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, they 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 compensatable.

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 worker's 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. Consulting a workers' compensation attorney costs nothing. If an attorney takes the case, the fee will generally be 9-12% of any settlement or award at the end of the case.

FAQ: The Difference between Workers Compensation and Civil "third party" cases

California Workers' Compensation laws were written to provide limited benefits to workers who sustain injury or illness which arises out of their employment. The "compensation," if awarded, can be in the nature of money for disability benefits, medical coverage, or, if the work-related injury or illness causes the death of the worker, limited money benefits for those who had been dependent upon the deceased worker for support.

Thousands of California workers are injured on the job every year, so it's likely that most of us will have an on-the-job injury or illness at some point in our lives, or have someone close to us who will. Despite the fact that work injuries occur so commonly, some workers have no idea about their rights, and the limitation of those rights, under the Workers' Compensation laws. Injured workers are usually surprised to learn that California Workers' Compensation benefits are not necessarily intended to fully compensate the injured worker or to make the worker "whole." Simply, Workers' Compensation laws have usually been more protective of the interests of employers than the interests of injured workers, and that is more true than ever today.

With respect to the medical coverage that is provided to the injured worker, the employer's insurer controls, for the most part, how much care the worker will get, as well as where and under what circumstances that medical care will be provided. With respect to disability money, while the injured worker is unable to work and still treating for their injury, they are paid, at most, only 2/3 of what they were earning before their injury, and there are strict limits upon how long this "temporary disability" benefit must be paid to the injured worker. If the worker's disability is permanent, the worker is entitled to additional disability benefits, but they are severely limited under current law.

Regardless of whether the worker's injury is temporary or permanent, Workers' Compensation does not cover neither worker's pain and suffering, past, present, or future, no matter how severe the injury. Workers' Compensation also does not cover the injured worker for mental and emotional distress arising out of the injury or illness, nor loss of enjoyment of life.

The ultimate protection provided to the employer, even if the employer was negligent in causing the worker's injury, is that Workers' Compensation is the only claim, the "exclusive remedy," that the injured worker has against his or her employer. In other words, the injured worker usually cannot sue the employer in civil court for damages.

The justification for this bar on lawsuits against the employer is that the employer must provide Workers' Compensation benefits for all work-related injuries or illnesses, even if the employer was not negligent or otherwise at fault in causing the work-related injury or illness. However, this is cold comfort to a severely injured or ill worker who can receive only these limited Workers' Compensation benefits from the employer.

The strict limits on Workers' Compensation benefits are the primary reason that we look so carefully to determine whether a work-related injury or illness was not only related to the injured worker's employment, but may also have been caused by the negligence or other fault of "third parties." In this sense, "third party" refers to people or companies other than the injured worker, a co-worker, or the worker's employer. While the injured worker is prevented under nearly all circumstances from suing their employer in civil court for the full damages resulting from the workplace injury, the injured worker is allowed under California law to sue in civil court, for whatever damages sustained that are not compensated by the Workers' Compensation system, any such third parties who were negligent or otherwise at fault in causing the workplace injury.

A commonplace example of such a "third-party suit" would be on behalf of a worker who has been severely injured by a machine while on the job. That worker would have a Workers' Compensation claim against his or her employer, but would also have a third-party civil suit against the manufacturer, designer, and/or supplier, of the machine causing the injury, if it can be shown that those third parties were negligent or otherwise at fault in connection with the machine. Another typical example of a third-party case is that of a worker who has been made ill by exposure to asbestos or chemicals in the workplace. Again, that worker would have a Workers' Compensation claim against the employers for whom she or he worked while being exposed to the asbestos or chemicals which caused his or her illness, and that worker would also have a civil third-party lawsuit against the manufacturers and/or suppliers of those chemicals to the workplace. While the worker would not have to prove any negligence on the part of the employer to recover Workers' Compensation benefits, the worker would have to prove negligence or other fault against the chemical manufacturers in this example in order to recover the full measure of civil damages.

There are many other examples of potential third parties who may be responsible when a workplace injury occurs. At Rose, Klein & Marias, we pride ourselves on our experience and ability to uncover the identity of potential third-party defendants who may have caused or contributed to a worker's serious injury or illness.

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:

  • The insurance company's interests are not the same as those of the injured worker.
  • The workers' compensation system is highly complex, with many procedural requirements and time limitations.
  • 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 interview or for any services along the way. The attorney fee is 9-l2% of any settlement or award at the end of the case (the fee may be l5% 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 that 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 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 personal injury 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.

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 medical treatment within certain guidelines 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 worker's life.

It is extremely important that the injured worker be treated by a physician who will be reporting for the injured worker rather than for the employer. 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.

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 an 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 not to be 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 they have 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.

What happens if my doctor releases me to light duty work but my employer refuses to offer light work?

Often a treating physician will release an employee to limited kinds of work 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 worker's 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.

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, this form of settlement is favored by 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. In addition, the injured worker is entitled to a monetary award for any permanent disability they may have. The monetary award is payable weekly over a period of time. The greater the degree 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 on 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.

What is the amount of attorney fees in workers' compensation claims?

There is no charge for the initial consultation in a workers' compensation claim. Attorney 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 at the end of the case. If a person chooses to be represented by an attorney, the attorney fees will be deducted from the settlement at the end. Attorney fees normally range from 9-l2% of the benefits awarded. The actual amount of the attorney fee will depend upon the complexity of the case. In complex cases, the fee may be l5%. 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 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 therefore receives no settlement or award, there is no charge for the attorney's services.

My doctor has declared my condition to be permanent and stationary. What does this mean?

Permanent disability is that degree of disability or impairment that remains after the employee has reached the point of maximum healing. A permanent disability may be partial or total. If a person suffers a permanent partial disability, the person is entitled to a permanent disability rating and award even though he or she may be able to return to work.

Permanent disability ratings are provided under the law in the form of money payments, the amount of which depends on a number of things, including the injured's age, occupation, the part of the body injured, and the extent of the disability. The rating can range from l% to l00% depending on how the permanent disability affects the injured worker's ability to compete in the open labor market. A total disability for any type of work carries a l00% rating. Some of the more obvious examples of total disability would be the loss of both arms, both legs, or the lost of sight of both eyes.

The weekly rate at which permanent disability payments are made varies, depending on the date of the injury, and the extent of the permanent disability. A person who is permanently totally disabled with a rating of l00% is entitled to receive their temporary disability rate for life.

For permanent partial disabilities that occur between July 1, 1996 and December 31, 2002, the injured worker is entitled to receive payments up to a maximum of $140.00, $160.00, $170.00, or $230.00 depending upon the percentage of disability. For injuries that occur in 2003, the maximum benefit is payable at either $185.00 or $230.00 per week, for injuries in 2004 the maximums are $200.00 or $250.00, and in 2005 the maximums are $220.00 and $270.00 depending upon the percentage of disability. The number of weeks of payments are determined by the percentage loss of the injured workers working capacity. The greater the disability, the longer the payments are made. For permanent disability of 70% or more, in addition to the normal payments, the person is entitled to a small life pension.

Payments for permanent disability are payable in addition to any payments that the injured worker may receive for temporary disability, and are over and above the cost of medical care. These payments are made after the injury becomes permanent and stationary, or the last date of payment for temporary disability.

Substantial problems may occur in determining the amount of permanent partial disability payable to the injured worker where there is a pre-existing disease or impairment to the same part of the body which has been injured. Disputes often arise regarding how much of the disability is due to the injury, and how much is due to the pre-existing condition.

In early 2004, much of the state's Workers' Compensation law, especially with respect to permanent disability benefits, was changed in a large set of laws pushed through the state legislature by then new Governor Schwarzenegger. The interpretation and application of these laws continues today. RKM Workers' Compensation lawyers continue to study and advocate ways in which injured workers can still receive the benefits due them, even under the new law.

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