Should I file a claim for aggravation of previous back injury?

by Roger
(Los Angeles, California)

I have a pre-existing back condition: degenerative cervical spine with stenosis and multiple herniations of the lumbar spine. I was out on disability leave earlier this year but returned part-time. I am considering filing a workers' comp claim now on the basis of an aggravation of pre-existing condition.

I work standing up and sitting down, but only part-time. The standing affects me, as I had a painful, hairline micro fracture of my foot 2 years ago attributable, according to the podiatrist, from a combination of standing and arthritic bones. My concern is that, by filing claim, it will be rejected. If the case goes to AME/QME, who knows the outcome?

Meanwhile, if it is rejected, I have no temporary disability to survive on. Further, it will probably be several months before the workers' comp carrier makes a decision one way or the other. Also, the employer can, through artifice and subterfuge, use the absence to free up the position and let me go.

Both my pre-designated treating physician and my lawyer urge me to file, but they would not be the ones to go hungry if the claim is denied. What to do? Do I have other options? Any perspective you can give would be appreciated. Thank you.

Visitor Question:
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ANSWER for "Should I file a claim for aggravation of previous back injury?":

Roger (Los Angeles, California):

It is our policy here at ICC not to interfere with the attorney-client relationship. To do so would be entirely inappropriate. You should listen to your attorney's advice and heed his or her counsel.

Generally speaking, it is important to be clear on the issues involving QME (Qualified Medical Examiner) and AME (Agreed Medical Examiner). Sections 4060-4068 of the U.S. Labor Code set out the applicable law.

If you have an attorney, you and your workers' compensation adjuster or administrator might agree on a doctor to to evaluate you and come to an agreement on the proper treatment, type of work you are physically able to perform, and amount and type of compensation you should receive. This type of doctor is referred to as an Agreed Medical Examiner (AME).

A Qualified Medical Evaluator (QME) is a doctor who evaluates you when there are questions about what type and amount of benefits you are entitled to. This includes long term medical treatment.

By seeing either type of doctor you run the risk of being evaluated in a manner in which you and your attorney may not agree with. Yet, if you don't submit to either, you may end up with nothing.

Best of luck,

Judge Calisi

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