GQ Corner
Q: Is there a standard or typical reduction on third party liens? I have a file where the attorney has requested that we reduce our lien by 45%. Is that typical? I was asked if liens are typically released by 1/3 due to attorneys’ fees.
A: In terms of a standard reduction of the lien, the answer is no, there is none. Depending on the facts of the case, the carrier may decide to agree to reduce the lien to facilitate a settlement. The carrier, however, can also decline to do so and assert the full lien. In terms of the recovery from the third party case, though, carriers typically will pay up to 1/3 for attorney’s fees, and then a proportionate amount of expenses, if the carrier is not actively pursuing the third party case and is simply riding the coattails of the claimant’s third party attorney.
Q: A medical clinic saw employee for a knee injury. Doctor placed the employee at MMI and no impairment on same day employee was examined, which was the date of injury. Employee has continued to work for the same employer. His knee pain continued and had several follow up visits. MRI was subsequently performed and read as showing a meniscus tear. Surgery has been recommened. The employee did not dispute the doctors assignment of no permanent impairment. Is the MMI date, which is the date of injury, with no impairment still valid and we can use it to deny disability benefits?
A: The certification may be valid on this face, and as such, you may not owe TIBs. If the claimant is within the 90days to dispute, he or she can still dispute by requesting a DD or a BRC. The claimant may still contest the rating if it is beyond the 90th day, and you would then end up at a BRC. In that instance, the claimant may allege an exception to the 90-day rule, such as inadequate or improper medical treatment or a misdiagnosis. Given that the MMI date is the date of injury, a hearing officer may well find that an exception does apply, depending on the other medical evidence.
Please note you will have to prove when the claimant received the certification via verifiable means to assert the 90-day rule. If you did not send a copy of the report to the claimant via certified mail, that may be difficult to prove. If not, and you want to maintain that the MMI/IR is correct, send it now, along with a PLN 3.
The other piece of the issue is extent of the injury. Perhaps a records review and expert medical opinion is in order so you can assess the extent of injury. If the doctor thinks the injury includes a meniscal tear, you will need to re-assess the wisdom of alleging that the MMI date on the date of injury is correct.
Q: Claimant was assigned an impairment rating in January of 2013. He did not dispute the rating. Since that time he has had additional surgery on his foot. Can the doctor now rescind the initial rating and provide a new rating? Is there a time limit?
A: Assuming you sent a copy of the January 2013 certification to the claimant by verifiable means, that certification is now final. The doctor can certainly indicate he is now rescinding the certification, but that means nothing unless you believe the claimant does in fact meet one of the exceptions to the 90-day rule. If you think you have a viable 90-day issue, then the burden is on the claimant to establish that one of the exceptions applies to his case. If you’re not convinced an exception applies, then you can ignore any new certification. Claimant will need to request a BRC to pursue the dispute.
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