Some time in the recent past, I had
an opportunity to attend an expedited hearing at
a Bay Area Workers’ Compensation Appeals Board. The Applicant
obtained counsel and was concerned that some of her medications
were not being
authorized by the claims adjuster. Like a good attorney, I thoroughly
reviewed the file
and could not find any evidence that the medications were being
delayed or denied.
I then contacted my client and was informed the adjuster had not
denied or delayed
Since my client would not lie to me, it was obvious there was a
communicate somewhere, somehow. I called the applicant’s counsel,
filed the request for expedited hearing. He could not provide any
to me, as he needed to speak with his client.
The next day, we appeared at the hearing. Now, think about that.
I received the
file the day before an expedited trial on medical issues. The client
knew about the
DOR and hearing for at least a couple of weeks. To give her credit,
took time to get authority to send the matter to counsel and then
have the file copied.
At the expedited hearing, the applicant advised her attorney she
continued to have
problems getting the Oxycontin approved. This medication is a heavy
duty drug and
requires a “triplicate” form. Once I found out the complaint,
I contacted the
pharmacy. Sure enough, the delay in authorization took place between
office, the pharmacy’s computer system and my client’s
The adjuster was not in the loop. A few more phone calls and I thought
we had the
We agreed anytime a delay may occur, the pharmacist would directly
adjuster. This put my adjuster into the loop, the applicant continued
to receive her
medications and we would await our AME appointment. We filed stipulations
the judge, who approved them after several questions. Problem resolved,
Three weeks later, I received a telephone call from applicant’s
counsel advising the
medications were denied, not delayed. I immediately telephoned my
client. She was
no longer employed at that location. A new adjuster had taken over
the claim. I left a
message to immediately call me. I left a message the next day, and
The following day, I received a Request for Expedited Hearing in
the mail with an
allegation that certain medications were not being authorized. I
applicant’s counsel. We discussed the issues at hand and had
a good talk about
the dispensing of the medications.
Following a few more calls and some faxes, I finally found out what
was up. It seems
my adjuster, new to the file, had unilaterally stopped all prior
authorizations until she
could get a handle on the medical costs and facts of the case. Those
happened to include our stipulated authorization for medications.
It seems a lot
of money had been spent on medications, as many can imagine.
Yikes! (That’s a legal term for lay persons reading this article.)
Lots of numbers and words swarmed around my head: 5814, 5814.5,
5814.6, 5813, 4650, 4603.2,
contempt of court, sanctions…UGH!
Damage control came to mind. I immediately advised the new adjuster
ramifications of denying authorization. Penalties, contempt, fines,
discussed the facts of the case, including the upcoming AME examination.
adjuster reversed course and immediately authorized the medications.
the applicant still had a day’s supply of medications when
the authorization was
given. Although there was a delay in the authorization, the applicant
not to sustain any actual loss of medical treatment. The DOR was
my client did not need me to make another appearance at the Board.
That night, I lectured at an IEA class. I used this story as a tool
on what not to do
when they review a file. We discussed the various penalty issues
develop from the fact pattern. It opened the students’ eyes.
The lesson to be learned was communication. Applicant’s counsel
communicated. He communicated with his client. I communicated with
What could have been a very nasty fight with the applicant actually
significant pain, turned into a resolved problem with no further
The workers’ compensation community is a small community.
Over the last
several years, I have seen a loss of respect and civility at the
Boards. All of us can
be strong advocates for our clients, but we should maintain civility
and respect for
each other. It is in all of our clients' interests to talk and act
respectful to each other.
We should be problem solvers, not problem creators. Reasonable minds
differ. Let’s communicate.
Michael G. McDonald is the founder of McDonald
Law Corporation in Concord, California and a
Certified Specialist in Workers' Compensation Law,
State Bar of California.
For more information, click
Michael G. McDonald, Esq.
McDonald Law Corporation
1800 Sutter Street, Suite 430
Concord, CA 94520-2563
Voice: (925) 363-4380
Fax: (925) 363-4352
Other locations: Sacramento, San Jose and Fresno