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.

[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.