Shoulder Injury

[Kaysan]

I was injured on at work 01/02/08 pushing a box from the left side of a counter to the right side, using my left arm.  I felt a pop and pain in mu uppar arm. I was sent to a WC doctor and had a Mumford Procedure done in May of 2008. I was left with an achiness in the shoulder at all times.  I was released with no restrictions in September and 0% diability. In February of this year my shoulder pain increased.  I was sent back to my original doctor who told me "I don't know what you want me to do, I already did surgery, and nothing else is wrong." I promptly called my claims adjuster and requested a QME. I saw him in July and he rated me as having a 10% permanent disabiity due to the surgery and 12% WPI.  I ended up having a subcromial decompression surgery on November 4, 2009. I was released back to modified duty 4 hours a day from 01/02/2010 - 02/04/2010.  I have also been taken off of my second job of Cake Decorator instructor until Jan 31.  Is my new surgery added to the previous 12% WPI? If I am permanently disabled how do I know I am getting a fair settlement?

ANSWER: You MAY have some additional disability in the arm and shoulder as the result of the second surgery.  

BEWARE!   If the surgery had a good outcome, the Qualified Medical Evaluator COULD write that you have LESS permenent disability since the surgery fixed some of that 12% Whole Person Impairment.   IF YOU go back to the QME, and he writes you healed more, you might be less Permanent Disabiilty money.

IF the surgery did NOT go well and you have additional instability and it wakens you in the night now or something is worse than before, DEFINITELY SCHEDULE an evaluation with the QME.

I am very troubled that you needed another surgery but the Panel QME Doctor wrote that you had achieved Maximum Medical Improvement with 12% Whole Person Impairment.  

When there is the chance that another surgery might make you better, you have NOT achieved Maximum Medical Improvement and you are NOT Permanent & STationary.  

That QME Doctor should have written that he cannot determine your Whole Person Impairment nor factors of Permanent Disability until AFTER you recover from the second surgery.   If that doctor is on the Industrial Medical Council's list of approved orthopedic surgeons, I would notify the IMC in Oakland of this serious error in medical judgment.

Did YOU pick this QME, or did the adjuster?   You left out the part about receiving a list of doctors from Oakland.  If the adjuster picked your QME for you and you never got the list of 3 docs from Oakland, you can go get the list of 3 impartial docs now and pick a better one.

Are you receiving Temporary Partial Disability Indemnity payments for the 4 hours/day you don't work plus the Decorating Instructor post 3 hours/week?   by law, you are entitled to 2/3 of that reduction in wages.

For each $100 in income you are missing as the result of this surgery, the Insurer should be paying you $67.   So if you used to get $60/week for teaching, the insurance company owes you a "TPD" indemnity check for $40/week.   

AND:  If you were getting $320/week for 40 hours of work and now you only earn $160/week, the Insurer owes you $106.67/week. Hope that makes sense!

---------- FOLLOW-UP ----------

Nancy,

I wanted to follow up to your question to whether I am receiving TD for the 4 hours of work plus the time I am missing from Michaels.  I am receiving a check for Michaels, and my main job I am on what they call salary continuation, but nothing more.  I also stated in my first question that I was 12% WPI.  I was mistaken I was given a 12% disability and nothing was said about WPI.

[Cresswell]

I'm having trouble finding your question here.

The Labor Code specifies you receive 2/3 of your lost earnings(up to a maximum).

If you get Salary Continuation, that is better still.   Salary continuation is NOT required under the California Labor Code, so the employer continues salary to comply with an employee contract or Memorandum of Understand("MOU").

"I am receiving a check for Michaels" sounds like you are getting 2/3 of the wages you are losing by not working all of your hours at Michaels.

"I was given a 12% disability" is a bit confusing...  

Did the Treating Physician's final report go to the Disability Evaluation Unit at the Workers' Compensation Appeals Board, and the state Rater issued a Rating showing 12% Permanent Disability AFTER adjustment for Age & Occupation?

If the report that rated 12% was before the 2d surgery, you need a new, final report.

If the report doesn't list all your complaints and all factors of disability, you need a new final report.

If the report was after all surgeries and all active treatment and you submitted to the DEU for a Consultative Rating ahd the DEU Rating found 12% Permanent Disability, that means that a Workers' Comp Judge would award you 12% Permanent Disability at trial(if he thought that Treatgin Doc's report was the best measure of your true disability, after trial).