REPORTING THE INJURY, MEDICAL TREATMENT, AND TEMPORARY DISABILITY (TD)
A. Report the injury to your employer immediately. Your employer is required to provide you with a state approved Claim Form to use when filing for workers’ compensation benefits. You complete the top half of the Claim Form and your employer completes the bottom portion. You are to be given a copy of the fully completed Claim Form. If your employer fails to give you a Claim Form, within 24 hours of knowing you were injured, then you should call the workers’ compensation insurance company of your employer and immediately report your injury to them. You should, also, seek legal counsel. Failing to timely file a Claim Form can jeopardize your right to receive workers’ compensation benefits, including medical care for your injury.
Once your injury is reported, your employer, or their workers’ compensation insurance carrier, will tell you whether they have a “network” of physicians that you must see for work-related injuries and provide you with a list of available doctors. If your employer does not have a network of physicians in place, the employer has the right to tell you where to get medical assistance for the first 30 days of the claim, after which you may choose your own doctor. We expect that most employers and insurance companies will have set up a network of physicians (called a Medical Provider Network (MPN)).
Choosing which doctor is going to treat your injury is a crucial step, in your workers’ compensation claim. Please see the Why Legal Representation is Important section of this web site, found on our Home Page.
Q. If I get injured on the job, how do I get medical treatment?
A. Effective April 19, 2004, the law requires the employer to authorize medical treatment for workers’ compensation injuries within one working day after an employee files a Claim Form. Medical treatment will be provided until the claim is accepted or rejected. Until the date the claim is accepted or rejected, liability for medical treatment shall be limited to $10,000.00. Of course, if it is an emergency, seek medical care immediately.
Choosing your treating physician is crucial to receiving the appropriate benefits, including the appropriate medical care, under the California workers’ compensation laws. It is imperative the injured worker select a treating doctor who has the best interests of the injured worker as the doctor’s number one priority. Unfortunately, many doctors put the interest of the employer’s insurance/adjusting company (the people paying the doctor) ahead of the interest of what is best for the injured worker. Our law firm is very familiar with most of the doctors in the southern California area, who practice industrial medicine. Thus, we can help you in the selection of your treating doctor(s). Please refer to the Why Legal Representation is Important section of this web site (on our Home Page) for further information on why choosing whom your treating doctor is, is critical to receiving the appropriate workers’ compensation benefits.
A. Temporary disability (TTD) benefits are payments you receive from the insurance/adjusting company of your employer, if your doctor places you on temporary total disability status. You may, also, be eligible for TTD benefits if the doctor imposes work restrictions on you but your employer is unable to accommodate your work restrictions, by offering you a modified or alternative job.
Temporary disability (TD) is paid at a weekly rate during the time the doctor indicates the injured worker is unable to work, due to the industrial injury, and there is still a chance of improving the condition with medical treatment. The TD compensation rate is two-thirds (66%) of the employee’s gross earnings, up to the maximum amounts set by law. Since 2003, the maximum temporary disability rate has steadily risen.
For injuries occurring on or after January 1, 2014, the minimum TTD date will increase to $161.19 per week. The maximum TTD rate will increase to $1,074.64 per week.
For injuries occurring in 2013, the maximum TTD rate is $1,066.72 per week.
The current maximum temporary disability weekly rate, for injuries occurring on or after 01/01/2012, is $1,010.50 per week. For injuries on or after 01/01/2011 and 1/01/2010, is $986.69; For injuries occurring on or after 1/1/2009, the weekly maximum TTD rate is $958.01. The maximum for injuries occurring on or after 1/1/2008 is $916.33. The maximum TD rate for injuries occurring in 2007 is $881.66. For injuries that occurred on or after 1/1/06, the maximum TD rate is $840.00 per week. Please note that there is, also, a minimum TTD. The minimum TTD rate for 2012 injuries is $151.57 per week.
Some employers have plans that pay either all your wages, or more than the usual 2/3 of your wages, for all or part of the time your are temporarily disabled. These plans are often called Salary Continuation. There are different types of salary continuation plans. We will check with your employer and/or their insurance/adjusting company to see if you are entitled to salary continuation, in lieu of the usual TD payments.
It usually takes about two weeks from the date of injury before the first payment is made. Temporary disability is not payable for the first three days of disability unless you are hospitalized or you are disabled for more than fourteen days. Once your claim has been accepted, payments should begin within 14 days. For most injuries occurring on or after 4/19/2004 through 12/31/2007, aggregate temporary disability payments will not extend for more than 104 compensable weeks within a period of two years from the date the workers’ compensation insurance carrier/adjusting company commenced payment of TD. In other words, once the first payment of temporary disability benefits is made, no additional payments can be made beyond two years from that first payment. However, due to a recent change in the law, employees injured on or after January 1, 2008 will be eligible to receive the 104 weeks of temporary disability payments within a five-year period. The five-year period is counted from the date of injury. If the temporary disability benefits from the workers’ compensation insurance carrier/adjusting company cease and you are still disabled, it may be possible to receive state disability benefits, from the Employment Development Department (EDD). Please contact our law firm for more information.
A. If for some reason (e.g. your claim is delayed or denied by the insurance/adjusting company of your employer) the insurance company will not pay temporary disability, it is often possible to receive disability payments from the Employment Development Department (EDD). These are called SDI (State Disability Insurance) benefits. SDI benefits are often paid at the same, or similar, rate to what you would receive under the workers’ compensation laws. Please note, an injured worker cannot receive benefits from both the workers’ compensation carrier and from the Employment Development Department simultaneously. Please contact us for more information.
Q. How can I be eligible for permanent disability compensation?A. An injured worker may be entitled to receive a permanent disability award if the injury leaves him/her with any residual disability or permanent impairment. Permanent disability indemnity is not payable until the medical condition becomes “permanent and stationary” (aka “maximum medical improvement”), which means the doctor has stated the medical condition has leveled off and will stay substantially the same in the future. “Permanent & Stationary” or “Maximum Medical Improvement (MMI)” does not necessarily mean that the person has recovered from their injury(ies). In fact, if the doctor indicates the injured worker has had a total recovery, there would be no permanent disability/impairment award. Otherwise, the information in the doctor’s final report will be put into a formula to determine your percentage of disability. Permanent disability is expressed as a percentage, after the doctor’s report has been “rated.”
Again, often times the doctor your employer (or your employer’s insurance/adjusting company) sends you to will indicate a lower percentage of disability than a doctor you or your attorney choose. This is because a doctor selected by your employer, or your employer’s workers’ compensation insurance company, is often times more loyal to the entity that is referring them patients than they are to the injured worker.
Q. What is Whole Person Impairment and how is it relevant to my workers’ comp. claim?A. For almost all work related injuries that occur on or after 1/1/2005,and even for some injuries occurring prior to 1/1/2005, the system of measuring permanent disability has changed. Instead of determining whether an injured worker has permanent disability, the physicians must determine what is now known as “Permanent Impairment.” The residual disability of an industrial injury is now expressed in a new measurement called Whole Person Impairment (WPI), utilizing the American Medical Association Guides. Adjustment is made for your loss of future earning capacity (FEC), based upon the same or similar injuries, which is then expressed in a mathematical formula, depending upon the region or part of body injured. This rating is then adjusted for your age at the date of the injury and for your occupation. Again, the same injury can receive different impairment ratings, depending upon who the doctor is who is assigning the rating (your doctor or the company doctor).
Q. Why are Agreed Medical Examiners (AME) and Panel QMEs used?
A. Agreed Medical Examiners (AME) are like “medical judges.” The injured worker’s attorney and the insurance company often disagree with what the treating doctor states the injured worker’s level of permanent disability/impairment is or on the type of current or future medical care an injured worker requires. Therefore, the parties often agree to utilize an Agreed Medical Examiner to review all the medical reporting and medical records and perform a one-time examination of the injured worker. The AME will then provide his/her medical opinions on permanent disability/impairment, the current and future need for medical treatment, as well as providing an expert opinion on other medical-legal issues.
There are many benefits to using an AME. One benefit is that relying upon one particular doctor, that both parties agree is neutral and well versed in the complicated California workers’ compensation system, to address the main issues in the claim, eliminates the problem of attempting settlement based upon two medical opinions that are often in disagreement, or proceeding to a random doctor that the parties do not know or trust.
For injuries occurring on or after 1/01/2005, an AME or a Panel Qualified Medical Examiner (“Panel QME”) is almost always utilized. A “Panel QME” is a physician provided randomly by the Industrial Medical Counsel to act as a “medical judge.” Thus, the key difference between an AME and a PQME is that the parties do not agree on the specific Panel QME physician. With an AME, the parties agree on the particular doctor. The disadvantage of being evaluated by a Panel QME doctor is that the injured worker’s attorney and the claims examiner for the insurance/adjusting company have little or no control on which doctor is chosen. This randomly chosen doctor may not understand the many nuances in California’s complex workers’ compensation laws. Furthermore, the Panel QME may not be a truly neutral medical evaluator — which often times works to the injured workers detriment.
It should be noted that if either party disagrees with the findings of the AME or State Panel QME, the doctor’s deposition may be taken, in an attempt to change/alter his/her medical findings.
Q. What is the process involved in settling a case and how is it determined how much compensation I will receive?
A. Generally, a case cannot be settled until all of the medical reports articulating permanent disability or impairment are completed. The report may also be formally “rated,” by the Disability Evaluation Unit (DEU) of the Workers’ Compensation Appeals Board and a percentage of disability or permanent impairment will be assigned to the doctor’s opinions in accordance with the rating guidelines of the State of California. These rating guidelines are pre-set and uniform throughout the state. However, in practice, it is not unusual for the same medical report to be rated differently, depending on who rates it. The “rating” percentage is then converted to a monetary amount, also, in accordance with a pre-set schedule. This combined with the valuation of future medical treatment and other issues provides the basis for a lump sum Compromise and Release settlement agreement. However, neither the defendant, nor the applicant, must settle the case by Compromise and Release. Instead there may be a settlement by Stipulations With Request for Award, in which a permanent disability/impairment percentage is stipulated to and future medical care for the injured workers is often left open. Whether a settlement is by Compromise and Release or by Stipulations With Request for Award, it is always best to consult a knowledgeable, skilled, and experienced workers’ compensation attorney, who has your best interest at heart, before accepting any settlement offered by an insurance company/adjusting company.
15% RULE (Labor Code Section 4658(d))
For injuries occurring on or after 1/1/2005, your permanent disability rate may be increased or decreased by 15%, depending on if you are offered a regular or a permanent alternative job, with your employer. Please note this “15% Rule” only applies to employers with at least 50 employees.
Q. How do I qualify for vocational rehabilitation?
A.If the doctor indicates that due to the injury the employee will not be able to return to his or her usual occupation/job at the time of the injury, the injured worker may be entitled to vocational rehabilitation benefits. The laws have changed in recent years, so please contact our office to see if you are eligible for these benefits.
Q. What is included as part of a rehabilitation program?
A. Again, the law has changed in regard to vocational rehabilitation benefits. Thus, it is essential you contact our law firm. If your injury occurred prior to 1/1/2004, a vocational rehabilitation program includes services which are reasonably necessary to return you to suitable gainful employment. A rehabilitation counselor will be assigned and the counselor will assist in the preparation of the program, taking into consideration the injury, past working experience, transferable skills, motivation and labor market. While actively engaged in the rehabilitation program, the injured worker will continue to receive either temporary disability benefits or a rehabilitation maintenance allowance, depending on the date of injury. For injuries occurring after 1/1/2004, there is a vocational rehabilitation “voucher.” Please contact our law firm for further information.
Q. How does the court system work in the case of an injured worker?
A. The Workers’ Compensation Appeals Board is the trial court for all industrial injuries. A workers’ compensation case is an administrative law proceeding. Thus, while there is an administrative law judge there are no juries in the workers’ compensation system. A workers’ compensation judge makes all of the decisions if your case goes to trial. The decision of the workers’ compensation judge may be appealed by filing a Petition for Reconsideration to the full Workers’ Compensation Appeals Board, in San Francisco. If the Petition for Reconsideration is denied and/or a party still feels aggrieved by the Workers’ Compensation Appeals Board decision, the party may file a writ seeking judicial review from the California Court of Appeal.
Although workers compensation benefits are generally the “exclusive remedy” for injured workers, an exception exists if you are injured as a result of the fault of someone who is not employed by your employer. In other words, if you are injured at your job as a result of a “third party,” you may be able to sue that person in Civil Court, in addition to proceeding with your workers’ compensation claim. Please contact our law firm for further information.
A. Attorneys’ fees are awarded by the Workers’ Compensation Appeals Board Judge. Judges usually award attorneys fees in the range of 12% to 15% of your Stipulated Award or Compromise and Release settlement. If there is no recovery on a case, an attorneys fee will not be awarded.
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