate, that's the RTW offer, per Dept. Policy. So, since 4/09 was offer, I was to report to work at 445pm? I have requested written form of policy... waiting, waiting, waiting, waiting. Nothing.
6/03/19 2nd Memo stating to return to work 6/04/19 - I submitted PTP docs of 6/3 visit w/restrictions similar to AME, except 1-restriction: no "frequent" bending.
06/04/19 Reported to work. Locked out of Computer and per IT - status Employee on PAUSE - Wow!! Left mid-day, Pre-OP appts. surgery next week
6/05/19 Meeting held and Employer cannot accommodate PTP's 1- restriction of "frequent" bending. WC Sup states AME Restrictions supercede any/all PTP's. Since AME declared P&S, claim is now closed and these are new restrictions that cannot be combined w/closed?? WC claim. Now considered a disability and cannot get paid disability because it's related to WC claim. Frustrated, me? Nah! It gets better. LoL!!
Therefore, until "frequent" can be clarified, Dept is unable to accomm. and do not return to work 6.06.19 until restriction updated by PTP. - will continue to report as No Pay. This is the icing on the cake: Since RTW offer 4/9/19, time will be reported No Pay up until 6/03/19. LMAO!!
I have surgery scheduled for next week for work related injury. Since WC Sup says claim closed, I'm afraid this surgery will not be covered (although approved by IC).
I can make ends meet with TTD benefits but don't know if I should return to work?
I have not received any pay since 5/01/19, on verge of having car repo and eviction.

I believe Employer has violated a few LC and my rights as an IW.

As mentioned very long, sorry for the essay.
 
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#2
You need to contact an employment attorney who deals with this type of issue for legal advice.

My suggestion from what you wrote above as a non expert is to be aggressive with returning to work and try to work these issues out, if you can do the position with what the AME wrote as restrictions without reinjury. If your PTP believes you will reinjure yourself then I would discuss with your employer.

You should be receiving TTD if they cannot accommodate your restrictions. You can try file for State Disability through EDD in the mean time if they are refusing to allow you back to work and refusing to pay you TTD.

You should contact your work comp attorney to discuss these issues as well. He may be able to file a 132a (not sure)

When attempting to return to work I would suggest making more than one attempt and also keep a paper trail. This will be important if you need it later.

Have you called your HR department and tried to work this out? Often times these things can happen due to incompetence or miscommunication. Hopefully someone in your HR department will work with you to help resolve this.

Can I ask what type of surgery you are scheduled for?I don't see how your claim is closed. How did your surgery get approved if your claim is closed?
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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#3
(06-06-2019, 11:29 AM)California_Help Wrote: You need to contact an employment attorney who deals with this type of issue for legal advice.

My suggestion from what you wrote above as a non expert is to be aggressive with returning to work and try to work these issues out, if you can do the position with what the AME wrote as restrictions without reinjury. If your PTP believes you will reinjure yourself then I would discuss with your employer.

You should be receiving TTD if they cannot accommodate your restrictions. You can try file for State Disability through EDD in the mean time if they are refusing to allow you back to work and refusing to pay you TTD.

You should contact your work comp attorney to discuss these issues as well. He may be able to file a 132a (not sure)

When attempting to return to work I would suggest making more than one attempt and also keep a paper trail. This will be important if you need it later.

Have you called your HR department and tried to work this out? Often times these things can happen due to incompetence or miscommunication. Hopefully someone in your HR department will work with you to help resolve this.

Can I ask what type of surgery you are scheduled for?I don't see how your claim is closed. How did your surgery get approved if your claim is closed?




Thank you for your reply.

Knee Surgery due to torn miniscus.

To my understanding, the claim is still open.

But when I presented updated PTP restrictions as of 6/03/19, she indicated cannot accept restrictions from PTP because AME restrictions are the final say and the claim is now closed due to P&S as of 2/04/19.

She would not accept PTP restrictions (which have improved) and cannot
 
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#4
Thank you for your reply.

Knee surgery - torn miniscus. To my understanding the case is still open.

This is the information received: per WC Supervisor, the AME permanent restrictions are the only restrictions that WC will consider related to this claim. As the Division can accommodate your permanent restrictions, you are no longer eligible for Disability benefits for these restrictions. Further, Disability does not cover industrial injuries (work related injuries) unless instructed by Worker’s Compensation to provide payment. Since no additional restrictions received related to this claim will be accepted by Worker’s Compensation, you are not eligible for disability payments for the temporary restrictions provided by your Dr. Your claim is considered settled and you are receiving permanent disability payments. As a result, you would not be entitled to seek additional compensation for temporary restrictions related to the same injury, even though the restrictions are from your primary treating physician for your worker’s compensation claim.

I understand if I go out due to surgery, my benefits would revert back to TTD. I have confirmed this with the CA DWC Division. So, I am not sure why the Sup is stating claim is closed.

The fact that she mentions the AME restrictions override the PTP but is now using the PTP's restrictions as a way not to accommodate.

The Dept conducted 1-interactive process and this was on 4/01/19. I have paper trail of emails sent indicating interest in returning and need to discuss accommodations .. never received any replies. I believe the only reason I finally did receive one, was the fact I forwarded my unanswered emails to the General Manager.

Msgs/EM to 2nd Atty. - no reply, not surprised.
 
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#5
I am confused. Will your employer allow you to return to work under your AME's restrictions?

I don't know what you mean by WC supervisor. Do you mean your claims adjuster? Make sure to let the claims adjuster know if your employer will not accommodate you IF they refuse your AME's restrictions. If you want to return to work I would continue to contact them and work your way up the ladder if they are not accepting your AME's restrictions.

Being P&S does not mean your claim is closed. It sounds like that employee does not know what they are talking about.

There are a lot of studies on that surgery recently. Just FYI

https://ard.bmj.com/content/77/2/188

https://www.nejm.org/doi/full/10.1056/nejmoa1305189

I would definitely research your surgeon before any surgery....especially an orthopedic surgeon in CA work comp. There are good ones, however there are some who really like to operate. A lot.Check his reviews etc and check the hospitals reviews. Best of luck to you.
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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#6
If you feel comfortable providing the surgeons initials, I can tell you if he is on my shitty list. A non scientific list of shitty California WC ortho surgeons here is CA, based upon my opinion. Up to you. If not google him.

I hope you can work things out with your employer. It sounds like it may be miscommunication issues (unknown). Up to you how aggressive you want to be with returning to work. You can continue to contact them until you get some answers and work your way up the ladder. It is too bad your attorney is not helping you with this.
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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#7
Thank you.

Initials: EH

Thank you for the information provided - this continues to be a learning experience.

I was just advised by my Supervisor, all concerns have been addressed. Employer can accommodate restrictions per AME Report.

Claim Status: Open. Benefits: PPD, and will revert back to TTD, date of surgery. Whew!

THANK YOU!! Your time is TRULY APPRECIATED!! Enjoy your evening!!
 
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#8
Not familiar with those initials, which is a good thing.

I am VERY happy for you that things are working out with restrictions and your employer. The best case scenario is you will be on the road to recovery after your surgery and once able you can return to work.
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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#9
I am sorry. The name did not click at first. Is the second initial of this surgeon's first name d and second initial in last name a? If so I would highly recommend against any spine surgery with him if he recommends it at a later time. I know this is not the surgery you have scheduled. This is just my opinion and you do not have to take it.

I also want you to be aware that you can get a second opinion any time in the work comp system other than your AME. I highly recommend getting several opinions before any surgery no matter if it is work comp or regular insurance to anyone reading this.

If an injured workers primary treating doctor in work comp is an ortho surgeon, then chances are much higher they will be getting surgery. There is data on this. While many surgeries do help patients, there are some surgeons who do medically unnecessary surgeries or overly invasive surgeries.
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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#10
I would not recommend orthopedic surgeons who practiced out of the now closed Pacific Hospital Long Beach. If you google the hospital you can read about some of what happened there. Dr E. H. (if it is the one with second initials of first name d and second initial of second name is an a previously worked there, for years. Just FYI.
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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