Denial based on ER level of investigation (California) (Cali

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Denial based on ER level of investigation (California) (Cali

Postby carmen@npnlaw on Sun Nov 11, 2018 4:43 pm

Denial states "facts and evidence obtained through our investigation do not substantiate your injury." ER did send IW to the doctor who found a slipped disc. IW is a field worker. Treated for 2 months before RTW . ER never gave IW a claim form. IW filed claim form with ER after becoming represented. DA claims that case is barred based on denial and IW not filing an application with the board until 13 months after denial was issued. I say Honeywell applies.
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Re: Denial based on ER level of investigation (California) (Cali

Postby carmen@npnlaw on Sun Nov 11, 2018 4:49 pm

Also revelant is that the IC had an investigator call IW for a recorded statement using an interpreter. IW does not speak English or Spanish but some indigenous language. IW denies ever telling investigator that the injury did not happen at work. Inspite of a total denial DA was able to obtain an order compelling deposition.
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Re: Denial based on ER level of investigation (California) (Cali

Postby vampireinthenight on Tue Nov 13, 2018 9:10 am

Are you sure there was no original claim form filed at the time of injury? It doesn't make sense that there would be a denial without a claim on file.

Also revelant is that the IC had an investigator call IW for a recorded statement using an interpreter. IW does not speak English or Spanish but some indigenous language. IW denies ever telling investigator that the injury did not happen at work. Inspite of a total denial DA was able to obtain an order compelling deposition.


How is that relevant?
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Re: Denial based on ER level of investigation (California) (Cali

Postby carmen@npnlaw on Tue Nov 13, 2018 9:50 am

Relevant in that the denial was based on the statement made by the IW not on the doctor's first report that found injury thus letting me to believe that the denial was baseless. I have requested a copy of the dwc-1 from the carrier with no results. I have subpoenaed the claim file. IW claims that she was not given the dwc-1.
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Re: Denial based on ER level of investigation (California) (Cali

Postby LawAdvocate on Tue Nov 13, 2018 10:12 am

Failure to provide a claim form tolls the statute. By providing medical care, the employer was deemed to have knowledge.

DA is wrong. But go ahead and make a fool of him/her for not knowing that until the employer provides a claim form that no statute starts.
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Re: Denial based on ER level of investigation (California) (Cali

Postby LawAdvocate on Tue Nov 13, 2018 10:13 am

Also meant to add, file a complaint with the Audit Unit against the claim adjusting organization for a bad faith denial when the only medical reporting at the time found an industrial injury.
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Re: Denial based on ER level of investigation (California) (Cali

Postby vampireinthenight on Wed Nov 14, 2018 9:11 am

If everything your IW says turns out to be true, then yes, the SOL would toll. Usually. Knowledge is key to these situations and is usually inferred through testimony, service of docs, etc. It is rarely very clean. I wouldn't pull out the machine gun yet. Even if the SOL is tolled, you have a factual issue of injury AOE/COE to overcome (prove) and it sounds like a recorded statement to rebut. It's not necessarily a baseless denial if the statement is accurate.
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Re: Denial based on ER level of investigation (California) (Cali

Postby carmen@npnlaw on Thu Nov 15, 2018 8:17 am

So if the recorded phone statement is not in the subpoenaed claims file and can't be produced does this make the denial of benefits in bad faith?
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Re: Denial based on ER level of investigation (California) (Cali

Postby LawAdvocate on Thu Nov 15, 2018 9:42 am

No, that does not make the denial bad faith on its own standing, so the issue is they can produce the recorded phone statement simply by having it transcribed by the entity that took the recorded phone statement. Issue a subpoena for same and if they don't respond, get it ordered at the WCAB as well as preparing a Petition for Attorney Fees and Sanctions.
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Re: Denial based on ER level of investigation (California) (Cali

Postby vampireinthenight on Thu Nov 15, 2018 9:51 am

A couple points of distinction. There is an actual recording which is referred to as a "recorded statement" (audio file) and then there is a transcribed recorded statement (looks sort of like a depo transcript) and then usually an investigator summary of the statement (investigative report). A lot of times the first two stay with the investigator, so may not actually be in a claims file. Those however are what you want and should be produced if you specifically ask for them.

If neither the recording nor the transcription exist then that is a really poor investigative firm and will probably go a long way in your challenge of the accuracy of the denial. But, again, you need to iron it out a little and make sure this is the case.
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