Va Doctor Is Flip-flopping His Decision!

[racemech]

I had surgery in January to repair a right flank hernia and incarcerated colon as a result of surgery done while in the USMC. Well...I finally got Temp 100% for Feb and Mar just last week. Now after repeatedly requesting that my doctor fill out the required paperwork for my employer's short-term disability, he finally came through. Now he retacts all of his earlier statements (in writing) about the lifetime 5 lbs lifting limits, possible reinjury and no second repair. I think he got pissed because I had to get the patient advocate involved to get the paperwork completed. What now? I will get the ball rolling on a second VA opinion and probably an IMO. This guy has been a surgeon for over 50 years, and pretty opinionated. This is a major setback for us. I have changed my daily living habits, my employer does not want to take the risk of me re-injuring myself. Frankly, neither do I. At this moment, I am disgusted, unemployed and confused.

[vaf]

Your plan to get a second VA opinion as well as an independent IMO outside the VA is an excellent one -- you can use both to support your short-term disability application, as well as a potential VA TDIU claim. You may also use them to support a claim for Social Security disability, if you're unable to work.

Regarding your short-term disability application, I would suggest you send in the surgeon's original statement that contradicts the disability paperwork he completed under duress. You can offer a brief explanation that the form was completed under duress from the Patient Advocate's office, after the physician refused to respond to your request to complete the form. This should raise enough confusion with the insurer where you'll probably be sent to a disability doctor for an evaluation.

Two questions:

Are you unable to work for the foreseeable future, or is this a temporary situation?

Do you also have disability insurance coverage under a personally purchased or employer-sponsored long-term disability plan?

[racemech]

VAF,

To answer your questions, I have been an automotive and heavy equipment mechanic for the past 10 years. As a result of this surgery, I will no longer be able to pursue this occupation. The VA has even approved me for Voc Rehab. My short and long term disability is through my employer. Here is the catch...my employer has been paying me short-term since my sugery. The report I got today from my doctor now states that I was able to return to full duty back in March. My question is, if that were true, then why have I been out of work, why has the VA approved me for Voc Rehab...? This doctor is really trying my patience, and my life. This is getting harder to deal with day by day. The VA just "ignored" major parts of my claim. I also have hypertension, medicated by the VA, coupled with the fact that I have one kidney. The VA brushed off my hypertension claim, even though there is evidence in my SMR. They even claim it was a result of my kidney removal, even though, my SMR states that I was diagnosed prior to the kidney removal. Depression has also set in, but that is through my personal doctor. I haven't even tried to claim that yet.

[vaf]

Here is the catch...my employer has been paying me short-term since my sugery. The report I got today from my doctor now states that I was able to return to full duty back in March.

A report you received in June retroactively clears you for work in March? First, normally, employers require doctors to clear an employee in writing, with an effective date, BEFORE returning to work after medical leave. This is normally a pre-requisite, otherwise, the employee does not return to work. This is proof that the employer performed due diligence in not interfering, for instance, with FMLA leave, or in the patient's recovery. It's to protect the employer against liability lawsuits, or accusations of violating FMLA regulations.

The VA doc says he cleared you to return to work last March -- OK, then ask for a copy of the documentation he supposedly supplied to you or to your employer clearing you to return to work, or better yet, ask your previous employer to request it.

Wherever the report you received today is eventually sent, you should include a copy of the doctor's prior report that contradicts it, as well. Discuss the circumstnaces behind the discrepancy (your having to get the patient advocate's office involved) and offer to undergo another physical at the insurer's expense. Then, follow through with your plans regarding getting another VA doctor assigned to you and to give you an IMO, as well as a non-VA IMO if you can possibly do that.

My experience with long-term disability -- File the application as soon as the insurer will accept it (it's an implied LTD claim by the sound of your circumstances, that is, you're not expected to recover sufficiently to return to work). If they deny it, get an ERISA attorney to handle the appeal, do not -- repeat, do not -- try to handle an appeal on your own. Dealing with LTD insurers is like swimming with barricudas, very treacherous. The earlier an attorney gets involved in an appeal, the better the protection he/she can afford the client. The attorney does not have to be located in your state; ERISA is federal law, so any ERISA attorney can represent you. I can discuss this further with you if you like, but these cases usually end up denied, then appealed, then you get a lowball amount of money dangled in front of you to settle and then disappear (no future claims), the dickering goes back and forth, and then you either reach a figure both sides agree to, or it goes to Court (a judge decides these cases, not a jury).

Also, file for TDIU and file for Social Security disability. You can do all of this at the same time. If you take any medications for depression, that's another reason why you can't work around machinery and your employer doesn't want you to return to your old job. Others disagree I'm sure, but here too, I believe in getting a lawyer right at the very beginning of the claim. We did it that way, and my husband was approved on the first try, no easy matter in this state. We used Binder and Binder.

[john999]

Flip floppers will kill you at the VA. It is like the open a highway to denial. ERISA is an one of the most abused concepts the insurance companies have found. They get a PA to say you are able to work and they are able to overrule five shrinks, an orthopod and a brain surgeon. I got that straight from an insurance lawyer.

[Hoppy]

Overriding the opinion of a treating surgeon by an examining physician will be difficult. I recommend that you get the second opinions from surgeons who perform the same type of operation you had. If he did contradict himself he could blow it off as an error by a secretary or just a good old fashioned mistake whereby you occurred no loses. They also play the provisional diagnosis V. final diagnosis game. They also reserve the right to change their mind based on new findings. They are pros at flip flopping.

The surgeon who operated on me flipped flop. He originally released me to work then later restricted me from working. I did not even ask to see the surgeon for the second report. I was required to see him because my employer had control of treatment. Nobody thought the flip flop was significant. I fought my termination under labor law and the ADA. The state and the feds both made final determinations. I tried to retain my employment after the surgeon who operated on me wrote permanent restrictions. The lawyers tried every trick they knew to keep me from losing my job. When all was said and done the last report from the surgeon who operated on me was given weight and final. I have not worked a day since. I realized that if they could tell me I could not work due to a knee that might get aggravated then I was crazy to work with lifethreatening angioedema that had put me in an ER 30 times.

[jsdwd]

Flip floppers will kill you at the VA. It is like the open a highway to denial. ERISA is an one of the most abused concepts the insurance companies have found. They get a PA to say you are able to work and they are able to overrule five shrinks, an orthopod and a brain surgeon. I got that straight from an insurance lawyer.

I have had two lifetimes of experience with ERISA. It is the biggest rip-off in the country. The insurance lawyer you quote is not lying.

[Ricky]

Here is the catch...my employer has been paying me short-term since my sugery. The report I got today from my doctor now states that I was able to return to full duty back in March.

A report you received in June retroactively clears you for work in March? First, normally, employers require doctors to clear an employee in writing, with an effective date, BEFORE returning to work after medical leave. This is normally a pre-requisite, otherwise, the employee does not return to work. This is proof that the employer performed due diligence in not interfering, for instance, with FMLA leave, or in the patient's recovery. It's to protect the employer against liability lawsuits, or accusations of violating FMLA regulations.

The VA doc says he cleared you to return to work last March -- OK, then ask for a copy of the documentation he supposedly supplied to you or to your employer clearing you to return to work, or better yet, ask your previous employer to request it.

Wherever the report you received today is eventually sent, you should include a copy of the doctor's prior report that contradicts it, as well. Discuss the circumstnaces behind the discrepancy (your having to get the patient advocate's office involved) and offer to undergo another physical at the insurer's expense. Then, follow through with your plans regarding getting another VA doctor assigned to you and to give you an IMO, as well as a non-VA IMO if you can possibly do that.

My experience with long-term disability -- File the application as soon as the insurer will accept it (it's an implied LTD claim by the sound of your circumstances, that is, you're not expected to recover sufficiently to return to work). If they deny it, get an ERISA attorney to handle the appeal, do not -- repeat, do not -- try to handle an appeal on your own. Dealing with LTD insurers is like swimming with barricudas, very treacherous. The earlier an attorney gets involved in an appeal, the better the protection he/she can afford the client. The attorney does not have to be located in your state; ERISA is federal law, so any ERISA attorney can represent you. I can discuss this further with you if you like, but these cases usually end up denied, then appealed, then you get a lowball amount of money dangled in front of you to settle and then disappear (no future claims), the dickering goes back and forth, and then you either reach a figure both sides agree to, or it goes to Court (a judge decides these cases, not a jury).

Also, file for TDIU and file for Social Security disability. You can do all of this at the same time. If you take any medications for depression, that's another reason why you can't work around machinery and your employer doesn't want you to return to your old job. Others disagree I'm sure, but here too, I believe in getting a lawyer right at the very beginning of the claim. We did it that way, and my husband was approved on the first try, no easy matter in this state. We used Binder and Binder.

EXCELLENT ADVICE.