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FAQs
Q. What is workers’ compensation?
A. Workers’ compensation in California is a system of no-fault coverage that provides benefits to those who have been injured while performing activities while under the course and scope of their employment. People who apply for these benefits are commonly referred to as “applicants“.
Every employer in the state of California must be either insured or they must be “permissibly self-insured” so that they may properly provide these benefits to their employees. This way, if you are injured at work, there will be certain benefits provided to you regardless of whether you were at fault or your employer was or no one was.
As applicant’s attorneys, it is our job to maximize these benefits for you.
Q: Am I covered by workers’ compensation if I fell in the parking lot at work after clocking out / before clocking in?
A: It depends. The insurance claims adjuster (or Claims Administrator) may claim that this is not covered by workers’ comp. under the “going and coming rule”. However, there are many exceptions to this rule and the facts of your injury may fall within one of them.
Q: I’ve worked at the company for many years and have developed pain in my wrists and elbows while doing certain repetitive activities. Is this covered by workers’ compensation?
A: All types of injuries can be covered. Performing repetitive work in the same motion over and over, such as by working on an assembly line may cause you carpal tunnel syndrom, cubital tunnel syndrom, shoulder problems, neck problems, etc. This is a phenomenon which attorneys and judges refer to as “continuous trauma”, and it is covered.
Of course, a specific event such as hurting your back in a fall or being involved in an auto accident while making deliveries also fall within workers’ compensation coverage as well.
Interestingly, “compensable consequences” of the original injury can also fall under your workers’ compensation case. So, for example, if you injured your left knee and you limped for a great deal of time and over-compensated by putting all of your weight on your right knee, causing it to be injured, your right knee becomes part of the case. If you develop internal problems as a result of taking pain medication or depression due to pain, those conditions may also become part of your case.
We ask that our clients notify us of any/all compensable consequence symptoms so that we may properly document them and advocate on their behalf to ensure that these injuries become part of the case as well.
Q. What are the benefits of workers’ compensation?
A. In general, workers’ comp. insurance provides five (5) main benefits:
Medical Treatment “to cure or relieve you of the effects of your industrial injury”. I place this definition in quotes because, as you can imagine, medical treatment often becomes a source of dispute between the applicant’s attorney and the insurance Claims Administrator. The decision you make in regard to which doctor you choose to treat with is paramount to the level of treatment you receive. We will refer you to the best doctors for your medical condition(s).
Temporary Disability Payments. While the doctor takes you off of work completely, payments should be made to you at the rate of 2/3 of your average gross weekly salary (with certain statutory maximums depending on your date of injury). The payments should arrive every two weeks on about the same day. If they do not, you are entitled to a statutory 10% penalty. Therefore, we ask our clients to save the envelopes that their checks arrive in so that we may prove that the claims adjuster sent your check to you late and demand that the penalty be paid. You are also entitled to these payments if your employer cannot accomodate your work restrictions or if they cannot provide you with a full time accomodation.
As our client, our office will review your average weekly earnings with you as well as the evidence submitted by your employer to its insurance carrier to determine if the amount you are receiving is fair.
Permanent Disability Indemnity. If after you reach Maximum Medical Improvement, you are not 100% better, then you likely have a permanent disability. The amount of the disability is highly dependent upon the medical experts you have on your case. If the medical expert(s) was/were chosen by the insurance carrier, you may receive less than you could had you been referred to someone who is more compassionate toward his/her patient.
Supplemental Job Displacement Benefits (for injuries occuring in 2004 or later). You may be eligible for Vouchers to assist with the payment of retraining or enhancing your skills. Receipt of vouchers is dependent on whether the claims administrator provided you with a timely notice and whether your employer has agreed to provide you with a permanent modified or alternate position with certain requirements attached to it. We will review your notices to determine whether they were timely and proper and advise you accordingly.
Death Benefits. If you die as a result of a job injury or illness, payments are available to your spouse, dependent children and other dependents (such as your parents who depend on you for income). We once represented the elderly parents of a worker who died of a heart attack while he was working on the first day of his new job. As you can imagine, the insurance company denied liability. Upon interviewing witnesses, we successfully argued that the deceased worker suffered a heart attack due to the strenuous nature of his work combined with the extreme conditions of the desert where he was working. We also proved that our client’s mother and father were his only relatives and that they relied upon him as their sole source of support. The family was paid in full.
Q. My injury was caused by an unsafe work condition. Can I sue my employer in court for my pain and suffering?
A. As part of the bargain struck between labor and employers long ago, employees gave up the right to sue their employers for negligence. So unless there was an intentional act, usually your “sole and exclusive remedy” is the workers’ compensation system, which does not provide for pain and suffering damages. However, very often if there was a seriously unsafe work condition (or failure to train workers) that caused your injury, there likely was an OSHA violation, which provides a basis for you to obtain a “damage enhancement” in your workers’ compensation case. This could be significant as it means more benefits for you. This area of the law is complex and is highly fact based. I strongly recommend that you speak with our office before attempting to argue this on your own.
Q. What should I do if I have a job injury?
A. First, report the injury to your employer by telling your supervisor or designated person (such as a human resource manager) right away. If your injury or illness developed over time, report it as soon as you learn or believe it was caused by work.
Next, if you need emergency treatment, go to the emergency room. Your employer may tell you where to go for treatment. Tell the health care provider who treats you that your injury or illness is job-related.
Your employer is required to provide you with a Claim Form (DWC-1) which must be completed with insurance information for you within one working day after the employer learned of your injury or illness. If your employer failed to provide you with such a form, we will complete it for you and submit it on your behalf. Very often, we must amend these forms since many do not know to list all injuries and body parts affected, etc.
Q. My Claims Adjuster has not accepted liability on my case. How do I get medical treatment?
A. While a case is being “investigated” or is on “delay”, the claims administrator is required to authorize medical treatment for treatment up to $10,000. This treatment must be authorized within one working day after you submit the Claim Form to your employer. The Claims Administrator may tell you that they have 90 days from the date of their first knowledge of your injury, but knowledge is a legal question and the employer’s “first knowledge” should be imputed to the insurance carrier. This is an argument made by savvy applicant’s attorneys.
Q. How long can I continue to receive medical treatment?
A. The short answer is “for as long as it is medically necessary”. The medical treatment you receive must be evidence-based. The law currently looks to the ACOEM Guidelines (American College of Occupational and Environmental Medicine’s (ACOEM) Practice Guidelines, Second Edition) as its standard for determining whether certain treatment (and diagnostic testing) is necessary as well as to determine the frequency of such treatment, etc.
If the treatment your doctor wants to provide goes beyond what is recommended by the ACOEM guidelines, your doctor must use other evidence to show the treatment is necessary and will be effective.
Q. How does the Claims Administrator decide if I need treatment?
A. A Claims Administrator may use a Utilization Review (UR) company to make this determination for them. All Claims Administrators are required by law to have a UR program. But they are not required to use it to authorize treatment. They must, however, use it to deny treatment. Thus, as you can imagine, they very seldom choose not to use it. And, as you can imagine, the UR companies tend to deny more than they tend to approve. However, as a result of this, there have been court decisions that have ruled that the Claims Administrators must strictly comply with the UR deadlines, and if they do not, the treatment must be authorized. We keep track of these deadlines and ensure that if they carrier blows them, your treatment will be provided and paid for. There is also an appeal process that your doctor may engage in, which in some (but not many) cases, proves useful as well.
Q: If UR denies my doctor’s treatment request, can I still get the treatment?
A: Even after a UR denial, you may still object to the denial and request a Panel of 3 doctors called Qualified Medical Examiners (QME’s). This procedure changes slightly if you are represented by counsel; however, the basic approach remains the same. Choosing the best QME from the panel will be crucial to your outcome. We perform this procedure for our clients.
Q. If the Claims Administrator refuses to pay my doctor for treatment that I receive, will I be responsible for it?
A. No. We will make sure that the carrier pays, adjusts or litigates any and all medical bills incurred in connection with your work related injury.
Q. What is Medical Provider Network?
A. A Medical Provider Network (MPN) is a group of health care providers set up by your employer’s insurance company and approved by DWC’s administrative director to treat workers injured on the job. Each MPN includes doctors specializing in different fields of medicine.
Q. What if I don’t like any of the doctor’s within my employer’s MPN?
A. This has been an area of litigation over the last couple of years and several cases have emerged which provide a basis to escape the MPN and take medical control over your case. This area is highly fact driven and requires us to ask you questions in order to determine whether or not you have a strong basis for treating outside your MPN. We perform this analysis on 90% of our cases.
Q. What if I disagree with my MPN doctor’s diagnosis or treatment plan?
A. You can change to another physician on the MPN list or escape the MPN if you have the facts to do so. You can also ask for a 2nd and 3rd opinion from a different MPN doctor.
Q. Who decides whether or not I can return to work on modified duty while I am recovering?
A. Your Primary Treating Physician (PTP) is required to provide your work status in each of his/her progress reports to the Claims Administrator every 45 days. You must communicate your work status to your employer so that it knows whether or not to attempt to provide you with a modified position.
Q. What if either the Claims Administrator disputes my doctor’s treatment plan or other medical issues?
A. Disputes may involve things such as: (a) Whether or not your injury was caused by your work; (b) whether or not you need certain types of treatment; (c) your temporary or permanent disability status; (d) your permanent disability rating; (e) your need for future medical treatment, etc.
The Claims Administrator is under certain time deadlines to “object” to your doctor’s opinions. If you are represented by us (or another applicant’s attorney), you may agree to a neutral doctor whose opinions are agreed to. That doctor is called an Agreed Medical Examiner (AME). This doctor will examine you and write a report providing his/her opinion as to the issues in dispute. If no agreement is made, then certain other deadlines follow and a Panel is requested. We make every effort to be the side that requests the Panel first for strategic reasons.
Following the issuance of the panel, the parties strike names under further deadlines. When one name is remaining from the three, that person becomes the QME to perform the examination and issue the report. Upon receipt of either the AME or the QME report, the parties may be able to resolve the issues. If they cannot, we will file for a hearing on your behalf and go to the Workers’ Compensation Appeals Board where the issue may be resolved.
Q. My case has not been accepted by the insurance company. How can I get money to survive while I’m off of work?
A. You may apply for State Disability Insurance (SDI), unemployment insurance, and Social Security Disability Insurance (SSDI) payments. Also, benefits offered by employers and unions, such as sick leave, group health insurance, long term disability (LTD) and salary continuation plans may exist as well. In fact, given the 104 week cap on most injuries, you should apply for SDI benefits through your doctor’s office immediately to preserve your right to appeal should they be denied while you are TTD on the 105th week.
Q. Are Temporary Disability benefits taxable?
A. No. You don’t pay federal, state or local income tax on TD benefits. Also you don’t pay Social Security, taxes, union dues or retirement fund contributions.
Q. Can my first temporary disability payment be delayed?
A. Sometimes. If the Claims Administrator cannot determine whether your injury is covered by workers’ compensation, he or she may delay your first TTD payment while investigating. A delay is usually not longer than 90 days. If there is a delay, the Claims Administrator must send you a delay letter. It must explain why you will not receive payments, what additional information the claim administrator needs and when a decision will be made. If there are further delays, the Claims Administrator must send you additional delay letters.
If the Claims Administrator fails to send you a letter denying your claim within 90 days after you filed the claim form, your claim is presumed accepted.
Q: How is my case finally resolved? Generally, there are two ways of settling a workers’ compensation case:
A:
(1) By Stipulation with Request for Award (Stip). Under this method of settling your case, an agreement is made as to your percentage of disability and its corresponding dollar value. Payments are then made to you bi-weekly until the stipulated (agreed upon) amount is used up. The benefit of settling in this manner is that you maintain your right to future medical treatment in regard to the injuries you have sustained and, should you get worse or require temporary disability status again in the future, you may file a Petition for New and Further Disability within 5 years from your date of injury.
(2) By Compromise and Release (C&R). Under this method of settling, you receive one lump sum payment which exceeds the sum of all the payments you would otherwise receive in the Stipulation method of settling. However, you receive a lump sum payment and become responsible for paying for your future medical care.
If you are unable to settle your case and you go to trial, you will receive a findings & award (F&A). This is a written decision by a workers’ compensation administrative law judge regarding your case, including payments and future care that must be provided to you. The F&A becomes a final order unless it is timely appealed. Like the Stipulation, the F&A requires the insurance carrier to provide you with payments up to the amount of your disability as determined by the judge.
Q. Is the claims administrator required to pay a penalty for delays in PD payments?
A. Yes. Like your TTD payments, if the Claims Administrator sends a payment late, you are entitled to a 10% penalty.
Q: What are your attorney fees?
A: In Workers’ Compensation and personal injury matters, we charge a contingency fee, which means that there is no fee unless we obtain a recovery for you. Then, we take a percentage of the recovery, which typically ranges from 15% to 18% of the permanent disability award or settlement (and litigated TTD benefits) in a Workers’ Compensation case to an average of 33.3% to 40% of the settlement, award or judgment in a personal injury matter.