You think you can handle your own work comp case?
This is a true story. It involves a retired firefighter who came to see me in 2012 regarding a workers’ compensation claim he was handling on his own. He had received a settlement offer from the City to resolve his case and he needed a legal opinion on whether the settlement was fair and adequate. What occurred after he met with me demonstrates why it is always smart to confer with a knowledgeable workers’ compensation attorney at the early stage of a claim. A reputable attorney may advise you that an attorney isn’t necessary on your claim and I, in fact, have so advised many such clients. The injury may be simple or one that doesn’t result in any significant permanent disability. The claim may also be at the end stage and an attorney isn’t necessary to conclude it.
On the other hand, how a claim ends up often depends on how it begins and critical decisions made at the beginning of a claim will dictate the ultimate result. Again, the case I am discussing is true. Had I represented the firefighter from the onset, I might have actually recovered more for him that I actually did. What he did recover was more than 10 times what he was offered by his employer.
Firefighter X (FFX) was employed by the City of Los Angeles for 39 years and retired on a regular service pension in January 2002. At the time he retired he suffered from hypertension but didn’t learn it could be job related until years later. In 2006 he suffered a bout of chest pain which years later turned out to be a first sign of coronary heart disease. In 2012, he underwent an angioplasty procedure to have two stents inserted. He then filed a workers’ compensation claim with the City which was conditionally denied until he was examined by a Qualified Medical Examiner.
Rather than seek legal counsel when he filed the claim or when it was denied, he plowed ahead on his own. A “panel” of QME’s was issued by the State of California and from that list (again without seeking counsel) he chose Dr. Z. Dr. Z is not a doctor that I would have chosen as he has a propensity for not finding hypertension to be job related.
FFX was examined by the QME who issued a report that said both the hypertension and the heart disease were job related. He also finds that the hypertension has now resulted in thickening of the heart muscles which constitutes hypertensive heart disease. He concluded that each condition resulted in some permanent disability but then “apportions” most of that disability to nonindustrial factors. He stated that only 25% of the permanent disability was industrial. The doctor also noted in his report that FFX suffered from diabetes which can sometimes be aggravated by stress but he offered no opinion on whether the diabetes was job related.
The claims adjuster on his case then advised FFX that the permanent disability as found by the QME after apportionment was equal to 22% or $12,880.00. The adjuster offered to settle his case for that amount and include a provision of future medical care for his hypertension and heart. At that point, red flags go up and FFX decides he should see an attorney.
I meet with FFX and obtain a detailed history about his health issues and when they developed. I review the QME report and explain that there is a serious question as to whether the “apportionment” of permanent disability described by the QME is legally valid. If the apportionment is invalid, then the permanent disability would rate substantially higher. I also indicate that it is possible that his hypertensive heart disease and coronary heart disease may be covered by the heart presumption for firefighters. For the presumption to apply it must be established that the heart trouble developed or manifested itself during the time the firefighter was employed or up to five years from the last day he/she worked. In this case, the hypertension developed during the time FFX was still working. I also felt that the chest pain noted in 2006 (which was also within five years of the last work day) may have been evidence of his coronary artery disease, but no one ever bothered to obtain those medical records for the QME to review.
I suggested the FFX contact the claim adjuster and offer to settle his case for a higher figure due to the various legal issues that existed. I knew that if the case proceeded to further litigation, the City Attorney would try to raise the statute of limitations as a defense and claim that FFX filed his claim too late because his hypertension was discovered before he retired and the claim wasn’t filed until 2012.
As I’ve discovered over the years, claims examiners seldom do what is right and rarely consider what might happen if litigation is pursued. So after FFX’s counter proposal was rejected by the claims examiner, I agreed to represent him.
I quickly subpoenaed the medical records from 2006 which confirmed the chest pain. The client’s doctor did not follow through on cardiac testing so there was no formal diagnosis made at that time. I then proceeded to depose the QME. At the deposition I had him review the medical records from 2006. He then confirmed that the chest pain in 2006 probably constituted evidence that coronary heart disease was developing and since it was within five years from the last work day, the heart presumption now applied. I also had the doctor testify that the hypertension was present when he was working but didn’t develop into hypertensive heart disease until approximately 2004 (confirmed by the medical records). Again, this meant the heart presumption applied to that condition.
Why was all of this so important? In 2007, the legislature amended the laws on apportionment to prevent any apportionment of permanent disability on a presumptive injury. By having the doctor state the conditions were presumptive, his opinion on apportionment was now invalid and all of the permanent disability was now job related. Thus, the case now rated 71%
At the first mandatory settlement conference at the Workers’ Compensation Appeals Board, the City Attorney argued the statute of limitations (surprise!) and that the heart presumption didn’t apply. Their offer to settle the case at 48% was politely rejected. We proceeded to trial and again the City raised the same issues before the trial judge. After listening to testimony from FFX and reviewing the deposition of the QME, the judge awarded FFX 71% permanent disability which was equal to the sum of $121,297.50 and a weekly life pension of $85.04 (payment to begin after the first sum was paid out over several years). This money was in addition to and separate from his service pension. And his diabetes was determined to be job related with future medical care.
Yes, a satisfying result for FFX. But there is a point to all of this. Workers’ compensation is a complex system. There are procedural regulations, laws and court decisions that interpret those regulations and laws. I am not a magician but I know what I am doing when it comes to handling a workers’ compensation claim, particularly one involving a firefighter. Firefighters and police officers have the benefit of special laws such as presumptions for heart trouble, cancer and other conditions. When those presumptions apply, the amount of the benefits that are paid are directly affected. Further, when a claim should be filed and if it is timely, is not a simple matter. How a claim is filed and what doctor to choose is even more important and should be done with careful consideration.
It is often said in law that he who represents himself has a fool for a client. Don’t be a fool. Discuss your case with a knowledgeable workers’ compensation attorney who deals regularly with safety members. CSFA screens their attorneys for a reason. They know what they are doing and they will offer an honest assessment of your case and whether you need representation. The case of FFX was complex. The fact his claim was filed 10 years after he retired automatically sent up a red flag. Not all such cases will turn out as well as his. The lesson to be learned from this? Be smart and speak with an attorney before you make decisions that are going to affect your claim.
In the meantime, stay healthy and be safe.
By Robert J. Sherwin
Lewis, Marenstein, Wicke, Sherwin & Lee
Leave a Reply