Your Communications with Your Treating Doctor: What Your Insurance Company is Telling Your Treating Physician How to Act : What You Need to Know

This article will discuss the communication between you, the Injured Worker, and your treating doctor.

One of the Largest Insurers in the State of California, the State Compensation Insurance Fund, issued a publication intended for their physicians who treat injured workers.   This publication includes a discussion concerning communication with injured workers. It is called “A TREATING PHYSICIAN’S GUIDE to Patient Care in the Workers’ Compensation System.”

The publication states that “[o]ne of the unique features of occupational medicine is the need for the treating physician to function as part of a team. The players on this team include the injured employee, the employer, the physician, and the claims administrator. Depending on the specifics of the case, other parties may be involved, including an occupational health nurse, a physical therapist, a vocational rehabilitation counselor, or the patient’s family physician

Conflicting Interests

Of interest, for Injured Workers, is to note that during the course of industrial medicine treatment, there are many more people that have a need or an interest in the communications concerning an injured worker’s treatment.  In a non-industrial format, the only people that may be involved in the matter could be simply the patient, the doctor, and the insurance company.”

Doctor-Patient Relationship

The publication goes further to indicate that in “[c]ommunicating with the Injured Employee[,] experienced clinicians are aware of the importance of trust in the doctor-patient relationship. For the occupational injury patient, the establishment of this trust may be particularly challenging and can require special attention. This need is especially true if the employer has referred the patient. In this situation, the patient may view the treating physician as the stereotypical “company doctor” whose allegiance is primarily to the employer. This view should never be the case, either ethically or as a matter of law. It is important to remember that professional ethical codes and civil court rulings require that the physician’s primary allegiance be to the patient. Ethical and legal obligations notwithstanding, the injured employee often may assume that the employer-designated physician is unable to make objective, unbiased decisions relating to such issues as a return to work, and that cost containment considerations are compromising the quality of medical care. “ [emphasis added]

The State Compensation Insurance Fund does an excellent job explaining the dilemma which physicians face in treating industrial patients.   The unspoken rule, unfortunately, is the “Golden Rule.”   In sum, whoever has the “gold” makes the rules.   In order for a physician to continue to obtain business from the insurance company and the employer, they must make efforts to not “rock the boat” with respect to treatment.  They know if they provide too much care, place an injured worker on temporary disability for too long, or write a permanent disability report with a lot of value, that their future employment by the insurance company and/or employer will be in doubt.  Further, in industrial medicine, the Injured Worker is not obligated to pay for the treatment.

Effective Communication

The publication goes on further to state that “[f]or the physician, effective communication and an appropriate “bedside manner” require an awareness of this potential mistrust. Open and frank discussions concerning the patient’s attitude and feelings about work are essential. It is often appropriate to discuss return-to-work goals before establishing the diagnosis and treatment plan.” [emphasis added]

One can find it quite unsettling that physicians are warned about mistrust between the injured workers/patient and their treating doctors.   What about the Insurance Company or the Employer?  Are there issues of mistrust that the doctor should consider with respect to their communications with all parties?  Should the doctor harness a little mistrust as to the intentions of the Insurance Company and the Employer?  Aren’t there times in which an Employer is not being honest about “return to work” issues or “industrial causation issues?”  In sum, the physician should consider mistrusting all parties.

Return to Work as an Issue

The publication goes on and states that “[i]t should be noted that making the decision regarding return to work status can be fraught with pitfalls, especially for the “soft tissue” injuries that are so common in the industrial setting. These conditions often involve pain syndromes with minimal or no objective findings. It is important to listen carefully to the patient and correlate the subjective complaints with clinical findings and diagnostic studies.”

This statement is very interesting.  There is some import concerning “soft tissue” injuries.  This statement seems to clue in physicians with respect to cases involving minimal findings.   To some degree, this is ironic.  Many “soft tissue” or “minimal or no objective findings” cases can be explained by the lack of medical attention.  First, many times, physicians are not seeing the patients. The facilities have non-physicians handle medical appointments/evaluations.  On these occasions, the Injured Worker is seen by a Physician’s Assistant (“PA.”)  The lack of the physician constantly monitoring treatment creates a lack of understanding of the Injured Worker’s condition. This can create an incorrect perception of the medical conditions.   Further, due to the Utilization Review process, diagnostic studies requested to provide objective findings are denied.  This denial prevents the Injured Worker from being able to prove that there are in fact objective finding.   In sum, the physician’s analysis and communications are compromised when addressing “soft tissue” or “minimal or no objective finding” cases by the Insurance Company and how medical treatment is delivered.  I will concede, however, that, at times, there are some Injured Workers who greatly exaggerate their pain.   Small injuries registering a 10 out of 10 every time they are seeing the doctor is a perfect example of this exaggeration.

The publication then states that “[d]ecisions regarding functional status and work restrictions, however, must be the physicians. The physician must make the decision on sound medical judgment and should not be inappropriately swayed by the employer, the claims administrator, the attorney, or the patient’s wishes.”

Again, this publication needs to state and advocate the lack of bias in the system.   Again, the “Golden Rule” is always in play in the back of any physician’s mind.   This is not meant as an insult to physicians.  It is simply the reality of industrial medicine. The simple concern is that the Injured Worker’s treatment, disability status, and entitlement to future medical care is not compromised by this leaning.

Common Goals for Industrial Medicine Treatment

The publication goes on to note that “[t]he challenge for the clinician managing work injuries is to maintain a focus on the patient’s problems and to involve him or her as an active participant in the rehabilitation process. It is important to emphasize that the physician, the patient, the employer, and the claims administrator all share a common goal: effective rehabilitation and prevention of further injury.”

I disagree with the publication’s conclusions of the common goals.   The commons goals should be the prompt diagnosis of the medical condition, the prompt provision of diagnostic studies to assess the correct diagnosis, the prompt provision of the treatment indicated by the diagnosis, the proper time off or correct work limitation during the recovery, and the return to full duties if possible.

Proper Communications

Finally, the Publication indicates that the Physician “[w]hen communicating with the injured employee:

  • Listen.
  • Sit down.
  • Explain.
  • Perform a hands-on exam.”

This is the one section that I completely agree with the State Fund.   It is so important that Physicians listen and document all of the injured worker’s complaints.   Failure to listen and a document can bring rise to the question of whether complaints were reported and timely reported.  Sitting down with the Injured Worker is also important.  A patient/doctor relationship is also a business relationship.   Both sides need to take treatment issues seriously.  Injured Workers need to comply with the physician’s instructions to assist with their recovery. This can include taking the proper medications, participating in physical therapy, and following any other instructions indicated.

A Physician’s explanation of what is going on is also very important. For some injured workers, their only contact person on their case may be their doctor.  At times, the Physician is the only person who may be available to assist the claim and provide the injured worker with important information.  Finally, it is always important for the Physician to actually perform and hands-on evaluation.  Hands-on evaluations provide valuable information to assist the physician with respect to the accurate diagnosis of the injured worker.   Also, it can provide valuable information concerning the Injured Worker’s developing medical condition.

As an Injured Worker, Where Could I Get Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 26 years. Contact us today for more information.

 

 

 

 

 

I have a Psychiatric Workers’ Compensation Claim and have been provided a GAF (Global Assessment of Function) Score, What Does It Mean?: What You Need to Know

California Workers’ Compensation Law has special rules to assign Permanent Disability to Injured Workers who have sustained Psychiatric Injuries.

In order to obtain a Psychiatric Permanent Disability Percentage, an Injured Worker must obtain a permanent disability rating. A rating is obtained via an evaluation of the injured worker by a mental health practitioner. Generally, in California Workers’ Compensation Law, Psychiatrists or Psychologists are the medical providers who evaluate Injured Workers for Psychiatric Injuries. Treating Psychiatrists and Psychologists are also allowed to make this evaluation.

With respect to a Psychiatric Permanent Disability, the evaluators will make the assessment as to whether (a) there is a permanent disability; and (b) the amount of it.

The State of California has a publication on how to rate injuries. It is called the SCHEDULE FOR RATING PERMANENT DISABILITIES (2005.) It notes that “[r]ating Psychiatric Impairment .. shall be evaluated by the physician using the Global Assessment of Function (GAF) scale…”

The Schedule notes that “[t]he resultant GAF Score shall then be converted to a whole person impairment rating using the GAF conversion table…” A whole person impairment rating is then placed into a formula to generate a permanent disability percentage.

What is a GAF Score?

A GAF Score refers to a numeric scale that is used by mental health practitioners. It is called the Global Assessment of Functioning. The evaluator rates subjectively the social, occupational, and psychological functioning of the individual. The scores range from 100 to 1. A score of 100 would be that of someone who is normal or high functioning. A score of 1 would be for someone who is not healthy and is severely impaired. In making an assessment, the practitioner is asked to not include impairment of functioning due to physical or environmental limitations.

Further, there are two scores that are made. One is made for symptom severity. The other one is for functioning severity.

In sum, for an Injured Worker, the lower the GAF Score, the higher the permanent disability. The higher the GAF Score, the lower the permanent disability. GAF Scores of 70 or higher results in 0 percent whole person impairment. This in turn results in a percent disability percentage.

What are the Items that are looked at to evaluate Functioning Severity?

 

The following is a list of the items that can be used to evaluated functioning. I have taken the liberty to organize them in a way to offer a better understanding. This list is not intended to be a complete and comprehensive list as to what is evaluated.

  • Participation/Interest in Activities: This includes not leaving home and staying in bed all day, no job, and no friends. It may include hygiene issues and communication issues
  • Being Socially Effective: This includes the quality and amount of friendships
  • Relationship with Family Members: This includes neglecting family, arguments with family members, disputes with family members, and domestic violence
  • Performance in School: This includes truancy issues, school work issues, conflicts with peers, violence at school, failing at school, and not attending school
  • Performance at Work: This includes conflicts with co-workers, inability to keep a job, and lack of the job
  • Relationships with Friends: This includes having few friends to having no friends

What are the items that are looked at to evaluate Symptom Severity?

  • Anxiety: This includes Anxiety when taking examinations or in reaction to psycho-social stressors, and Anxiety in general
  • Depression: This includes depressed mood, and suicidal thought, ideation, and attempt
  • Insomnia: This includes an inability to sleep
  • Panic Attacks: This includes occasional panic attacks to more frequent attacks
  • Abnormal Behavior: This includes theft, frequent shoplifting. Further, it can include flat effect and in general acting inappropriately. Further, this includes suicide attempts
  • Abnormal Beliefs: This includes delusions and hallucinations
  • Suicidal Beliefs: This includes suicidal ideation and suicide attempts
  • Speech: This includes circumstantial speech, speech is at time illogical, obscure or irrelevant. Further, it can include incoherent speech and being mute
  • Obsessive Activity: This includes severe obsessive rituals
  • Thought Process: This includes trouble concentrating

How is the Evaluator Instructed to Assign a Score?

Per the SCHEDULE, the evaluator is to follow four steps:

“STEP 1: Starting at the top level of the GAF scale, evaluate each range by asking “is either the individual’s symptom severity OR level of functioning worse than what is indicated in the range description?”

STEP 2: Keep moving down the scale until the range that best matches the individual’s symptom severity OR the level of functioning is reached, whichever is worse.

STEP 3: Look at the next lower range as a double-check against having stopped prematurely. This range should be too severe on both symptom severity and level of functioning. If it is, the appropriate range has been reached (continue with step 4). If not, go back to step 2 and continue moving down the scale.

STEP 4: To determine the specific GAF rating within the selected 10 point range, consider whether the individual is functioning at the higher or lower end of the 10 point range. For example, consider an individual who hears voices that do not influence his behavior (e.g., someone with long-standing Schizophrenia who accepts his hallucinations as part of his illness). If the voices occur relatively infrequently (once a week or less) a rating of 39 or 40 might be most appropriate. In contrast, if the individual hears voices almost continuously, a rating of 31 or 32 would be more appropriate. (b) Global Assessment of Functioning (GAF) Scale Considers psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. Do not include impairment in functioning due to physical (or environmental) limitations.”

What does the GAF Score Scale look like?

The following is the GAF Score outline scale. This is the actual scale which the evaluators will reference when assigning the Score.

  • 91 – 100 Superior functioning in a wide range of activities, life’s problems never seem to get out of hand, is sought out by others because of his or her many positive qualities. No symptoms.”
  • 81 – 90 Absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members).
  • 71 – 80 If symptoms are present, they are transient and expected reactions to psycho-social stress (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).
  • 61 – 70 Some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.
  • 51 – 60 Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g.. few friends, conflicts with peers or co-workers). 41 – 50 Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).
  • 31 – 40 Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment thinking, or mood (e.g.. depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home and is failing at school).
  • 21 – 30 Behavior is considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays in bed all day; no job, home or friends).
  • 11 – 20 Some danger of hurting self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) OR occasionally fails to maintain minimal personal hygiene (e.g., smears feces) OR gross impairment in communication (e.g., largely incoherent or mute).
  • 1 – 10 Persistent danger of severely hurting self or others (e.g., recurrent violence) OR persistent inability to maintain minimal personal hygiene OR serious suicidal act with clear expectation of death.
  • 0 Inadequate information.”

How is the Score translated into a Whole Person Disability percentage?

First, prior to viewing this, it should be understood that the rating manual provides for a DFEC adjustment to the score. In other words, the number provided below is a raw score which will then be adjusted higher. Note: Scores of 70 or above amount of no Whole Person Impairment.

The following is the conversion chart in the Rating Manual.

GAF

     WPI

1


90


2


89


3


89


4


88


5


87


6


87


7


86


8


85


9


84


10


84


11


83


12


82


13


82


14


81


15


80


16


80


17


79


18


78


19


78


20


77


21


76


22


76


23


75


24


74


25


73


26


73


27


72


28


71


29


71


30


70


31


69


32


67


33


65


34


63


35


61


36


53


37


57


38


55


39


53


40


51


41


48


42

46


43

44


44

42


45

40


46

38


47

36


48

34


49

32


50

30


51

29


52

27


53

26


54

24


55

23


56

21


57

20


58

18


59

17


60

15


61

14


62

12


63

11


64

9


65

8


66

6


67

5


68

3


69

2


70

0


71

0


72

0


73


0


74


0


75


0


76


0


77


0


78


0


79


0


80

0


81

0


82

0


83


0


84


0


85


0


86


0


87


0


88


0


89


0


90


0


91


0


92


0


93


0


94


0


95


0


96


0


97


0


98


0


99


0


100


0


Where Can I Get Legal Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 26 years. Contact us today for more information.

Structured Settlements & Workers’ Compensation: What You Need to Know

In Workers’ Compensation, there are many ways upon which an Injured Worker can settle their case. In California Workers’ Compensation Law, there is the provision to allow Injured Workers to settle their cases via a Compromise and Release. In lay terms, it is commonly referred to as a “buy-out” or a “cash out.”

Many Injured Workers, during settlement negotiations, are asked whether they wish to have their settlements paid out in the form of a structured settlement. Sometimes, an Injured Worker, without knowing, may attend a settlement negotiation in which a Structured Settlement Broker is present.

A Structured Settlement implies that rather than one lump sum payment, the Injured Worker will receive payments over time. Structured Settlements serve many purposes within workers’ compensation. Sometimes, Structured Settlements are used to fund Medicare Set-Aside Trusts. The Federal Government allows for Medicare Set-Aside Trust to be funded over time via structured payments.

Structured Settlements can also be used to create a payment stream for the Injured Worker while they are alive. Also, it can provide a payment stream for the Injured Worker’s beneficiaries in event of their death.

This article is meant to introduce Injured Workers to commonly used phrases and concepts that are used when negotiating a structured settlement.

Nature of Structured Settlements

What is a Structured Settlement?

Essentially, a Structured Settlement is an annuity contract from a Life Insurance Company. It is a contract which guarantees a payment stream. The nature and terms of the payment stream can differ and vary. The Workers’ Compensation Insurance Company involved in the case will purchase the contract on behalf of the Injured Worker.

Are Structured Settlement payments made by the Insurance Company?

Generally not. Structured Settlements generally involve a Third-Party Insurance Company (Life Insurance Company) which bear the responsibility of making the payments. Sometimes, a Workers’ Compensation Insurance Company may try to request that a company associated with theirs operate as the Annuity Company from which the contract is purchased.

Does the Whole Settlement Need to be Structured?

No. Sometimes structured settlements include an initial lump sum payment from the Workers’ Compensation Insurance Company and a structure of payments to follow. Also, some settlements simply payout all of the money due except for the Medicare Set-Aside Trust Fund money. In those circumstances, a structured settlement is purchased only to fund the Medicare Set-Aside Trust.

Structured Settlement Terms

This section of the article is intended to explain the various terms used within structured settlements. There is a large variety of ways upon which the benefits can be paid out. This section will explain some of them.

What is “Life for a Period Certain?”

“Life for a Period Certain” means that payments that are guaranteed for life and for a guaranteed period (even if the individual dies.) For example, the settlement can be guaranteed for payment for 10 years and/or life. Therefore, if the Injured Worker dies in year five of the payments, the additional payments will continue for another 5 years. The Injured Worker will have designated a beneficiary in the agreement.

If the person lives beyond the guaranteed period, the payments will continue until their death.

What are Payments for a “Period Certain?”

Payments for a “Period Certain” are payments for a designated period of time. Once that time has passed, the payments will stop. The payments are guaranteed. Again, if the Injured Worker dies, the payments remaining will continue and go to a beneficiary provided for within the agreement.

What is “Life Only”?

“Life Only” payments are only for the lifetime of the claimant. There is no guaranteed period. They will cease upon the death of the claimant.

What is a Claimant/Annuitant?

This is the original payee whose name appears on the contract.

What is an “Expected Benefit?”

An “Expected Benefit” is the total amount of payment that the claimant will receive if they live to their assumed life expectancy based upon mortality tables. The calculation is based upon a normal life expectancy of an average person of the same age.

What is a “Guaranteed Benefit?”

A “Guaranteed Benefit” is the total payments guaranteed to be paid out to the Injured Worker, if living, or to a specific beneficiary if the claimant dies before all of the guaranteed payments are made.

What is “Guaranteed Lump Sum?”

A “Guaranteed Lump Sum” is a lump sum benefit payable on a specific date regardless of whether the claimant is still living at the time the payments are due.

What is a “Guaranteed Period?”

A “Guaranteed Period” is a period when payments are made regardless of whether the claimant is still living at the time the payments are due.

What is a “Life Contingent Lump Sum?”

A “Life Contingent Lump Sum” is a lump sum payment on a specific date. It is only paid if the claimant is living on the date payable.

What is a “Life Company Quote?”

A “Life Company Quote” is a document generated exclusively through the individual life company annuity quoting an application.

What is a “Lock-In?”

Lock-In is done once the annuity payment schedule is agreed upon by the parties. A Lock-In essentially locks in the cost of the annuity. When interest rates are fluctuating, the cost of the annuity can vary. In sum, the purchase price of the annuity is locked in.

What is a “Purchase Date?”

A “Purchase Date” is a date upon which the payment is to be made.

What is “Quote Expiration Date?”

A Quote Expiration Date is a date for which the quote is valid until. In other words, because interest rates change, the Quote of the purchase price can change over time. Therefore, if the contract is not purchased within a set time, a new Quote would have to be obtained. The new Quote can be better, worse or the same as the old quote.

What is a “Mode/Term?”

A Mode or Term is the frequency upon which the annuity payments will be made. For example, they can be weekly, monthly, or annually.

What is the “Rated Age?”

A “Rated Age” is an actuarial adjustment to the Claimant’s age resulting from certain physical or medical impairments that may affect the claimant’s life expectancy.

What is “Temporary Life?”

“Temporary Life” is a payment that is life contingent with no guarantee. It will end with the earlier of the claimant’s death or the last scheduled payment.

Can a Structured Settlement be cashed-out?

Yes. While an Injured Worker cannot cash out their structured settlement through the annuity companies, there are various outside companies that purchase annuities. They do so, however, at a great discount. In other terms, you could lose a lot of money in that transaction. Personally, I have never recommended doing so because of the cost.

As an Injured Worker, Where Could I Get Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 26 years. Contact us today for more information.

What Insurance Companies are Telling Doctors to Think About You: Injured Workers, Your Treating Doctor, and Your Insurance Company: What You Need to Know

As an Injured Worker, you may come across terms such as “motivation factors,” “secondary gain,” and “victimization, ” noted somewhere within the reporting on your case. This can appear in a medical report or an analysis of your case that has prepared by an Insurance Company, Defense Attorney or an Investigator. Some of these reports, which use these terms, you will never see. The documents are generated as attorney work-product and are not discoverable. In addition, as an Injured Worker, you also may not see any medical reports that deal with your mental health. Psychiatric or Psychological reports that discuss these factors are not provided to unrepresented injured workers.

How Do these Observations Come Into Play?

 

work injury claim form for injured worker

 

Insurance Companies educate doctors on issues such as motivation, secondary gain, and victimization. They do so because they want these doctors to report on those factors. It allows the insurance company an opportunity to size up the injured worker. Additionally, these reports can be reviewed by later evaluating physicians, which can clue in later avaluators as to these issues. If the matter goes to Trial, the Workers’ Compensation Judge will also be informed of these factors as well.

The State Compensation Insurance Fund, one of the major insurance companies in California produced a guide for physicians to assist them in industrial medical treatment. The book is called “A TREATING PHYSICIAN’S GUIDE to Patient Care in the Workers’ Compensation System.” This guide discusses in detail “motivation” issues.

What Is a Motivating Factor and Why is it Important?

Motivation, in the view of insurance companies, works both ways for an Injured Worker. Some Injured Workers, for a variety of reasons, i.e. family, dedication to the job or profession, have a strong desire to recover from their injury and resume their work activities. Other Workers, for a variety of reasons, i.e. family, substance abuse, unhappiness with the job, other medical conditions delaying recovery, have a decreased desire to recover from their injury and resume work activities.

Per the SCIF Guide, “[m]ost risk factors for delayed recovery are associated with the level of motivation to return to work. Experienced vocational rehabilitation professionals usually can recall at least one example of phenomenal recovery of function following severe trauma. These individuals have the will to recover and refuse to accept disability, despite the extensive injury. At the opposite end of the spectrum are those individuals who persistently complain of pain and other subjective symptoms, with little or no objective findings (that is, they are functionally disabled without evidence of physiologic impairment). The importance of motivation cannot be overstated. The physician must consciously assess patient motivation and attempt specific psychotherapeutic interventions when appropriate. The earlier the physician can identify patients at increased risk for delayed recovery and chronic disability, the greater the potential to arrest the process and return the patient to a productive lifestyle.”

In sum, your Treating Physician, besides treating you, is sizing you up as to why you are there.

Anything that can occur in the examining room is being judged. It can be as simple as the clothes being worn. For women, whether they have had their nails done. Other examples would be the smell of alcohol on their breath, the smell of marijuana or cigarette smoke on their body. Some doctors have even made an observation of an Injured Worker in the offices waiting room or even in the parking lot of the facility.

What is Secondary Gain?

The SCIF Guide explains and defines secondary gain as follows “[t]he assumption has been that disability behavior is learned because the same impairment produces very different behavior in different individuals. There are a number of psychological influences that reinforce the disabled role and counteract the desire to recover.

The term “secondary gain” has been used to describe the factors that contribute to the maintenance of symptoms and inhibition of work performance. In essence, they create an advantage to persistent disability behavior. Secondary gain is distinct from malingering in that it involves unconscious phenomena that go[es] beyond monetary support. The three identified types of secondary gain are:

  • Sympathy, attention, and support.
  • Being excused from responsibility, obligation or challenge.
  • Influence over important people by virtue of their acceptance that the individual is sick

There have been scientific studies that have shown that victims of child sexual abuse have issues when treating for medical conditions. In a paper that was presented in 1998, entitled

Psychological Profiles of Rehabilitation Patients Reporting Childhood Sexual Abuse by Disorbio and Bruns noted that “Patients reporting abuse were significantly more likely to be female, psychologically distressed, suicidal, prone to using drugs and tobacco, report family problems and complain of physical and pain symptoms more than nonabused patients.” [emphasis added]

The California Workers’ Compensation System provides that workers are to be taken as they are and that they are entitled to receive medical attention to cure and relieve from the effects of the injury. Further, treating the non-industrial to treat the industrial is an accepted aspect of the law. Therefore, the workers’ compensation system must accept and treat or accept these issues as industrial even though they may be considered an issue of “secondary gain.” These individuals may be considered “eggshell” patients. Regardless of that fact, they are still entitled to unapportioned medical treatment to cure or relieve from the effects of the injury in accordance with Labor Code Section 4600.

 

What is Victimization?

Per the SCIF Guide, “the feeling of “victimization” (that, of having suffered an injustice, of society owing something) is often a factor in secondary gain for workers’ compensation patients. The current workers’ compensation system may foster illness behavior in a number of ways:

Providing tax-free income, although usually less than full wages, may not constitute a financial hardship on employees earning near the minimum wage.
Current laws provide compensation for being disabled, which may make a full effort toward rehabilitation difficult.

Disputed cases typically last more than a year. During this time the individual avoids work because he or she feels it would adversely affect the claim. In addition, litigation can prolong symptoms by creating unrealistic expectations of a large financial reward. Patients may recover quickly when their claim is settled.

Often multiple physicians evaluate individuals and subject them to extensive diagnostic testing. This extensive treatment reinforces the perception that the patient may have a serious medical condition.”

To SCIF’s credit, it identifies the fact that there are outside forces which create the feelings of victimization. Victimization, to some degree, should be taken as a serious issue. Some Injured Workers are tossed around and frankly abused by the system and the players within the system. Frequently, I concur with the Injured Worker feeling that the system has not been entirely fair to them. Again, we must all understand that this is a “compensation” system and not a “get rich” or “get a financial advantage system.” It is designed to compensate for “loss.”

Should You Feel Victimized?

Victimization is a controversial label. Injured Workers are not legal scholars who understand the process that they are going through. There are many players involved in workers’ compensation who have financial interests that may not be in line with the Injured Worker. There is the employer who wants to limit their risk and liability, i.e. injury costs or increased premiums. There is the insurance company which wants to limit liability. There are medical providers who want to make money for themselves. There are attorneys, both Applicant and Defense, who want to make money as a result of the claim. There are Judges who want to move the case to resolution. The Injured Worker is caught in the middle of these diverging interests. Many of these interests do not concern the Injured Worker getting benefits, medical treatment, and the opportunity to return to either their job or the labor market.

What is Recommended by Insurance Companies to Address these Issues?

Per the SCIF Guide, “[t]he treating physician can play a key role in the prevention of delayed recovery. When the disabled employee has persistent symptoms, the temptation is for the physician to respond by providing additional rest and time off from work. This common therapeutic approach actually creates a vicious cycle that prolongs recovery and perpetuates the sick role. Transitional work is the most effective approach to the prevention of chronic disability. It should be a consideration on the first visit and an integral part of the treatment plan.”

These recommendations are pathetic. If an Injured Worker has persistent symptoms, the physician should have a discussion with the patient and try to get to the root of the problem. A persistent symptom may mean that there is more serious problem present. Further, some physicians, due to their limited time with the worker or other reasons, do not want to hear more and wish to ignore the complaints. It is sad but true. Returning an Injured Worker back on the job does not solve or cure the underlying medical condition.

As an Injured Worker, Where Can I Get Legal Advice?

 

Attorney with Injured worker

 

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 26 years. Contact us today for more information.

Supplemental Job Displacement Benefit Vouchers

Supplemental Job Displacement Benefit Vouchers (SJDB), the Settlement of Your Workers’ Compensation Case, and Case of Beltran vs. Structural Steel: What You Need to Know

In a recent “Noteworthy” Workers’ Compensation Case, Beltran vs. Structure Steel Fabricators, 2018 Cal. Wrk.Comp P.D. Lexis, the WCAB changed the nature of Supplemental Job Displacement Benefit Vouchers. This article is meant to explain the change to Injured Workers and what they are to expect when their cases are settled. Further, it will explain what may further transpire in the litigation process.

What Are Supplemental Job Displacement Benefit Vouchers?

In 2013, the Supplemental Job Displacement Voucher changed.

Per the DIR, “ Employees injured on or after Jan. 1, 2013, with injuries that result in permanent partial disability, and whose employer does not offer other regular, modified or alternative work, may also qualify for the SJDB voucher. The offer must be made within 60 days after receipt by the claims administrator of the Physician’s Return-to-Work & Voucher Report (Form DWC-AD 10133.36) The voucher amount is $6000 for all levels of permanent disability and can be used for training at a California public school or any other provider listed on the state’s eligible training provider list. It can also be used to pay licensing or certification and testing fees, to purchase tools required by a training course, to purchase computer equipment of up to $1,000 and to reimburse up to $500 in miscellaneous expenses. Up to 10 percent, or $600, may be used to pay for the services of a licensed placement agency or vocational counselor. No more than 10 percent of the value of the voucher can be used for vocational & return to work counseling.”

The Supplemental Job Displacement Benefit Vouchers are valuable in that an Employee is entitled some additional funds from the State of California. Per the DIR, Employees injured on or after January 1, 2013, who have received a supplemental job displacement benefit voucher (SJDB), may also qualify for an additional one-time $5,000 payment.   The Return-to-Work Supplement Program (RTWSP) will mail approved applicants a $5,000 check that can be used to supplement the earnings lost from being injured.   Date of injury must be on or after January 1, 2013. The DIR indicates that the Employee must have received an SJDB voucher for that injury, and RTWSP must receive the application within one year from the date they were mailed the SJDB voucher.

It was the intention of the legislators that Supplemental Job Displacement Benefit Vouchers were not allowed to be settled. In fact, there was a period of time in which Judges were placed on alert to make sure that the voucher was not settled as part of agreements. The Beltran case, however, will change Judges approaches towards their willingness to approve settlements which include the resolution of the voucher.

What has changed with respect to Supplemental Job Displacement Benefit Vouchers?

Per Beltran, the Supplemental Job Displacement Benefit Voucher can now be resolved in certain circumstances. In Beltran, the WCAB allowed for the settlement of the voucher. The WCAB found that the Judge was to “consider the evidence and determine whether the case involves “serious and good faith issues” that could lead to the entire defeat of the worker’s entitlement to benefits.” See Lexis Nexis.

How will this change my settlement documents?

Your settlement documents, which include the resolution of the voucher, will now include within it language expressing the fact that there are serious and good faith issues that could lead to the entire defeat of your entitlement to workers’ compensation benefits.

In addition to stating this, it is likely a Defendant will provide further explanation. Sometimes, such language can be upsetting to the injured worker. While the statement is merely the Defendant’s position, it is listed in the settlement documents which are public records. Further, the injured worker may disagree with some of the representations.

There are a variety of reasons that can be used to express” serious and good faith issues” concerning entitlement to benefits. Essentially, there are three bases to deny a claim: legal, factual or medical.

Legal Defenses can be things such as a lack of coverage, the statute of limitation, or that the facts do not give rise to a finding of arising out of and in the course and scope of employment. Further, there are legal defenses such as the Post-Termination Defense and the Good Faith Personnel Action defense.

Factual Defenses mean that there are witnesses or documents which dispute the accounting of your injury. For example, your employer denied that he said harmful things to you.

Medical Defenses mean that there is a medical opinion that exists that finds that the injury was not industrial.

What does this mean to me?

There will be more attempts to have the supplemental job displacement benefit vouchers resolved in settlements. There may be some Defense Attorneys or Carriers trying to demand the settlement of the voucher be included with Compromise and Release settlements. If so, they may be more aggressive to get information or documentation to defeat the voucher. Further, Insurance Companies may be more aggressive to pursue defenses that would lead to the defeat of your workers’ compensation claim for benefits in entirety.

Also, there may be some delay in the approval of your case. If this language is within your settlement and the Supplemental Job Displacement Benefit Voucher is resolved, the Judge will scrutinize the settlement and hold it up if there is not enough explanation as to what evidence would create a total bar to settlement. If a settlement is submitted for approval, a Judge may set the matter for adequacy to address the issue.

Where Can I Get Legal Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 26 years. Contact us today for more information.