Legal Question in Workers Comp in California

The WC law does not require a person to undergo medical treatment. I am not positive, but you probably will be rated at what your condition is without the surgery, but defense counsel might convince the WC judge to reduce it some to what the anticipated results would be if you had surgery, but you would counter that they have to add on to your award the cost of surgery and since the first surgery was unsuccessful it is questionalbe the second would succeed.

By not having the surgery, perhaps you have not reached a level of maximum improvement so you are not permanent and stationary and ready for a PD rating. After an unknown period of time, your condition might be considered stationary so you might be rateable.

What your level of permanent disability is I can not say becuase that depends upon what the Drs say is your level of work restriction, not just the loss of range of motion. You might need to see an experienced WC attorney to get the Drs to give you the highest rating you could obtain. Normally the Board awards a flat percentage of the PD [8-12%] but maybe you can find an attorney who would take a lesser amount since less work is involved in your case, but it will be difficult to find someone willing to do that.

You should check with the Drs as to what they think will be the outcome if you do not have surgery and why the first one was unsuccessful. Often wtihuot surgery the shoulder muscles will heal but with some scar tissue and different muscles are used to move the joint so the is not full range of motion. In some countries with socialized medicine, rotator cuff tears normally are not operated on so there should be enough literature around as to the results for a Dr, to tell you what to expect. You should also find out why the first surgery did not work so as to decide to have more surgery or not.

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