Certified Specialist in California Workers' Compensation Law

ABOUT CALIFORNIA WORKERS' COMPENSATION LAWS & BENEFITS

California workers' compensation law provides a mandatory no fault system for determining employer liability for on-the-job injuries. Except in very limited circumstances, workers' compensation law provides the only remedy for an injured worker against his or her employer. Liability is to be determined without fault; benefits are to be provided regardless of the negligence of either the employer or the employee. Under the California system (with certain exceptions), an employee generally has no tort or civil remedy against his or her employer. Unfortunately, workers' compensation law does not provide for pain and suffering or lost wages as part of the damages that can be recovered.

Under California workers' compensation law, it is required that the injured worker prove that the injury arose out of and occurred in the course and scope of employment. Generally, under the California workers' compensation system, injuries are either one of two types:

(1) Specific injury. A specific injury occurs in one defined moment, such as a trip and fall a specific lifting incident or a machine accident and other types of specific events.

(2) Cumulative Trauma Injury or Occupational Disease. Cumulative injuries are equally as valid as specific injuries, although sometimes more difficult to prove at the Workers' Compensation Appeals Board. A cumulative injury is one that occurs over a period of time and is not due to one day or one incident at work. Examples would include continuous keyboarding activity that leads to carpal tunnel, or prolonged heavy labor which leads to back problems, or prolonged standing leading to foot or leg injuries. Continuous exposure to dust may lead to lung conditions, while continuous stressful conditions may lead to heart difficulties. Cumulative injuries must be proved with medical evidence from either treating or evaluating physicians.

(3) Psychiatric or Emotional Injury. Are also recognized by the Workers' Compensation Appeals Board, but are difficult to prove. The work stresses must be the predominant cause of the injured worker's problem and the stress cannot arise out of a "lawful or non-discriminatory" personnel action. As the injured worker may expect, claims for mental stress injuries are usually very contested by employers and insurance companies and usually result in prolonged litigation.

However, emotional stress injuries can also result from specific injuries, such as emotional difficulties that arise out of a traumatic industrial injury, or as a result of a specific injury that has resulted in serious physical disabilities.

Under the California workers’ compensation laws, if a worker is successful in showing that either a specific and/or cumulative injury or occupational disease has occurred, the worker may be entitled to some or all of the four workers’ compensation benefits.
If an injured worker dies as the result of an industrial injury and leaves dependents, there may be death benefits for his or her dependents.

1. Temporary Disability.

Temporary disability is paid at two-thirds of your salary up to a maximum of $916.00 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 the stated maximum. Unfortunately, the injured worker does not get the maximum simply because he or she is disabled. The determining factors include the injured worker’s 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 reduced. Temporary disability can also end if the 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 Governor Schwarzenegger’s workers’ compensation “reforms” which in most cases have resulted in workers receiving reduced benefits.

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 physician.

In some limited situations, an injured worker may “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 physician must be the injured worker’s regular treating physician who already maintains the worker’s 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 American College 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 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 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 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.

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 and both the injured worker’s attorney and the insurance company can either agree on one of the 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 determine the level of permanent disability.

Moreover, recent workers’ compensation “reforms” initiated by the insurance companies and supported by Governor Schwarzenegger 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 the 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 permanently 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 will suggest vocational counselors who can help you utilize the voucher.

5. Death Benefits.

If an injured worker dies as the result of an industrial injury and leaves dependents, the dependents can claim death benefits before the Workers' Compensation Appeals Board. The amount of death benefits is determined by the number of dependents and the degree of dependency, as well as whether or not the injured worker has left minor children. The standard for death benefits at the Workers' Compensation Appeals Board is whether or not the work injury has "caused or hastened the injured worker's death." Medical evidence is essential to prove the dependents’ claim for death benefits.

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