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This story could also be titled, “The Things Insurance Companies Won’t Do. “The first thing insurance companies won’t do is pay money to or on behalf of victims of injury if there is any way to avoid it. Read on!
Roy was a marketing executive for a major winery when he became a paraplegic and was rendered totally incontinent as a result of a freak injury during a business trip. The workers’ compensation insurance carrier immediately acknowledged its responsibility for the injury and provided medical treatment and indemnity benefits. So far, so good. However, many months later Roy’s attending doctors declared him to be medically “permanent and stationary,” which has the legal effect that the injured employee no longer receives temporary disability indemnity. At this point the extent of his permanent disability must be evaluated and payments of permanent disability indemnity commenced. In Roy’s case the insurance carrier improperly reduced the rate of his weekly payment by over 50% when it should have continued payments at the same rate. The plot thickened.
In California if one is permanently disabled he or she is entitled to permanent disability indemnity benefits at the temporary disability indemnity rate. In Roy’s case this meant a payment of $490 a week for life, as opposed to the $230 per week or less that was now being paid by the insurance company. This is when Roy came to us. California Labor Code Section 4662 provides that an injury resulting in”practically total paralysis” is conclusively presumed to cause permanent, total disability. Further, the California Schedule For Rating Permanent Disabilities provides that complete incontinence results in permanent total disability. So Roy qualified for the benefit for two separate reasons.
A “no-brainer to anyone other than this insurance company. It hired a law firm, which promptly filed an application at the Workers’ Compensation Appeals Board (“WCAB”) with the goal of proving that Roy was not entitled to permanent total disability benefits of $490 per week, in spite of the conclusive presumption arising out of his paraplegia. This is when Roy retained us. We immediately notified the defense attorneys that at no time would we ever settle for anything less than permanent total disability benefits. Further, we advised them that because they filed the WCAB application, we would expect them to pay our attorneys’ fees in accordance with Labor Code Section 4064(b). They were under the erroneous illusion that because Roy had returned to work, he could not be 100% disabled, even though that was conclusively the case as a matter of law. Next, in pursuit of this fallacy they had Roy examined by a “qualified medical examiner” who opined that Roy could do “sedentary work. “This would have resulted in a much lower permanent disability indemnity benefit.
We took the deposition of the insurance company’s medical expert shortly after receiving his report. He conceded that Roy was a paraplegic and was totally incontinent of bladder and bowels. Likewise he conceded that Roy’s ability to do “sedentary work” would be limited by his pain, by his need to deal with his catheters, and by his immobility. A trial was held at the WCAB shortly thereafter. The Workers’ Compensation Administrative Law Judge awarded Roy permanent total disability benefits and ordered the insurance company agreed to pay us an attorneys’ fee in excess of $80,000 for our work on Roy’s behalf. The insurance company planned to appeal the fee award, which we compromised for a sum in excess of $70,000. Since that time we have continued to represent Roy and have negotiated a modified and insured van for him, assistance traveling on business trips, and transport of his belongings and medical equipment when he moved out of state. All of these things fall under the broad umbrella of medical treatment necessary to cure or relieve from the effects of an injury, a benefit to which every injured worker is entitled.
We’d like to tell you a bit more about Roy and his employer. Rather than viewing Roy as damaged goods after his injury, his employer was entirely supportive. It helped modify his residence so he could telecommute and market from home, purchased a modified van for him, and supported him in every way possible. Roy himself has never indulged in self-pity or a belief that he can’t do anything he sets his mind to. He has continued his successful career and has a rich life with his friends and family. Roy inspires us, and we feel privileged to know him. The two partners in our firm who worked on his case remain his friends, and we see him socially when he is back in San Francisco.