NEW CLIENT INFO
NEW CLIENT WORKERS’ COMPENSATION INFORMATION
Thank you for considering the Law Office of Robert E. Wood to handle your workers’ compensation claim. I am providing this workers’ compensation information to you for your reference during all phases of the case, as workers’ compensation law is extremely complicated and interrelates with other areas of law. Moreover, the provisions of workers’ compensation law are not always fair or adequate. By understanding the information I am providing to you here, I believe it will help you understand the workers’ compensation process during the course of your case. Please review the information as questions arise and contact our office for clarification and assistance.
CALIFORNIA WORKERS’ COMPENSATION LAW
Unfortunately, as a workers’ compensation practitioner I am required to handle very large caseloads and as a result, I am not able to respond immediately to every call. I do have a very competent support staff and if you need some information about your case, usually my staff can give you that information. If you need to speak with me, I will be happy to speak with you when I am available or you can arrange a meeting in person or telephone conference. However, you must be patient for the call back as I am very often in court, in depositions, or in meetings with clients.
Excellent ways to communicate with me are by mail or by setting a phone appointment so I can respond to your questions.
California workers’ compensation law covers not only specific but cumulative trauma injuries and occupational diseases. A specific injury occurs in one definable moment. Cumulative trauma occurs when a worker is exposed to harmful activity or exposure over a period of time, finally resulting in a workers’ disability. Examples include repetitive injuries, or exposure to a harmful substance over a period of time, or even repetitive stress. Injuries in California are determined without regard to fault, whether they are attributed to the employer or th employee. However, it is essential that the worker show a connection between the work and the disability claimed.
It is essential that an injury arise out of and occur in the course and scope of employment. In workers’ compensation law this is commonly referred to as AOE/COE. Some types of injuries are specifically excluded from workers’ compensation coverage, such as injuries that are caused by the intoxication of the injured worker or injuries that occur within the normal commute.
California law provides a mandatory no-fault system for determining employer liability for on-the-job injuries. Workers’ compensation law does not provide for pain and suffering or lost of wages as part of the damages that can be recovered.
Except in very limited circumstances, workers’ compensation law provides the only remedy for an injured worker against his or her employer for an industrial injury. Liability is to be determined without fault; benefits are to be provided regardless of negligence of either the employer or the employee. Under the California system, an employee generally has no tort or civil remedy against his or her employer.
The injured worker may have an additional claim outside of workers’ compensation law if the injury is caused by negligent acts of a “third party”. A third party is someone who is not your employer or another employee. Examples include a carpenter who is injured on a construction site because of negligence of a plumbing subcontractor, or a worker who is injured during the of employment when his/her vehicle is struck by an automobile driven by someone other than the employer, or a worker is injured because of a defective piece of machinery manufacture by someone other than the employer. Exceptions may also include a civil case if the employer does not carry workers’ compensation insurance, or if the employer commits an assault or otherwise intentional act against the employee. If you believe these exceptions to be an issue in your case, please let us know immediately.
Unless specifically agreed upon in writing, the Law Office of Robert E. Wood will not be representing you in any third party or civil action arising out of your industrial injuries. This is because I am a workers’ compensation attorney and these civil claims are outside of our area of my expertise. If appropriate, and with your consent I may refer you to other attorneys who handle civil liability claims in some circumstances. If I do so, I will do so in writing. If the civil liability attorney or personal injury attorney agrees to accept your case upon my referral, I will work with that attorney to make sure that the workers’ compensation case is coordinated, to the best of our ability, with the civil case that the lawyer we referred you to is handling. If I refer you to a civil attorney for handling a case connected with your workers’ compensation case, I may share in that attorney’s fees obtained in your case. This is called referral fee. Under no circumstances would a referral fee paid by the civil attorney to our office increase the overall fee charged by the attorney to you.
If I do not refer you to a civil attorney in writing for handling of a third party case arising from your industrial injury, you certainly have the option of consulting other attorneys. In fact, if I make a referral to a third party attorney, you are not obligated to retain that attorney but have the right, of course, to obtain your own counsel on that issue. Again, however, because my expertise is in workers’ compensation case only, unless otherwise agreed with you in writing. Statues of limitation (which pertain to when a claim or lawsuit any be filed) do apply to these cases and you should feel free to consult a civil attorney of your choice if you feel you have a civil claim.
Under the California workers’ compensation laws, if a worker is successful in showing that either specific and/or cumulative injury or occupational disease has occurred, the worker may entitled to some or all of the four workers’ compensation benefits. They are as follows:
1. Temporary Disability
Temporary disability is paid at two-thirds of your salary up to maximum of $958.00 per week as of 2008 with cost of living adjustments. Please again note that the temporary disability rate is two-thirds of your salary up to stated maximum. Unfortunately, the injured worker does not get the maximum simply because he or she is disabled. The determining factors include the injured workers’ average weekly wage and date of injury.
Temporary disability is paid until the injured worker either reaches a “permanent and stationary” (P&S) status or the worker returns to work. However, except in rare instances, temporary disability cannot be paid for more than 104 weeks for any injury after April 19, 2004. Permanent and stationary is defined in workers’ compensation law as the point of maximum medical improvement, when the worker is expected neither to get better nor worse. Permanent and stationary status is often a point of serious dispute in workers’ compensation cases and workers’ compensation insurance carriers typically like to have this “moment” occur rather quickly. This is because temporary payments are the highest payments within the workers’ compensation system, and when temporary disability ends, payments are reduces. Temporary disability can also end worker is released to return to work. Again, temporary disability payments are usually limited to two years total for each date of injury after April 19, 2004.
The 104 week time limitation is most unfair in my opinion, but this limitation is a result of workers’ compensation “reforms” which in most cases have resulted in workers receiving reduced benefits. Consequently, I also advise that client’s file for Social Security Disability and/or State Disability as early as possible to defray such cuts.
Once permanent and stationary status is established or the worker is released to return to work, the insurance carrier will cut off the temporary disability and commence permanent disability advances which are far lower than temporary disability payments.
2. Medical Treatment
California workers’ compensation law provides that the injured worker is entitled to all reasonable and necessary medical care to cure or relieve the effects of the industrial injury. However, recent changes to the workers’ compensation laws have significantly limited the type and scope of that medical care.
Beginning January 1, 2005, employers have the option of setting up “medical provider networks,” referred to as MPNs, for the purpose of providing medical care for work-related injuries. If the employer or insurance company does set up such a network, the injured worker must choose a physician from within that network. No longer can an injured worker simply choose his or her own treating physicians.
In some limited situations, an injured worker “pre-designate” a physician he or she wishes to treat with for a work-related injury before such an injury occurs. However, an injured worker can only do so if the employer has provided health coverage for non work-related injuries and then the pre-designated physicians must be the injured workers’ regular treating physician who already maintains the workers’ medical records and the physician must agree to be pre-designated.
Moreover, one of the major changes in treatment passed by the Legislature under the guise of “workers’ compensation reform” is that treatment provided by the injured worker’s doctor must meet national guidelines as to pre-approved types of treatment for various types of injuries. These are known as ACOEM Guidelines for the AmericanCollege of Occupational and Environmental Medicine. In other words, these treatment guidelines become the standard to which the treating physician must adhere in providing medical care to his or her patients for work-related injuries. Overcoming these guidelines (if your treating physician recommends treatment outside of the guidelines), is possible but difficult and your treating physician will have to show why the treatment he or she is recommending, if it is outside the scope of the guidelines, is scientifically based and more persuasive than the existing guidelines.
The treatment guidelines, called the ACOEM Guidelines, undoubtedly will make it more difficult for injured workers to obtain the necessary treatment recommended by their treating physicians.
Moreover, there are significant new changes in the law for injuries occurring after January 1, 2004 which restrict the amount of physical therapy, occupational therapy, and chiropractic care are available to injured workers. Each of these different types of treatment, that is, physical therapy, occupational therapy, and chiropractic care, is limited to 24 visits per injury. For those workers needing long-term care, this may cause severe hardship.
Additionally, the new “reforms” added special review provisions for any request for spinal surgery. Injured workers can expect that insurance companies will object and request a second opinion review of any request for spinal surgery, which in many cases may cause a delay even if the injured worker ultimately prevails on the need for surgery.
Please remember that the law provides for all “reasonable and necessary” medical care. What is reasonable and what is necessary is often in dispute with insurance companies and it is often necessary to involve the Workers’ Compensation Appeals Board over medical disputes if the insurance company will not provide medical treatment.
If the worker needs medical treatment and the insurance company refuses to give it, we suggest that the worker use his or her own health coverage to provide that treatment while the issues are being litigated at the Workers’ Compensation Appeals Board. In other words, the law indicates the worker’s own health plan or coverage must provide the treatment to the limits of its coverage if the treatment is being denied by the workers’ compensation carrier. The health plan can then file a “lien” in the case seeking reimbursement from the workers’ compensation carrier if the worker prevails at the Workers’ Compensation Appeals Board.
3. Permanent Disability and Apportionment
As we have previously indicated, workers’ compensation law unfortunately does not provide for the pain and suffering or lost wages. However, if you suffer some permanent limitations as the result of your injury, you may be entitled to a permanent disability rating, or a percentage of disability. Each percentage of disability equals a certain amount of money set by the California State Legislature.
The percentage of disability is determined by a medical opinion in the nature and extent of the injured worker’s permanent limitations. In other words, the disability is not based on how much pain or suffering the worker was in when he or she first got injured or how much there is in lost wages. The settlement for permanent disability is based solely on the injured workers’ permanent impairments. The amount of disability is often in dispute.
The permanent disability impairments are determined either by the treating physician (if the parties can reach an agreement on the level of permanent disability), or if there is a disagreement, either the injured worker or the insurance company can object to the treating physician’s opinion. If so, the injured worker’s attorney and the insurance company can either agree upon a doctor to evaluate the injured worker (called an Agreed Medical Examiner)(AME), or in the alternative, the State will appoint a panel of three physicians from the three-doctor panel to evaluate the injured worker, or if no agreement can be reached, each side may strike one name off the list, leaving the third doctor (a Qualified Medical Examiner)(QME) to examine the injured worker and determined the level of permanent disability.
Moreover, recent workers’ compensation “reforms” attempt to make it easier for insurance companies to argue, and in many cases prove, that an injured worker suffered from “preexisting disability” that is, a disability that pre-existed the industrial injury.
Under new workers’ compensation laws applicable April 19, 2004 for all dates of injuries, doctors are supposed to subtract from the injured worker’s disability, or “apportion” to any other cause of the disability in addition to the industrial injury. It is not uncommon now to see insurance companies seeking information with regard to preexisting conditions that may be related to the aging process, arthritis, obesity, etc. Insurance companies are arguing that these conditions should be subtracted from the injured worker’s permanent disability caused by the industrial injury. This is a complex area and will require much in the way of clarifying medical opinions from the treating and examining physicians, as well as arguments to the workers’ compensation judge who hears the case.
Under the new “reforms” any prior award for permanent disability from a previous workers’ compensation case to the same part of the body is by law presumed to be the permanent disability that exists at the time of the work-related injury that is subject of the current case.
As of January 1, 2005, permanent disability percentages are determined by a new permanent disability rating schedule which will incorporate many of the concepts contained in the American Medical Association Guidelines for Rating Permanent Disability. This new system has lowered benefits for permanent disabled workers, since the AMA Guidelines are more weighted towards “objective” findings and less towards “subjective” complaints of pain. In other words, injured workers who have legitimate complaints of pain due to industrial injuries, but less in the way of objective findings, may find their permanent disability awards reduced under the new system.
If an injured worker is unable to return to his or her usual duties and the employer does not offer modified work to the injured worker within 60 days of the permanent and stationary date, the weekly permanent disability rate will increase by 15% for an injured employee of an employer with more than 50 employees. However, if the injured worker returns to work or the employer offers modified duty to the injured worker within 60 days of permanent and stationary status, the weekly permanent disability rate decreases by 15%, regardless of whether or not the worker accepts the job.
4. Vocational Rehabilitation
Unfortunately, as of January 1, 2004, vocational rehabilitation has in essence been eliminated from the workers’ compensation system. In place of vocational rehabilitation (which before January 1, 2004 was re-training to another job), the Legislature has added a “job displacement benefit.”
Under this new system, if an injured worker does not return to work within 60 days of termination of temporary disability, the injured worker may receive a non-transferable “voucher” for education-related training or skill enhancement at State-accredited schools. For permanent disability of less than 15%, the voucher equates to $4,000.00; 15% to 25% equals $6,000.00; 25% to 49% equals $8,000.00; and 50% to 99% equals $10,000.00. If you are entitled to a voucher, we suggest vocational counselors who can help you utilize the voucher.
5. Death Benefits
If a worker’s death is caused or hastened by a work related injury or medical condition, surviving dependents may have a claim for death benefits. The amounts available to the surviving dependents depend on the number of dependents, the date of injury and, most importantly, the medical issues involved.
In addition to basic benefits discusses above, our clients should be aware of the following:
Medical examinations and medical evidence are a key component to workers’ compensation claims. Under the current reform more workers’ are being placed in position of selecting a medical legal evaluator (QME) and attending such evaluations before consulting with an attorney. It is critical that you consult with your attorney before making a selection of a QME or attend such an evaluation. Failure to do so may impact your benefits or the attorney’s ability to advocate on your behalf. Once you have seen a QME generally you are not allowed a second choice even if you become represented later. Please advise y office immediately if you are scheduled for a QME evaluation or are in the process of selecting a QME.
Serious & Willful Misconduct
If the employer commits an act of omission that is so wanton or egregious as to almost assuredly cause the injury of the worker, the employer may be held liable for what is called serious and willful misconduct. This requires a showing on the part of the worker of more than employer negligence or even gross negligence. If successful, the award is ordered directly against the employer, and not against the insurance company. It entitles the worker up to a 50% increase in workers’ compensation benefits up to a $10,000.00 penalty. Claims of serious and willful misconduct are very difficult to prove and are resisted vigorously by employers (again, remember that it goes not against the insurance company but against the employer itself). If, in our discussions with, we learn of facts that would lead to a serious and willful misconduct claim, we will advise you. Unless we tell you in writing that we will be filing a serious and willful misconduct case, we will not be filing such claim. The statue of limitations pertaining to serious and willful misconduct is one year from the date of the act of omission in question, causing the injury.
Labor Code Section 132(a)
Labor Code Section 132(a) prevents the employer from unlawfully discriminating against or discharging an injured worker solely because he or she has asserted an employee’s workers’ compensation rights. Again, this claim does not go against the insurance company but directly against the employer. It is the only provision in workers’ compensation law that provides for lost wages and reinstatement on the part of the employer. Claims under Labor Code Section 132(a) are extremely hard to prove, as are Serious and Willful Misconduct claims. If we believe that there are facts and circumstances that would lead to a 132(a) violation we will file it on your behalf after discussing it with you. However, to do so we will have to agree in writing, and you will be notified in writing, and unless we have agreed to file a 132(a) claim, we will not be doing so. You must first bring us information and facts that we believe would support such a claim. Do not assume we have filed one unless we have agreed to do so with you in writing. Again, the statute of limitations is one year from the discriminatory act.
Many workers believe that simply because they are out on workers’ compensation that they cannot be terminated or let go. This, unfortunately, is not the case. An employer can let a worker go under certain circumstances, even if he or she is out for an industrial injury, if the employer can show a compelling need under the “business reality” doctrine. This means that if the employer can show a need to let the worker go or if a doctor indicates that the worker will be unable to return to his usual and customary job and the employer has no modified duty available, the employer may be allowed, under those circumstances, to discharge an injured worker. Please discuss this matter feel a violation has occurred.
State Disability (EDD) Benefits
If the insurance company fails to provide temporary disability or other workers’ compensation benefits, the worker can seek payments from the State of California under the State Disability laws by contacting the nearest Employment Development Office (EDD). A worker can qualify for State Disability if he or she has paid into the system and is disabled. While State Disability is typically intended for non-industrial disability claims, State Disability may be available to the worker when the employer or insurance company is denying benefits for an industrial injury. The worker can apply for State Disability (EDD) benefits under those circumstances. However, the State does have the right to file a “lien”. That is, the State has the right to ask for the money back from the worker’s recovery in the workers’ compensation case.
Social Security Disability
If a worker is out of work for one year or longer, the worker may qualify for Social Security Disability benefits. The legal standard is disability from all gainful employment, not just from the usual and customary job of the worker. My office does handle Social Security in selected cases. If you believe that you may qualify for Social Security Disability benefits, please bring it to our attention immediately and if we believe we can help you, we will agree to do so in writing. A separate legal fee is set by federal law in Social Security Disability cases. Again, unless I agree in writing, I will be representing you in the workers’ compensation case only. However, if you feel that you have been off for one year or longer due to your disability claim, and that you were unable to work during that period or in the foreseeable future, we will be happy to consider representing you in a social security claim and we ask you to bring that to our attention as soon as possible.
Fair Employment and Housing Act and Americans With Disabilities Act
An injured worker has rights outside of workers’ compensation law. An injured worker may have the right to pursue a physical disability discrimination claim under the Fair Employment and Housing Act (FEHA) or the Americans with Disabilities Act (ADA) if the employer fails to reasonably accommodate a disabled worker.
The Americans with Disabilities Act mandates that if the worker has a disability that qualifies under the Act, the employer has an affirmative duty of “reasonable accommodation,” that is, to modify the work so as to enable the worker to return to employment, unless to do so would cause the employer undue hardship.
The Fair Employment and Housing Act provides protection from harassment or discrimination in employment because of disability (mental and physical) including HIV/AIDS, medical condition (cancer and genetic characteristics), sex, sexual orientation, age (40 and over), ancestry, color, religion, and race.
If you have an ADA or FEHA lawyer and/or have filed an ADA or FEHA claim, or you believe you have a claim of discrimination based on your disability, please notify us immediately.
Our firm will be representing you only in the workers’ compensation case. In appropriate cases, I may refer you to an attorney with expertise in ADA and FEHA. The referral would be in writing. The lawyer to whom I refer your case will determine whether or not he or she can assist you. Because there are very strict time limits for filing ADA and FEHA claims, I urge you to immediately file a claim with both the State Department of Fair Employment and Housing (FEHA claims) (800 884-1684) and the Federal Equal Employment Opportunity Commission (ADA claims) (415 356-5100 or 510 637-3230). I suggest that you call both offices for appointments. You should also have an experienced lawyer, whether the lawyer to whom I refer you or a lawyer of your choosing. If the lawyer to whom I refer you accepts your case, my office may share in the fee that the lawyer charges (without increasing the overall cost to you) because my office would assist that lawyer in developing evidence in the case.
Again, while I have given you quite a bit of information in this handout, I would urge you to carefully consider the information we have provided and reread it as needed so that you will be guided throughout the course of the case as to what you might expect.
The primary asset an injured worker has in the course of the workers’ compensation case is his or her credibility. Once that credibility is placed in doubt the whole case is jeopardized. This means that the worker should be absolutely honest with his or her lawyer, with the doctors, and with all parties involved in the case, about the circumstances surrounding the injury and prior injuries and all factors involved in the case.
Many insurance companies hire “sub rosa” investigators to try to catch workers doing activities that are in excess of what they have told the doctors they can do. It is not uncommon for insurance companies to hire investigators to try to film an injured workers’ activities or find out about additional employment while the worker claims to be out of work on disability, or other such issues. The worker should be aware of this, and should not attempt to present any claim that is not legitimate. Workers’ compensation fraud in California is a felony regardless of the amount of money involved, and insurance companies and district attorneys are pursuing these claims. Workers’ compensation fraud applies not only to the injured worker but also to employers and insurance companies. If you believe an employer or an insurance company has committed fraud please bring it to our attention immediately.
Attorney fees under workers’ compensation law are set by law and are contingency fees. Contingency means that you only pay a fee at the favorable conclusion of your case. There is no fee for a consultation. For cases of average legal complexity the judge will typically set the fee at 15% of all disputed benefits obtained by the attorney for his or her client. In cases of greater than average complexity, a judge can award an attorney fee of up to 20%. No fees are payable unless approved by a workers’ compensation judge.
Again, thank you for retaining the Law Office of Robert E. Wood to represent you. I look forward to bringing your case to a successful conclusion under workers’ compensation law as soon as I can.
Robert E. Wood
Attorney at Law
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