Workers’ Compensation

What is Workers’ Compensation?

Workers’ Compensation is a very limited and specialized compensation system intended to provide protection with monetary and medical benefits to employees injured within the course and scope of their employment. An injury can occur from an accident, injury/altercation, occupational disease, while working.

Workers’ Compensation in California is a “No Fault” system in which neither the fault of the employee or employer is considered before benefits are paid. Thus, negligence or intentional wrong doing are generally irrelevant as to whether you receive workers’ compensation. This system is intended to benefit both the employee and employer. The employee can receive a monetary settlement and medical benefits in exchange for waiving the common law right to sue the employer. Likewise, the employer can benefit by receiving immunity from court actions against them by the employee in exchange for accepting liability that is limited and determined. As the California workers’ compensation system is “No Fault,” there are no trials by jury and settlements/recovery are limited. You do not receive “Pain and Suffering” damages in the workers’ compensation system.

Common Injuries

Common injuries that can lead to filing a workers’ compensation case are:

1) Orthopedic (back, neck, arm, leg, etc.),

2) Internal Medicine (gastrointestinal, IBS, high blood pressure, etc).,

3) Psychiatric/Stress (sleeplessness, sexual dysfunction, head trauma, etc.)

What to do if you are injured

An employee who gets injured at work, should definitely go see a doctor. This can rule out if there is an injury or not as well as have the incident documented. Upon completion of seeing a doctor, you should document all the actions and proceedings that take place and file an injury report claim with your employer. Your next step would then be to contact a workers’ compensation attorney for further instruction.

Why you should consult a Workers’ Compensation attorney

It can be very difficult to handle a Workers’ Compensation case on your own. Dealing with highly trained adjustors/attorneys working for the defense hiring a qualified attorney is extremely beneficial to your case. A good Workers’ Compensation lawyer is important as it will help to protect your rights.

Listed below are reasons as to why a lawyer may be critical in any of the following situations:

  • The employer denies you were injured on the job and rejects your claim
  • The carrier has denied monetary or health benefits
  • You cannot receive medical treatment
  • You are not getting paid disability benefits
  • The adjustor promises (monetary/health) benefits or care which you never receive
  • Defense (adjuster/attorney) communications and the scheduling of your deposition

These are just a few situations which you should consider when thinking of not hiring an attorney. During the workers’ compensation process, the more problems you are faced with, the more you probably need to hire an attorney for representation.

Most Workers’ Compensation attorneys work on a contingency basis. That is, if they do not get you money, they do not charge you. In addition, in many situations, the employer/carrier may have to pay any fee or costs.

Frequently asked Questions:

Q – If I have to go to the doctor’s office or miss any time from my job due to my Workers’ Compensation injury, will I still be paid?

A – Yes. An applicant is entitled to receive disability benefits if they are claimed to be temporarily disabled from their job by the approved primary treating physician and/or medical arbitrator.

Q – What type of benefit do I receive if I am injured?

A – There are four primary benefits that you may receive if you are injured while on the job: 1) Medical treatment 2) Temporary Disability Benefits 3) Permanent Disability Benefits, 4) Job Displacement Voucher (if applicable)

Q – What are temporary disability benefits?

A - As a result of the legislative changes in 2004, there is now a two year limit on temporary disability and such payments are not payable more than two years from the date of first payment.

The amount of compensation you receive while temporarily disabled depends on whom you work for and your actual average weekly earnings. In general, the following guidelines apply:

Private Sector employees:

Any employee working in a private sector shall receive 2/3 of their average weekly earnings up to a maximum of $986.69 per week for injuries occurring on or after January 1, 2010. This compensation is normally paid by the employer’s workers’ compensation insurance carrier, and is commonly referred to as the “State Rate” of compensation. At the request of the employee, an employer may supplement this “State Rate” amount with additional compensation, such as partial salary, but is not required to do so.

Los Angeles County Employees:

Law Enforcement Employees (Sheriffs, Firefighters, etc.) — Employees of the Sheriff’s Department whose daily duties involve law enforcement activities receive full salary up to one full year, tax free, while being temporary disabled from their work-related injury. This benefit is paid pursuant to Labor Code Section 4850, and is often referred to as “4850 Benefits” or “4850 Time.”

Civilian employees — Per a County ordinance, civilian employees receive 70% of their salary up to one full year from the date of their injury, tax free. If they are still temporarily disabled beyond one full year, they will receive the maximum benefits allowed of  “state rate” temporary disability.

Los Angeles City Employees:

Law Enforcement Employees (Police and Firefighters) — LA City firefighters and police officers receive 100% of their salary for up to one full year, tax free. This is also referred to as “Injured on Duty Pay” or “IOD Pay.”

Civilians — Per the City Los Angeles Administrative Code, all civilians shall receive “Injured on Duty” (IOD) for up to one full year for each injury. Each City department has different policies governing IOD pay. At any rate, a City civilian will not receive less compensation than what he/she would have receive if they were able to work to their full capacity.

Q – If I am not able to fully recover from an injury, may I be eligible to receive any additional benefits?

A – Yes. You may be entitled to receive “Permanent Disability” compensation if you suffer any permanent residual effects from the injury. This determination of permanent disability will be based upon a review of the medical evidence, which can include your treating physician, medical arbitrator or any other physicians you have been examined by throughout your workers’ compensation case. The percentage of disability that you shall receive is based on “impairment” as defined by the American Medical Association guides for a whole person impairment (%).  This may be payable to you, even if you return to your usual and customary occupation. The actual monetary value of any settlement is computed from a disability schedule that has been adopted by the State of California.

Q – What type of medical treatment do I receive for my work-related injury?

A – When you obtain an injury while working, you are entitled to have reasonable medical treatment that is necessary to bring relief. It is paid for by the workers’ compensation insurance carrier. Medical treatment may include doctor’s consultations/visits, surgery, hospitalization, durable medical equipment, physical therapy, medications, laboratory and diagnostic testing, nursing care, psychiatric treatment, and mileage costs for travel to and from physicians, therapists, etc.

As a result of the so called reform legislation of 2003 and 2004, currently, all medical treatment is now subject to “utilization review.” Utilization review is also known as UR and allows the worker’s compensation insurance carrier, to submit the treatment requests to a doctor (3rd party) for review and consideration. This 3rd party physician will determine if the treatment is appropriate and deemed necessary. To be approved, the medical treatment must be recognized by nationally accepted guidelines approved by the Administrative Director of the Division of Workers7 Compensation and must be performed within specific set of time restraints.

Further, for all orthopedic injuries occurring on or after January 1,2004, there is a lifetime limit of 24 physical therapy and chiropractic sessions. While a claims examiner or Utilization Review may approve more therapy, there is no appeal process if they deny medical treatment beyond the limit stated above.

Q – May I select my own treating physician?

A – Effective January 1,2005, all employers/insurance carriers may create a medical provider network (MPN) to control medical treatment for your work related injury. If your employer/insurance carrier creates an MPN, you must treat within the network for a work related injury. While you may have the right to choose a doctor within the medical provider network, you do not have the right to treat outside the medical provider network unless you successfully appeal to the Administrative Director.

Q – What is the Statute of Limitations for filing a workers’ compensation case?

A – Yes. There are various statutes of limitations that apply when initially filing a Workers’ Compensation case. Any injury that requires medical treatment should be reported immediately to your employer. Your employer then in return should provide you (within 24 hours) with an “Employee Claim for Workers’ Compensation.” This form is to be filled out  (#1-8) and completed by you and returned to your employer.

If an employer denies responsibility for a work-related injury, you should consult with an attorney immediately. An attorney may file an “Application for Adjudication of Claim” with the Workers’ Compensation Appeals Board for the purposes of invoking the jurisdiction of the Workers’ Compensation Appeals Board to make a determination on your claim. The statute of limitations to file an “Application” may be one year from the date of the injury. It may possibly be 5 years from the date of injury, depending on whether liability has been accepted and if any workers’ compensation benefits have been provided. Again, the statute of limitations questions may be complex to understand, and if you have any questions a consultation with an attorney is recommended.

Q – Can my work terminate me for filing a Workers’ Compensation claim?

A- Legally, an employer may not discriminate against an employee (in any way) who files or states they are going to file a workers’ compensation claim. Labor Code Section 132(a) prohibits such action by an employer and allows for increased compensation and possible reinstatement with back benefits if the employer is found to have violated this policy. There may be instances where the employer’s acts of discrimination may not take effect in actual termination, but rather a performance by demotion or denial of a promotion, refusal to provide normal work benefits that other non-injured employees may receive or any other discriminating action. A petition for a violation of this section must be filed within one year of the act of discrimination with the Workers’ Compensation Appeals Board.

Discrimination by your employer resulting from a work-related injury may also give rise to civil actions such as claims with the California Department of Fair Housing; EEOC, Americans With Disability Act. You may wish to consult with a workers’ compensation attorney to see if you have a legitimate claim under any such statute.

Q – What if I am not able to perform my regular job duties after being injured?

A – If an employee was injured prior to 1/1/04 and he/she finds that as a result of their injury, he/she is unable to return to his/her usual and customary occupation, his/her employer is obligated to provide vocational rehabilitation services up to a maximum of $16,000.00 in costs and payments.

For an employee injured after 1/1/04, vocational rehabilitation no longer not exists. Therefore, if you are unable to return to work, you may be entitled to a “job displacement voucher” ranging from $4,000 to $10,000 which is payable to a school or training facility. This is not allowed to be cashed out as it is simply a voucher.

Q – If death were to result from my work related injury, are my dependents entitled to compensation?

A – YES. The surviving dependents (total or partial) may be entitled to any benefits that were accrued while the injured employee was alive. They may also be entitled to workers’ compensation death benefits, which include burial expenses if the death was job related. Surviving dependents should consult with an attorney regarding questions as to causation and the amount of such benefits as it varies with each case. Also, there are statute of limitations to file a death claim with the workers’ compensation appeals board and each potential case should be discussed immediately with an attorney.

Q- What should I do if my Workers’ Compensation case has been denied by the insurance carrier?

A - It is not uncommon for the insurance company to file a “Notice of Denial” stating that they are disputing your entire work-related injury claim for benefits or various portions of your claim for the requested monetary and/or health benefits. If your claim or any request for benefits has been denied, the insurer should notify you in writing and state the reasons as to why your benefits are denied. If your claim has been denied you should immediately contact a Workers’ Compensation attorney.

Q – I feel like I am being followed/videotaped, what should I do?

A – It is not uncommon for employees to be pressured by their employer, or defense’s doctor to return to work after sustaining a work related injury.  A problem can occur when the employer believes that the injured worker can perform a modified/light duty job while still recovering from the work-related injury. The ultimate decision regarding the temporary disability status will be determined by the treating doctor. Many employers feel that if the employee can sit at home and perform light chores, they can sit at a desk and answer a phone or fill out paperwork.

Resulting from the employer’s desire to return the injured workers back to work as soon as possible, many employers initiate Sub Rosa investigation to determine if the employee is performing any type of physical activity that would be inconsistent with the temporary disability status. Sub Rosa is where a private investigator can follow you around or sit outside your home and video tape you. It would be wise to check your surroundings and be aware of your actions when out in public or in plain open view.

It is critical that the injured worker be in open communication with the treating doctor regarding any physical activity being performed. For example, an employee was walking his dogs up and down his block while recovering from a knee surgery. Sub Rosa was filmed and the footage showed him participating in this activity. The employee was thereafter fired for Workers’ Compensation fraud.  During the investigation, the treating doctor indicated that if he had known that the employee could engage in walking, he would have stopped his temporary disability status and returned him to modified work.

It is important to understand the limitations/restrictions that you are placed on by your treating physician. You must act in accordance within the prescribed activities.

Be aware of what you are doing in public and what you are writing on any public forum. For example, if an employee who was unable to work due to a back injury, responded to a co-worker’s invite for their annual snowboarding trip via Facebook/Twitter this could be a very high risk. If the employer obtains this information, the injured worker could face an investigation for benefits abuse.

It is important to take the appropriate time and steps to recover from your work-related injuries as prescribed by your doctor. To insure the best possible recovery, you must protect yourself from any unnecessary investigation that might cause you harm.