Safety Members’
Newsletter Summer 2009 by Scott A. O’Mara
RETIRED OR CONSIDERING RETIREMENT? THEN DON’T
FORGET TO CONSIDER THIS!
All safety members who are retired or are considering retirement should have a good understanding of the following three factors: their medical care; the importance of the Workers’ Compensation presumptions as they apply to work-related injuries; and the value of maintaining sufficient insurance coverage to ensure adequate protection for themselves and their families in the event of a vehicular accident. A lack of knowledge in these areas can severely impact the quality of life for a safety member and his/her family and result in dire economic consequences.
The medical care that can be obtained under the Workers’ Compensation system, albeit not as all-encompassing as it once was, still provides a means whereby both current and retired safety members can maintain financial solvency if their medical condition has connectivity to their work. The medical care available can actually be expansive when a work-related injury is involved
Take, for example, the case of a worker who has a job-related cardiovascular problem which is made worse, or could be made worse, by another medical condition that is not work-related. If an individual with a cardiovascular problem becomes diabetic, the only way to adequately and properly control the cardiovascular condition is to control the diabetes. As a result, the diabetes then falls within the parameters of Workers’ Compensation.
Another example would be a worker who takes medication for a job-related condition, but that medication creates another medical problem. For example, medications can create esophageal reflux, gastrointestinal problems or erectile dysfunction. My advice is to go to a website such as WebMD and, one by one, place the name of each medication taken in the search box to learn the side-effects of these medications. If in fact the member has an additional medical problem caused by medication taken for a job-related injury, the ancillary medical problem then becomes the responsibility of Workers’ Compensation as well.
A more extreme example would be a worker who develops paralysis (i.e., experiences a stroke) as a result of a job-related condition, and the paralysis requires 24-hour home health care. Because of the connectivity between the paralysis and the work-related injury or illness, Workers’ Compensation will cover the home health care.
While some health policies place a cap of $3-or-$4 million per body system or part, Workers’ Compensation does not have this limitation. Therefore, if a connection exists between a job-related injury or illness and the care required for a serious medical condition, one can easily see the advantage of establishing that connectivity.
However, even with the expansive nature of Workers’ Compensation coverage, the injured worker needs to be aware of how to deal with providers under the Medical Provider Network (“MPN”). MPN doctors need to be reminded that they are physicians and have an ethical and moral responsibility to the injured worker. They should not be simply an extension of the insurance carrier adjuster and what the adjuster wants in the Workers’ Compensation case.
When necessary, an injured worker can access the Medical Quality Control Board, which is the licensing board for physicians. This option can be of value in certain situations in redirecting a doctor’s or medical group’s priorities to ensure the provision of adequate medical care for the worker.
As some safety members are aware, California, through special legislation, has created a number of work-related presumptions. That is, if certain medical conditions evolve or develop, they are presumed to be job-related. These conditions include heart trouble, hernias, pneumonia, cancer, tuberculosis, blood-borne infectious disease, injury or illness resulting from exposure to biochemical substances, meningitis and lower back injuries. (Lower back injuries apply only to peace officers.)
Understandably, these presumptions cost employers money, so they would prefer to shift the responsibility for these costs to you and your family, which they potentially can do by rebutting the relevant presumption. The “substantial evidence test” requires an injured worker to provide substantial evidence showing the connectivity between his/her job and the illness or injury. If the worker cannot or does not develop such substantial evidence, the presumption will fail.
Furthermore, in many situations, a presumption may be extended to include within its parameters other body systems or parts not specifically set forth in the Labor Code. A prime example is the heart presumption. While this presumption might be thought to have application only to the heart, if an injured worker has hypertension/high blood pressure, and there is evidence of end-organ change, the heart presumption may be extended to include the hypertension/high blood pressure.
This vehicle also has application to other medical conditions. As might be expected, employers do not readily accept extensions of the presumptions.
Another consideration is that the legislation creating the presumptions upon first review indicates the presumptions apply only within a period of 60 months past the cessation of employment, and the injured worker who develops a condition after the conclusion of that 60-month period cannot benefit from the presumption.
However, the relevance of the 60-month limitation actually depends upon the facts of each individual case, as each disease has a different period of latency and manifestation, and these factors in many situations do not allow the imposition of a 60-month statute of limitation.
Recently, I completed a case where the individual member was 15 years beyond his last day of employment, yet I was able to establish the application of the work-related presumption. The success of this case had a tremendous positive economic impact upon the worker and his family. The medical care and home health care coverage go well beyond the parameters of what would have been offered through a Blue Cross, Kaiser or PacifiCare plan.
All safety members who are retired or are approaching retirement must examine and be candid with themselves about their various medical conditions. Many members have spent many years denying that they have a serious medical condition, or that their condition may have connectivity to their work. This denial will have severe economic consequences, not only for themselves, but also for their families.
Besides Workers’ Compensation and retirement, our law practice also involves third-party lawsuit cases when an allegation is made against someone other than the injured worker’s employer or co-workers. Such lawsuits are based upon negligent conduct by a third party which causes injury to the person making the allegation. When successful, third-party lawsuits involve damages which include compensation for medical expenses, wage loss, and pain and suffering.
A significant difference between a third-party case and a Workers’ Compensation case is the potential for unlimited recovery in third-party lawsuits versus limited recovery in Workers’ Compensation cases. The first obstacle in a third-party lawsuit, however, is ensuring that sufficient insurance money is available to cover the responsible third-party’s wrongful act and pay adequate compensation to the injured party.
Many times, unfortunately, third-party negligence is perpetrated by uninsured or underinsured motorists. However, you can protect yourself and your family against such negligence through the purchase of uninsured motorist coverage. This coverage is relatively inexpensive and provides financial security and protection in the event of an accident involving a negligent third party who is uninsured or underinsured. This coverage also protects your household members and yourself up to the limits of your coverage. This umbrella of protection applies whether you are the driver in the car involved or just a passenger, or a pedestrian who has been struck by the negligent driver.
This insurance typically is purchased through your auto insurance, which usually mirrors your liability limits. However, you can purchase it through your homeowner’s insurance or an excess/umbrella policy which has an auto uninsured motorist endorsement.
The most recent policy I have seen provided $1 million uninsured/underinsured motorist coverage for a cost of approximately $300. Please note that this coverage is not marketed by carriers, but they are forced to provide it. Also, brokers many times do not have a full understanding regarding this type of coverage, yet its importance cannot be overstated. If your broker does not have such knowledge and understanding, feel free to contact Mike Padilla and he can assist you in either evaluating your present coverage and/or educating your broker as to the availability of uninsured/underinsured motorist coverage.
You, as a retiree or a potential retiree, have an opportunity to be proactive in your medical care. You also can be proactive in ensuring that any medical conditions which develop that may fall within the presumptions indeed are considered accordingly. Finally, you can protect you and your family against uninsured/ underinsured motorists by communicating with your broker regarding obtaining the proper coverage.
I wish you well.
Scott O’Mara is an attorney who has represented safety members for many years. A strong advocate of injured workers, he has served as Adjunct Law Professor at Thomas Jefferson School of Law and Assistant Professor at San Diego City College. Mr. O’Mara also has previously been appointed Judge Pro Tem. He can be reached at 1-800-LAW1199 or (619) 583-1199; his website is www.law1199.
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Our law firm meets routinely with unions and associations to advise them relative to such issues as Labor Code §§3201.5, 3201.7, 4600 and others; the ACOEM Guidelines; the work-related presumptions; how to pre-designate medical groups to provide care to associations; and how to protect members from the negligence of uninsured and underinsured third parties. We look forward to working with you.
Safety Members’
Newsletter™
is written by
SCOTT A. O’MARA
and published periodically by:
THE LAW OFFICES OF
Scott A. O’Mara
1-800-LAW-1199 (1-800-529-1199)
619-583-1199 / 619-239-9885
O’Mara & Padilla
12770 High Bluff Dr. ● Ste. 200
San Diego, CA 92130
O’Mara & Hampton
2370 5th Ave., San Diego, CA 92101
4049 Brockton Ave., Riverside, CA 92501
www.law1199.com
NOTICE
Making a false or fraudulent Workers’ Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.