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Articles emphasizing practical knowledge you can't find in practice guides

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Letters to the Editors

Meet the Editors
• Warren Schneider
• Marjory Harris





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 had recently
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
any medications.

Since my client would not lie to me, it was obvious there was a failure to
communicate somewhere, somehow. I called the applicant’s counsel, who had
filed the request for expedited hearing. He could not provide any further information
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, it apparently
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 the doctor’s
office, the pharmacy’s computer system and my client’s medical administrator.
The adjuster was not in the loop. A few more phone calls and I thought we had the
problem solved.

We agreed anytime a delay may occur, the pharmacist would directly telephone my
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 with
the judge, who approved them after several questions. Problem resolved, we thought.

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 next.

The following day, I received a Request for Expedited Hearing in the mail with an
allegation that certain medications were not being authorized. I spoke with
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 facts
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 of the
ramifications of denying authorization. Penalties, contempt, fines, etc. We
discussed the facts of the case, including the upcoming AME examination. The
adjuster reversed course and immediately authorized the medications. Fortunately,
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 was fortunate
not to sustain any actual loss of medical treatment. The DOR was withdrawn and
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 which could
develop from the fact pattern. It opened the students’ eyes.

The lesson to be learned was communication. Applicant’s counsel and I
communicated. He communicated with his client. I communicated with mine.
What could have been a very nasty fight with the applicant actually suffering
significant pain, turned into a resolved problem with no further issue of
medication denial.

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 may
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 here.

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

The Defense Perspective:
How Not to Create Penalties, or the Defense
Attorney is Always the Last to Know

In this new series, Michael G. McDonald, Esq. of the McDonald Law Corporation offers practical advice to WC lawyers and adjustors.

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