 FAQ - Workers' Compensation
1. How do I get Workers' Compensation benefits?
California workers who are injured or become ill because of work have the right to receive Workers' Compensation benefits. Unfortunately, many workers find that they lose their rights, are denied the benefits that they are entitled to, or learn that they aren't getting all of their Workers' Compensation benefits.
As soon as a worker knows or suspects that they have a work related injury or illness, he or she should immediately report it to the employer. Within one day after the injury is reported, the employer must give the worker a claim form. Waiting to report an injury or illness can cause a delay or denial of Workers' Compensation benefits.
After the worker completes and turns in a claim form, if an injury causes temporary disability, the first payment of temporary disability indemnity shall be made not later than 14 days after knowledge of the injury and disability. In the case of a dispute, the employer has the right to investigate the claim. If the claim is not denied within 90 days from the date the claim is filed, the injury is presumed compensable.
The injured or ill worker should never be off of work without a written off work order from the treating doctor. It is important that the doctor advises the employer of the workers' disability status.
A claim which is not filed until the worker has been notified that they are being terminated is not valid under California law unless it can be shown that, before the notice of termination, the injury had already been reported to the employer, or that there is evidence of the injury in the employee's prior medical records.
In California, the injured or ill worker has the right to representation by an attorney. A specialist in the field of Workers' Compensation law will guide a client through the maze of statutes and regulations that control the case. Initially consulting a Workers' Compensation attorney costs nothing. If an attorney takes the case, the fee will generally be 9-15% of any settlement or award at the end of the case.
2. The insurance company is providing all benefits, should I wait to hire an attorney?
Unfortunately, many injured workers wait until it is too late, or a crisis has occurred, before they consider hiring an attorney. The injured worker should consider the following facts:
1. The insurance company's interests are not the same as those of the injured worker.
2. The Workers' Compensation system is highly complex, with many procedural requirements and time limitations.
3. The insurance company has attorneys who represent their interests regarding the extent of your Workers' Compensation benefits.
If an injured worker retains an attorney, there is no charge for the initial consultation. The attorney's fee is 9-l5% of any settlement or award at the end of the case (the fee may be higher in complex cases). If there is no settlement or award at the end of the case, there is no fee. Therefore, the fee will not be any higher if the attorney is retained at the beginning of the case.
Injured workers usually consider retaining an attorney if they feel they are at a disadvantage in dealing with the insurance company, or any time those benefits are being denied. An injured worker should also consider having an attorney when they are going to have a need for continuing or lifetime medical care, or if they are going to end up with a permanent disability.
If a worker has a permanent disability but does not have an attorney, they are required to select a doctor off of a three-doctor panel. The claim will be resolved based upon that doctor's report. Unfortunately, if the worker does not agree with this doctor's opinion, they do not then have the right to get a second medical opinion. Essentially, the injured worker is stuck with that doctor's opinion. However, if an attorney represents the injured worker, the attorney can refer the worker to any qualified medical examiner. The attorney can select a doctor who will listen to all of the symptoms of the injured worker and prepare a report for the injured worker, not the company.
If the injury was caused by the negligence of someone other than the employer or a co-employee, an injured worker should consult with an attorney as soon as possible following an injury. In that case, an injured worker may have the right to bring a Workers Compensation action in addition to a Workers' Compensation claim. There are strict time guidelines in which a claim would have to be brought. Merely because a person is continuing to receive Workers' Compensation benefits does not mean that the statute of limitations against the negligent party does not run. As a result, it is extremely important that an attorney be consulted in those types of cases.
3. Should I change treatment to a doctor of my own choice?
In most cases in California, the employer, or insurance company, has the right to control the choice of doctors for the first thirty days following an injury. Doctors selected by employers or insurance companies are often selected because the doctors are biased toward the employer. As a result, the injured worker should consider changing physicians to a doctor of their own choice.
This is especially important for all injuries occurring before January 1, 2003, since the opinion of the treating physician is presumed to be correct regarding all medical issues. The treating physician is required to give an opinion on the following issues
1. The type, length and amount of medical treatment needed.
2. The ability of the injured worker to return to work.
3. The degree of any permanent disability suffered by the injured worker, which determines the amount of any settlement or award.
4. The ability to permanently return to the pre-injury occupation, which determines the need for vocational rehabilitation.
As a result, it is important that an injured worker exercise the right to change treatment to a doctor who can report on behalf of the injured worker rather than the insurance company. If the injured worker does not know a suitable free choice physician, a Workers' Compensation attorney should be consulted for a list of suitable physicians in the appropriate medical specialty.
4. How long will the employer be responsible for my medical treatment?
There is no time limitation on the provision of medical treatment. The employer or their insurance company is required to pay for all of the medical treatment that is reasonably necessary to cure or relieve from the effects of the industrial injury. This treatment is required to be continued for as long as it is medically necessary. This can be for months, years, or even for the rest of the injured workers' life.
The treating physician's opinion regarding the ongoing need for medical care is presumed correct for injuries before January 1, 2003. Therefore, it is extremely important that a physician who will be reporting for the injured worker rather than for the employer treat the injured worker. If the injured worker does not know a suitable free choice physician, a Workers' Compensation attorney should be consulted for a list of suitable physicians in the appropriate medical specialty.
5. I received a list of three doctors, should I select one?
Beware of three-doctor panels! When a worker who was injured after January l, l994 is released by a treating doctor, the worker has the right to a medical evaluation to determine the amount of his or her award or settlement. However, if the worker does not have an attorney, he or she is required to select a doctor from a three-doctor panel. Unfortunately, the law changed in l994 to preclude an injured worker from getting a second opinion if they disagree with the opinion of the doctor from the three-doctor panel. If the panel doctor says that there is very little wrong with the injured worker, and that the worker does not need future medical care, the injured worker does not have the right to hire an attorney in order to obtain a second medical opinion, as workers injured before l994 could. Essentially, the injured worker is stuck with that doctor's opinion.
On the other hand, a worker who hires an attorney can be sent to any Qualified Medical Examiner. The attorney can select a doctor who will listen to all of the symptoms of the injured worker and prepare a report for the injured worker, not the company.
As a result of this change in the law, injured workers may want to consider hiring an attorney if they have a permanent disability, instead of playing "Russian roulette" with the three-doctor panel.
6. Can my employer terminate me while I am out on disability?
The law in California states that it is illegal to terminate or in any manner discriminate against a worker as a result of their industrial injury. If such conduct occurs, the employee may have their compensation increased by one half up to a maximum of $l0, 000.00, plus costs up to $250.00, reinstatement on the job, and reimbursement for lost wages and work benefits.
Proceedings under Labor Code Section l32 (a) for these benefits must be instituted by filing the appropriate petition with the Workers' Compensation Appeals Board within one year from the date of the discriminatory act or the date of the employee's termination. Failure to file the appropriate petition with the Workers' Compensation Appeals Board within the proper time period will most likely prevent an injured worker from pursuing such a claim. Not every act by an employer is found to violate Labor Code Section 132(a). There are several exceptions in which the employer's actions against the employee are not found to violate the law. For example, it has been found discriminatory if the employer's conduct was necessitated by the realities of doing business.
The issue of whether an employer's actions constitute a violation of Labor Code 132(a) is a highly complex and technical legal issue. Therefore, if an injured worker believes that he or she has been wrongfully terminated or discriminated against, they should consult with an attorney to be advised as to whether sufficient facts and evidence exists to successfully pursue such a claim.
7. What happens if my doctor releases me to light work, but my employer refuses to offer light work?
Often a treating physician will release an employee to limited work restrictions before the healing period is over. If the employer does not provide work within the doctor's restrictions, the worker is considered to be temporarily disabled from their usual and customary occupation and disability payments will continue.
If the worker returns to modified work, but at less hours, or less pay than prior to the work injury, the worker may be entitled to temporary partial indemnity on a wage loss basis in addition to the workers' earnings during this period.
If the partially disabled employee refuses an offer of modified work, the refusal may be the basis for terminating payments of temporary disability indemnity.
If the doctor releases the injured worker to modified work on a permanent basis, then the employer must either provide work within the restrictions, or provide vocational rehabilitation benefits to assist the injured worker in finding other work in the labor market.
8. What types of settlement are available?
There are two ways to resolve a Workers' Compensation case.
The first type of settlement is called an Award. The Award differs from other types of legal settlements in that the insurance company may continue to be responsible for lifetime medical care to cure or relieve from the effects of the industrial injury. Therefore, injured workers who will need a significant amount of future medical care, and are concerned as to who will be responsible for the medical bills favor this form of settlement. In addition, the injured worker is entitled to a monetary award for any permanent disability he or she may have. The monetary award is payable weekly over a period of time. The greater the degrees of disability, the longer the payments continue.
The second way to resolve a case is called a Compromise and Release. In this form of settlement, the injured worker receives a lump sum of money, but the case is over for good, and the injured worker is not entitled to any future medical care. There can only be a Compromise and Release if both the injured worker and the employer, or insurance company, agree to settle for a specified amount. If there is no agreement, then the injured worker is entitled to an award. In an award, the injured worker has the right to reopen the case for new and further disability within five years from the date of the award.
An experienced Workers' Compensation attorney can advise an injured worker as to which form of settlement is appropriate under the circumstances. In the case of an Award, the attorney works to make certain that the injured workers' access to appropriate future medical treatment is preserved, as well as obtaining a monetary award. In the case of a Compromise and Release, the attorney negotiates the highest settlement amount possible.
9. What is the amount of the attorney's fees in a Workers' Compensation claim?
There is no charge for the initial consultation in a Workers' Compensation claim. Attorney's fees are payable on a "contingency basis." This means that if there is no recovery, there is no fee. The attorney receives a percentage of the settlement or award. If a person chooses to be represented by an attorney, the attorney's fees will be deducted from the settlement at the end. Attorney's fees normally range from 9-15% of the benefits awarded. The actual amount of the attorney's fee will depend upon the complexity of the case. In complex cases, the fee may be higher. The fee has to be approved by the Workers' Compensation Appeals Board.
If the attorney also represents the worker before the vocational rehabilitation unit, there may also be a fee in connection with this representation. In that case, the employer or insurance company generally withholds l2-l5% of the vocational rehabilitation maintenance benefit as attorney's fees. At the conclusion of the rehabilitation process, the Workers' Compensation Appeals Board judge determines whether the attorney receives all, part, or none of the monies withheld.
There are no other fees or costs charged. If the injured worker makes a complete recovery, and receives no settlement or award, there is no charge for the attorney's services.
10. My doctor has declared my condition to be permanent and stationary. What does this mean?
The phrase "permanent and stationary" is a legal term, which means that the disability has reached the point of maximum healing. Disability reaches this state when change is not reasonably anticipated under usual medical standards. However, a condition may be permanent and stationary even when further deterioration is anticipated. Reaching a permanent and stationary status does not end the right to receive medical care.
When the treating physician determines that an injury has become permanent and stationary, the doctor is required to give an opinion regarding the following additional issues:
1. What medical treatment will be reasonably required in the future?
2. Can the injured employee return to his or her previous occupation?
3. What permanent work restrictions, if any, have resulted from the industrial injury?
Depending upon the answers to the above questions, the injured worker may then be entitled to an award of compensation for permanent disability, an award of future medical treatment, as well as the possibility of a vocational rehabilitation program to assist in returning to the open labor market.
11. Is the injured worker restricted to one change of doctor?
No. There has been a general misunderstanding that an injured worker only has the right to one free choice of physician. That is incorrect. The Court of Appeal ruled in September 1995, in the case of Ralph's Grocery Company vs. WCAB (Lara) that after 30 days from the date of injury, the injured worker can have many changes of physicians, limited only by reasonableness.
For the first 30 days after an injury, the employer usually controls who will be the treating physician. The confusion arose from Labor Code Section 4601, which allows the injured worker one change of physician during the first 30 days after the injury. However, the injured worker has the additional right to change physicians in Labor Code Section 4600. This statute does not limit the right to change his or her treating doctor on more than one occasion.
The Court of Appeal confirmed that while the injured worker can only change doctors once in the first 30 days, they are not restricted as to the number of changes after 30 days. The employer or insurance carrier does not have the right to unilaterally deny the request to change a physician. The Court of Appeals in the Ralph's case upheld a substantial monetary penalty against the employer for unreasonably refusing a second change of doctor. The court stated that the employer's remedy, if they believe the requested change is unreasonable, is to allow the change, and then petition the Administrative Director of the Division of Workers' Compensation to regain control or to request a hearing before the Workers' Compensation Appeals Board.
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CHAIN, YOUNGER, COHN & STILES
1430 Truxtun Avenue
Bakersfield, CA 93301-5220
Tel: 661-323-4000
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