Certified Specialist in California Workers' Compensation Law

FREQUENTLY ASKED QUESTIONS ABOUT WORKERS' COMPENSATION

1. If the employer disputes my case what can I do?
2. The employer has up to 90 days to investigate a disputed claim before either accepting or rejecting liability. How do I survive in the meantime?
3. How long does temporary disability last?
4. How are permanent disability awards determined?
5. Am I entitled to a jury trial?
6. How can I resolve my case?
7. How are attorney fees paid?
8. Who pays for the medical costs?
9. Can I sue for civil damages for a work injury?
10. Can the insurance company follow me around and take pictures of my activities in order to disprove a claim?
11. Can I recover my lost wages and receive damages for pain and suffering in a workers' compensation claim?
12. Do I need an attorney?

If the employer disputes my case what can I do?

The injured worker can appeal a denial of benefits to a workers' compensation judge. To do so, the injured worker must file an "Application for Adjudication of Claim" and a "Declaration of Readiness to Proceed" to hearing before a judge. Before filing for a hearing, it will be essential to obtain medical evidence from the treating physician or an examining physician (a Qualified Medical Examiner) to establish the work injury on a medical basis. Additionally, if there are factual disputes arising from the injury itself, such as if the employer is denying that a specific injury occurred, then the injured worker can present witnesses as well as medical evidence to establish the claim.

The employer has up to 90 days to investigate a disputed claim before either accepting or rejecting liability. How do I survive in the meantime?

If the employer puts a case on "delay" and is utilizing some or all of the 90-day investigation period, the injured worker can seek State disability benefits from the Employment Development Department (EDD) after indicating to EDD that the worker is attempting to obtain workers' compensation but the case is either on delay or has been denied and pending a hearing. The same concept is true with regard to medical treatment; if the employer is delaying or denying medical care, the injured worker can utilize his or her own medical health insurance to provide the benefits in the meantime. If the worker has no health insurance to provide the care, the employer must pay for treatment up to $10,000 during the delay period.

How long does temporary disability last?

Temporary disability benefits will continue as long as the injured worker is off work and the continuing disability is supported by a treating or examining physician. Add: However, except in rare instances, temporary disability payments are limited to two years total for each date of injury after April 19, 2004.

How are permanent disability awards determined?

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 on 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 worker’s permanent impairments. The amount of disability is often in dispute.

Am I entitled to a jury trial?

Under workers' compensation law, the injured worker is not entitled to a jury trial for a workers' compensation claim. Hearings are held before administrative law judges who hear cases at the Workers' Compensation Appeals Board.

How can I resolve my case?

Workers' compensation cases are resolved either by way of settlement or by way of a decision from a workers' compensation judge. There are two ways to resolve a workers' compensation case: an award of permanent disability benefits (and medical care) or a Compromise and Release. An award is either rendered by the workers' compensation judge or is obtained by an agreement with the insurance company after negotiation which entitles the injured worker to a percentage of disability which equates to a certain amount of money payable in weekly amounts with open medical care. On the other hand, a Compromise and Release is a lump sum payment which closes all issues. There are advantages and disadvantages to each type of settlement. With regard to an award, the benefits are paid over time on a weekly basis, but the injured worker usually is entitled to ongoing medical care for any treatment related to the injury. When the injured worker enters into a Compromise and Release, he or she is entitled to a lump sum, which is usually more money and payable all at once as opposed to weekly amounts. However, the disadvantage to a Compromise and Release is usually the closure of medical care. Factors that would go into whether an injured worker wishes to compromise and release his or her case include whether or not the injured worker has alternative medical insurance, whether or not the injury itself is disputed, and the nature of the dispute as to the level of permanent disability.

How are attorney fees paid?

Attorney fees in workers' compensation cases are set by California state law and are limited to 12-15% of the award or settlement obtained for the client. If there is no award or settlement, no fees are paid. The workers’ compensation judge determines the 12-15% fee based on the complexity of the case. There is no charge for a consultation.

Who pays for the medical costs?

Under workers' compensation law, medical treatment is to be paid for by the employer and/or its insurance company. Disputed cases are determined by the workers' compensation judge. Costs of obtaining medical evaluations or records to prove a case are typically paid for by the employer or insurance company. Under the law the injured worker is typically not "out-of-pocket" any expenses for litigation costs in a case.

Can I sue for civil damages for a work injury?

Workers' compensation is a no fault system and usually the only claim an injured worker has against the employer or insurance company for a work injury is workers' compensation law. If the employer has secured the mandatory workers' compensation insurance, the injured worker is restricted to the Workers' Compensation Appeals Board and cannot sue the employer for civil damages. However, if the employer is unlawfully uninsured, or if the employer commits an assault or otherwise intentional act against the employee, or the injury is caused by a "third party" or someone other than the employer or another employee, such as an on-the-job automobile accident or defective machine, then the injured worker may have a civil lawsuit against the employer or "third party" as well as a workers' compensation claim against the employer. Such lawsuits against the employer or third party are not heard by the Workers' Compensation Appeals Board; but proceed in the civil courts.

Can the insurance company follow me around and take pictures of my activities in order to disprove a claim?

Typically insurance companies can conduct what is know as "sub rosa" investigation to try to catch an injured worker doing activities that the injured worker claims he or she cannot do. Investigators typically hide in vans or in the bushes and try to catch the injured worker doing physical activities. Under most circumstances employers are allowed to conduct sub rosa investigation, but the sub rosa investigation only harms the employee if it can be shown that the employee has not been truthful with his or her physicians about the level of activities of which he or she is capable. The injured worker is entitled to obtain and view any videos of his or her activities before trial, as well as show the video to the treating doctor or examining physician if an explanation is warranted. 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.

Can I recover my lost wages and receive damages for pain and suffering in a workers' compensation claim?

Workers' compensation benefits are restricted to temporary disability, medical treatment, permanent disability and vocational rehabilitation. Pain and suffering damages as well as lost wages usually cannot be recovered in a workers' compensation case.

Do I need an attorney?

It is our belief that an injured worker will do better in obtaining the benefits that he or she is entitled to and deserves with the assistance of an attorney who specializes in workers' compensation law. The need for an attorney usually correlates with the seriousness of a case. If an injured worker has a short-term injury requiring just a few days off work and medical treatment is voluntarily provided and there is no permanent damage from the injury, then an injured worker in that situation would not need an attorney. However, if the injury results in permanent disability or restrictions, and/or the benefits are disputed or denied, the injured worker may be far more successful in pursuing the claim with the assistance of a specialized workers' compensation attorney. Joseph C. Waxman is a certified specialist in workers' compensation law as certified by the State Bar of California.

Home  |  Attorneys  |  About Laws & Benefits  |  Related Cases and Benefits  |  How the Process Works  |  Frequently Asked Questions  |  Disclaimer
© 2003 - 2008 Joseph C. Waxman   All Rights Reserved.