American Ombudsman Enterprises

Frequently Asked Questions

 


 

What is my Union’s Workers’ Compensation Alternative Dispute Resolution (ADR) Program?

The ADR replaces the State system for processing claims for employer liability for injuries to union members arising out of and in the course of employment.

How do I file a claim?

Report your injury to your employer on an “Employee’s Claim Form for Workers’ Compensation Benefits” by filling out and signing the top half Employee Section of the Claim Form.

What is proof of my filing a workers’ compensation claim?

Ask your employer for a copy of the Claim Form after the employer completes the bottom half Employer’s Section.

What does the ADR process consist of?

The ADR is a 3-step process of using an Ombudsman, Mediatior and Arbitrator to resolve disputes and disagreements.

What is the Ombudsman stage of the ADR process?

The Ombudsman stage is a non-litigation first step. Any dispute must first be presented to the Ombudsman for assistance in resolving. Ombudsman is a Scandinavian word that means one who investigates complaints, reports findings and helps to achieve a fair settlement.

What is Mediation?

Mediation is a non-litigation second step of the ADR process and is only available if the Ombudsman is unable to resolve the dispute. The Mediator is a retired workers’ compensation judge who will use informal telephonic communications to resolve issues. The parties are required to use good faith efforts to resolve their dispute with the Mediator.

What is Arbitration?

Arbitration is the litigation stage of the ADR process and is only available if the Mediator is unable to resolve the dispute that was first presented to the Ombudsman. At Arbitration attorneys for the parties can be directly involved and present the case at the Arbitration hearing or trial.

Who do I contact if I have problem or a question concerning my workers’ compensation claim?

Do not hesitate to contact your Ombudsman or the insurance claims examiner or your employer if you have a problem or question regarding your claim. Do not delay in seeking help from either of them.

Will any attorney know about the ADR Program?

Not necessarily. Many attorneys have limited focus and little or no knowledge of ADRs and the statutes that authorize ADRs.

Do I need to get an attorney to file a workers’ compensation claim?

No, in your ADR Program, the filing of the Claim Form with your employer is the filing of your workers’ compensation claim.

What is the role of an attorney if I do retain one?

You always have the right to retain counsel of your own choice. However, your attorney may not be directly involved with the Ombudsman, Mediator, insurer or employer prior to Arbitration. Your attorney should: respond to you in a timely manner; discuss with you what you wish to achieve by litigating your workers’ compensation claim; keep you up to date with written correspondence, medical reports, and other explanatory and informative communications; provide recommendations in writing with supporting documentation when he is urging you to give up your right to future medical treatment in return for cash; and personally discuss your case with you if you prefer not to rely upon a paralegal or other non-attorney staff.

Can I recover money for general damages and punitive damages in a workers’ compensation case, just as I would if I were suing in civil court for injuries caused by another?

No. Workers’ compensation systems that are common in all States and the Federal Government, in general, replace employer civil liability with a system of recovery for employment injuries and which presumably operate without regard to the fault of any party. In creating workers’ compensation systems over 100 years ago employees gave up their rights to establish fault and recover large civil damages and the employer lost their rights to exonerate themselves by establishing their innocence or employee negligence.

What are the benefits available to me for a workers’ compensation injury?

Benefits consist of; (1) temporary disability, which is wage-loss indemnity; (2) full medical treatment; (3) permanent disability, which is indemnity for any residual handicap caused by the injury; (4) death benefits to qualified dependents; (5) vocational rehabilitation benefits or supplemental job displacement benefits, which are to be used for retraining.

Can I pursue my claim by filing an Application for Adjudication of Claim with one of the local offices of the State Workers’ Compensation Appeals Board (WCAB)?

The local offices of the WCAB do not have jurisdiction of your ADR Claim. Exclusive jurisdiction of the processing of your claim rests with the ADR, subject to limited review after exhaustion of the ADR process by a Petition for Reconsideration filed with the Reconsideration Unit of the WCAB, in the same manner that review is available from decisions of the local offices of the WCAB.

Can I choose my own physician to treat my work related injury?

Yes. Under your Union’s ADR the employer and your Union have negotiated an exclusive list of authorized treating physicians. In general, that list will include your Union’s Health Trust preferred provider organization authorized medial providers. Some of the Union’s Health Trust medical providers do not accept workers’ compensation cases and so you need to check with them first.

Can I change my treating physician?

Yes. You have the right to a one-time change of treating physician. Consider any selection of a treating physician carefully.

Do I have the right to file a claim of discrimination if my employer fires me because I filed a workers’ compensation claim?

Yes. However, a recent court decision requires that any such discrimination claim be filed exclusively with one of the local WCAB offices. The ADR will not address issues of discrimination filed under California Labor Code section 132a.

How long will it be before I can return to work or resolve my claim?

Your case will proceed based on the medical opinions of your treating physician, secondary physicians, qualified medical evaluators and agreed medical evaluators. In general, your medical condition will dictate the length of time it takes to resolve your claim and/or return to work.

What is a primary treating physician?

A primary treating physician is an ADR authorized medical provider who is primarily responsible for managing the care of an injured worker, and who has examined the injured worker at least once for the purpose of rendering or prescribing treatment and has accepted the responsibility for monitoring the effect of the treatment thereafter. There shall be but one primary treating physician. The injured worker may change his or her primary treating physician one time and the new primary treating physician must be an authorized provider.

Does my primary treating physician have the responsibility of reporting to the insurance company?

Yes. The primary treating physician has specific requirements in California to meet regarding filing reports with the insurer. The primary treating physician is responsible for obtaining all of the reports of secondary physicians and shall within 20 days of receipt of each report incorporate, or comment upon, the findings and opinions of the other physicians in the primary treating physician’s report and submit all reports to the insurer.

What is a secondary treating physician?

A secondary physician is any physician other than the primary treating physician who examines or provides treatment to the injured worker and who has not been designated as the new primary treating physician to replace the initial primary treating physician. Secondary physicians, physical therapists, and other health care providers to whom the injured worker is referred by the primary treating physician shall provide timely written reports to the primary treating physician and provide copies to the insurer.

What is a Qualified Medical Evaluator (QME)?

The Medical Unit of the State’s Division of Workers’ Compensation examines and appoints physicians to serve as QMEs, to provide opinions on disputed issues. Their QME designation allows them to perform examinations of injured union members to determine nature and extent of disability, level of benefits, etc.

When do I need a QME?

In your ADR program, a QME opinion is necessary to resolve disputes arising over the treating physician’s or another QME’s opinion, findings, lack of findings, or a dispute over a denial of industrial causation of injury.

How do I obtain a QME?

You must file a Request for a QME with the Ombudsman’s office. A panel of 3 QMEs selected based upon your California residence zip code will be sent you in the specialty you have selected within a few days of receipt of your Request for QME. You must select one QME from the panel to perform the second opinion.

Does the ADR QME process differ from the State’s second opinion process?

Yes. Legislation adopted on 4/19/04 changed the State’s second opinion process significantly and has caused considerable confusion over the State’s process. No such confusion exists over the ADR process.

What is an Agreed Medical Evaluator (AME)?

An AME is a physician selected by agreement between the employer/insurer and the injured union member to resolve disputed medical issues referred by the parties in a workers' compensation proceeding. The AME findings, in general, will be binding on the parties to the agreement. In the ADR the parties may agree at any time to use an AME to resolve and settle any and all medical and/or industrial causation issues.

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