Good Cause to Set Asife Stips F&A. (California)

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Good Cause to Set Asife Stips F&A. (California)

Postby inquiring mind on Thu Mar 26, 2009 8:25 am

DOI's over 5 years ago. Stips were based on the findings of the AME. AME indicated no current need for treatment, but in case of flare ups to see a physician. Unfortunately, when the prior A/A and D/A Stip'd the case two year ago, paragraph 4 indicated "is not". A few months after, IW went back to the PTP and was prescribed maintence treatment which the carrier approved. Now that the carrier discovered what the Stipulations indicated, they no longer want to authorize additional treatment.

Since it has been over 5 years since DOI and one year after Award of benefits, will IW be successful in setting aside the Award due to mutual mistake? Any case in point?

Thanks!

IM
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Re: Good Cause to Set Asife Stips F&A. (California) (California)

Postby steve appell on Thu Mar 26, 2009 11:39 am

Hi "IM"
I would go back to the AME for an updated report. If that report indicates the current need for treatment is at least 1% due the stipped injury, I believe that would supercede the "check the box" on the stip. If your adversary will not agree to go back to the AME, I would then file a motion to compel the AME exam citing LC 5803 and CCCP 338 which gives the WCAB continuing jurisdiction over all it's awards and gives you 3 years from the time you discovered the mistake to litigate the issue.

Good Luck !
Steve

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Re: Good Cause to Set Asife Stips F&A. (California)

Postby jakelast@aol.com on Thu Mar 26, 2009 1:06 pm

Sorry, I am afraid that Steve's desire to provide a light at the end of the tunnel leads to a dead end. Since the date of injury is now over 5 years, the wcab does not have jurisdiction to alter or amend the award. The board's continuing jurisdiction that he references is to enforce an existing award but as the Court of Appeals advised us in the Barnes case, once the wcab's jurisdiction expires, it has no authority to change an award (in Barnes the defendant wanted to termiante the award beyond 5 years and the court held no jurisdicion existed even if there was medical evidence that there was no additional need for medical care).

This case is just the flip side of Barnes and unfortunately there is simply no jurisdiction for the WCAB to act.
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Re: Good Cause to Set Asife Stips F&A. (California)

Postby steve appell on Thu Mar 26, 2009 2:13 pm

Jake is 100% correct as usual ........with one exception.......FRAUD.

Now I realize the initial post mentions "mutual mistake" and not fraud. However, CCCP 338 covers mutual mistake right alongside fraud, and the SOL is 3 years from the discovery of the mutual mistake or fraud. I am not aware of any case or statute law that excludes the 5 year rule from CCCP 338. In fact if I recall correctly, Insurance Code 1871 does not even list a SOL. Also, "Barnes" did not involve mutual mistake or fraud. Therefore respectfully, I do not believe "barnes" is on point here.

Therefore based on the fact pattern above, I believe the applicant can get an amended order award re treatment if s/he satisfies the burden of proof and the 3 yr SOL that there was a mutual mistake at the time the award was issued...................& that's a big if !!
Steve

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Re: Good Cause to Set Asife Stips F&A. (California)

Postby jakelast@aol.com on Thu Mar 26, 2009 11:40 pm

I would agree if you could show fraud, there might be a chance to do something. However Mutual mistake is not likely to get you anywhere. The 5 year limitation is not a statute of limitation, it is jurisdictional. The WCAB looses power to act beyond that time frame.

I think you are hosed on this one.
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Re: Good Cause to Set Asife Stips F&A. (California)

Postby inquiring mind on Wed Apr 01, 2009 10:49 am

I am not sure if this will change the situation, but according to the IW, when he signed the Stips, he does not remember which box was checked on paragraph 4 and that the added two initials next to the deleted sentence, one from the prior A/A and the other is from the D/A. IW went on to state that he does not remember seeing any deletion on the Stips he signed.
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