Certified Specialist in California Workers' Compensation Law

HOW THE PROCESS WORKS

The Workers' Compensation Appeals Board holds hearings in front of Administrative Law Judges to determine the nature and extent of benefits to which an injured worker is entitled. The workers' compensation process can be long and involved and is often difficult for the injured worker to endure since usually the injured worker is receiving relatively small amounts of money from the insurance company (if at all) while benefits are being determined. Some of the typical events in the workers' compensation process include the following:

1. The work injury must be reported to the employer.

The employee typically will fill out a "notice of claim" which is required to be provided by the employer to the injured employee after notice of an injury. By accepting the notice of claim from the injured worker, the employer is not admitting the injury. The notice of claim merely serves to put the employer on notice a claim is being made against it.

2. Under California law the employer has up to 90 days to investigate and either accept or deny the claim.

The employer should not be able to automatically take advantage of this 90-day investigation period in every case; if an employer is well aware of an admitted industrial injury, penalties can apply if benefits are delayed or denied. However, in a disputed claim, the employer can take up to 90 days to investigate the injured worker's claim and during that time the employer may be allowed to take the injured worker's statement or have the injured worker examined by a physician, or obtain the injured worker's medical records. For injuries after January 1, 2005 the employer must pay for medical care up to $10,000 during the first 90 days.

3. If the claim is accepted, the injured worker’s attorney will select the client’s treating physician. The injured worker will receive temporary disability benefits until the medical condition reaches permanent and stationary status. At that point the injured worker will be evaluated for any permanent consequences from the injury.

4. If the permanent disability is disputed on an accepted claim, the injured worker’s attorney or the employer may arrange for him or her to be evaluated by a Qualified Medical Examiner(QME) or the two sides may agree to an evaluation by an Agreed Medical Examiner (AME).

5. If the dispute can still not be resolved, then a workers' compensation judge may determine the issue after a hearing. Workers' compensation judges sit as administrative law judges; juries do not hear workers' compensation cases.

6. If the employer or insurance company denies the injured worker's claim, then the injured worker’s attorney can proceed to obtain medical evidence by obtaining reports from the client’s treating physician and/or a Qualified Medical Examiner chosen by the worker's attorney from a random panel of three doctors provided by the state. Any remaining disputes would be determined by a workers' compensation Judge following a hearing.

7. Administrative hearings include the presentation of testimony by the injured worker, as well as supporting witnesses, as well as hearing from employer or employer witnesses.

Medical evidence is usually submitted by the submission of medical reports on behalf of the injured worker or on behalf of the insurance company. In a disputed case, Joseph C. Waxman will help the injured worker obtain medical evidence either from the treating physician or a Qualified Medical Examiner, or both, to help present the injured worker's claim in the strongest light.

8. After a decision is rendered by a workers' compensation judge, either side may appeal to the Workers' Compensation Appeals Board, which is a state-appointed court made up of seven appointees (appointed by the Governor) established for the purpose of reviewing the decisions of workers' compensation judges.

After this process, in some instances the cases may be appealed further either to the Court of Appeal or the California Supreme Court.

9. Attorney fees are set by law.

A workers' compensation judge will set an attorney fee typically relying on a range of 12% to 15% of the injured worker's recovery. Attorney fees are contingent and payable only upon the injured worker receiving an award from a judge or settlement. There is no charge for an initial consultation.

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