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Worker`s Compensation/New Findings / MSA Process


QUESTION: Date of injury 1999. Temporary disability for the period of 2000 through 2004, permanent disability of 25% for which indemnity was paid out with future medical. I currently see my doctor twice a year with labs, also on a medication regimen, for chronic wrist and hand pain, De Quervainís tenosynovitis, Myofascial pain syndrome.  I was seeing the same doctor until this last year and switched over to a pain specialist closer to me. Last year I was experiencing a different kind of pain that was spreading at this time my primary doctor through work comp requested an evaluation by Rheumtologist.  I saw the Rheumtologist and the following impression is. 1. Fibromyalgia associated with chronic fatigue 2. Sleep disturbance 3. Mild anxiety and depression   4. Myofascial pain syndrome: Neck and upper back (By history).  I saw my new work comp doctor a couple months ago and told him it is very difficult for me to get up in the morning and continue to work and asked him with the new diagnosis from the Rheumtologist can I file for state disability, he stated that the insurance company has not accepted the new diagnosis, which I did not know. With the new diagnosis should I file a new work comp case with my present employer? I left August 2012 went and saw my own doctor and she stated I should go back to my work comp doctor.  Very confusing! My employer knew of my pain and that these are new symptoms, but never mention work comp insurance and that I should see their doctor first. I had been suffering for months and just could not handle the stress and the work load that I was doing, so I requested time off with no guarantee I would return. Iím at a loss, I have a family to support, but it doesn't seem like any one knows what I should do? Present employer I had been with a little over two years.
Also, with my date of injury 1999 I just received a letter from my adjuster requesting a response in determining if I am interested in settling my Workers Compensation claim. They want to know if Iím currently receiving SSDI or Medicare or plan to in the next 30 months. This information will be required to determine if a Medicare Set Aside will be required to settle the claim. If you are a Medicare beneficiary and are interested in settling the claim, I will provide the appropriate release forms so that we can initiate the MSA process.  I do not receive SSDI nor do I have Medicare at the present.  Please advise me on the MSA process and can I just settle for a lump sum and be done with them? My original Attorney on my cases has since passed away.

ANSWER: FOR THE 1999 CLAIM:   If a judge approved STIPULATIONS WITH REQUEST FOR AWARD already, it is too late to add any body parts.

You write "indemnity was paid out with future medical" which sounds like there was an agreement -- Stipulations With REquest For Award -- to 25% and an agreement there "IS" need for future medical treatment.   

But later you mention 'settling' so I can't tell the status of this claim.

If -- on the 1999 claim -- there is no judge's Award and no Finding and Award (at Trial) and no Award on Stipulations, then you Amend the 1999 Application to include the new body parts injured.

If there is any award or findings, it's too late.

Generally you have 5 years from the date of injury to amend the Application to list new injuries to new body parts.   For a 1999 injury, the deadline to give notice to the insurer that you sustained new injuries was 2004.

If you are going to apply for Medicare in the next 2.5 years, Medicare would take the entire settlement amount IF you and the insurer failed to prepare a Medicare Set-Aside properly.

SO:   if you plan to take a lump-sum dollar amount and pay for your ongoing treatment on your own, you must get a Medical SetAside.  If you think there is any chance of you being unable to earn a living and getting Social Security Disability, you cannot sign the agreement stating you won't apply in the next 2.5 years.

FOR THE 2011-2012 REPETITIVE TRAUMA CLAIM:   If you are still employed, you can file the new claim, possibly as a 'Continuous Trauma' from repetitive duties for the year leading up to August 2012.

Problem with Fibromyalgia is NOBODY KNOWS THE CAUSE therefore it's impossible to 'prove' the cause is your repetitive duties.   I strongly discourage Fibromayalgia claims because of this proof problem.   If is it an emotional problem then it is an Injury to Psyche claim -- nearly impossible to prove, but it has been done.

If it is a joint overuse claim, THAT gets caused by repetitive flexion, lifting, pushing and pulling on the job---simple to prove, you just performed your job.  

The Employee Claim Form could just list Neck, Spine, UPper Extremities as the body parts. Psychiatric claims are routinely denied (unless you're raped by the supervisor or a cop who takes a bullet).

If you had talked to an attorney or the free WCAB Information & Assistance Officer in July, you would have been advised to file the new Continuous Trauma claim before leaving in August.

If your status is that you are technically still employed by this employer, FILE THE NEW CLAIM IMMEDIATELY... get the Employee's Claim for Occupational INjury form off the website and fax it and save the fax transmission report...proof the claim form got to the employer PRIOR TO YOUR separation from the company.

If you are 'separated' from the employer already -- it's too late.


---------- FOLLOW-UP ----------


QUESTION: Thank you! I understand it's to late for my present condition. As far as my 1999 claim I have attached the letter that was recently sent to me along with the stipulation and award. My question now is how do they calculate the settlement in this situation. Just calculating my medication, they pay for monthly is $503.27, plus my following 4 to 6 months with my work compensation doctor and labs. If I was to take a lump sum, what am I looking at? I don't plan to apply for SSDI or Medicare in the next 2.5, but after 2.5 years can I apply?

How does THE ADJUSTER calculate the settlement??

SIMPLE:   THE VERY LEAST a judge would OK as adequate...   if you think $30,000 is sufficient and sign the documents, the judge might approve that.


In considering what the adjuster presents as the first offer, do some basic math:  

$500/month X 12mo/yr = $6,000
X 10 years until you can go on Medicare = $60,000 for you
+ $90,000 for Medicare for the 10 years after that.   

So any less than $150,000, just say no thanks.   You are NOT REQUIRED to cash out your future medical rights.   This is 100% voluntary and only good for you if the adjuster offers a very large sum.

And yes, you can apply for Medicare and Social Security Disability Insurance AFTER the 2.5 years from receiving your settlement money expires, you keep ALL the settlement cash in your pocket, then Medicare covers 'everything' after that (if there is any Medicare left in 3 years).

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Nancy Wallace


California injured workers employed by state and private agencies (NOT federal employees) regarding On-The-Job injuries, disability payments, and terminations from being injured on the job (work-related wrongful terminations).


20+ years in California Workers Compensation law practice in California. Certified Specialist, Workers' Compensation, Board of Legal Specialization, State Bar of California

California State Bar Board of Legal Specialization

Editor, Western State University College of Law newspaper

J.D., Western State University College of Law B.S., cum laude, Cal Poly Pomona

Past/Present Clients
Senior adjuster for one county sent me her husband when they needed caring representation. The injured Employment Development Dept. hearing representative -- who see all applicant's attorneys in the region -- hired me when she got hurt on the job. A Fire Department Chief in Orange County came all the way to San Bernardino for my representation.

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