California Workers' Compensation Law
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:
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.
Cumulative injuries are equally 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.
Psychiatric or mental stress
Psychiatric or mental stress injuries are also recognized by the Workers' Compensation Appeals Board, but have been severely limited by the California Legislature in recent years. 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, even though emotional stress injuries can also result from physical injuries, such as emotional difficulties that arise out of a traumatic industrial injury, as of January 1, 2014, The Legislature has limited an injured worker’s right to obtain disability compensation for psychiatric or psychological disabilities arising from physical injuries except in very limited circumstances, although medical treatment may still be available.
An injured worker in California is entitled to four basic benefits:
Permanent Partial Disability
Job Displacement Benefits
1. Temporary Disability
Temporary disability is paid to the injured worker when he or she is unable to work as a result of a work injury and is under active care with a physician. Temporary disability is paid at a rate of two-thirds of salary up to a maximum of $1074.64 per week.
Temporary disability benefits can continue until either the injured worker is released to return to work or until his or her condition is found by the treating or examining physicians to be permanent and stationary.
Permanent and stationary simply means that it has been determined that the injured worker's medical condition has stabilized and reached a point of maximum medical improvement and is neither getting better or worse. Permanent and stationary does not mean that the injured worker no longer needs medical care; rather, permanent and stationary means that the physicians have determined that the injured worker's condition has reached a plateau.
Unfortunately, the California Legislature has limited temporary disability benefits to 104 weeks of payment, regardless of the injured workers condition.
As many injured workers have learned, entitlement to temporary disability is often a hotly contested issue in the workers' compensation system, with employers and insurance companies attempting to have an injured worker's condition found to be permanent and stationary as soon as possible so as to limit the employer's liability to the injured worker for ongoing temporary disability benefits. The injured worker does have the right to obtain medical evidence to present his or her position on the issue of permanent and stationary status.
2. Medical Care
California workers' compensation law provides that the injured worker is entitled to all reasonable and necessary medical care to cure or relieve from the effects of a work injury.
However, as many workers have learned, the phrase "reasonable and necessary" often is a hotly contested issue in the workers' compensation system, with what the employer determines to be reasonable and necessary medical care being at odds or even adverse with what the injured worker determines to be reasonable and necessary medical care. Often, there are conflicting medical opinions on this point which must be determined by a workers' compensation judge.
Generally, under the workers' compensation laws, an injured worker can select his or her treating physician after 30 days from the date of injury. For the first 30 days an employer or insurance company can control the injured worker's medical care unless the injured worker has "predesignated" a physician before an industrial injury, indicating that if the injured worker does get hurt on the job he or she wishes to treat with a specific doctor. Without the predesignation, the employer controls the medical care for the first 30 days, but after that point, the injured worker can select his or her own doctor.
The injured worker is entitled to one managing treating physician at a time; this doctor manages the injured worker's case. However, the treating doctor can refer the injured worker to other specialists as necessary, helping to coordinate the care that a seriously injured worker may need to recover as best as possible from a work injury.
The medical care that the injured worker is entitled to is not time limited. In other words, an injured worker may be entitled to medical care for the rest of his or her life, as long as that treatment is reasonable and necessary and related to the work injury. Often disputes arise regarding the nature and extent of medical treatment and these disputes must now be referred to physicians known as qualified medical examiners or agreed medical examiners.
Moreover, the California Legislature has allowed employers or insurance carriers to set up “medical provider network’s” which confine the injured workers or’s choice of physician to physicians selected by the employer/carrier within the network.
This has significantly limited an injured worker’s right to treating physician of his/her choice.
The law offices of Joseph C Waxman can assist an injured worker in selecting the best available treating physician within the employer’s medical provider network.
Unfortunately, the California State Legislature, as implemented a series of “utilization review” and “ independent medical review” procedures which are both frustrating to injured workers and restricting their access to proper medical care. All requests of treating physicians, even those within the employer’s/insurance carriers “medical provider networks” are subject to review by the insurance company and even reasonable treatments are often denied.
Disputes are often referred to “independent medical review,” which, shockingly allow the state to select an anonymous doctor who has neither treated nor evaluated the injured worker to render a nonappealable final decision. Undisputed treatments.
The Law Offices of Joseph C Waxman believes that this provision and the law violates the California State Constitution, which mandates that the Legislature provide a system for injured workers that is expeditious without encumbrance and accomplishes substantial justice for injured workers. However, the Law Offices of Joseph C Waxman will pursue all avenues available to ensure that the injured worker obtains the reasonable and necessary care required for work-related injuries.
3. Permanent Partial Disability
After an injured worker reaches permanent and stationary status, that is, when the treating or evaluating physicians determine that the injured worker has reached the point where he or she is not getting any better or worse but staying about the same, the injured worker is then evaluated by the physicians for any permanent impairments that he or she may have as a result of the injury.
Unfortunately, under workers' compensation law the injured worker is not entitled to any benefits or monetary award for "pain and suffering."
However, if as a result of the work injury the worker is now limited as to what he or she can do in the labor market, then the injured worker may be entitled to a permanent disability award.
Permanent disability is determined on a scale from 1% to 100%, with 100% permanent and total disability cases usually involving catastrophic injuries which, unfortunately, make it impossible for the injured worker to compete in the open labor market. However, workers' compensation law also provides for permanent partial disabilities.
Once either the treating physician, the agreed medical examiner, or the qualified medical examiner determines that the injured worker’s permanent stationary, the injured worker is evaluated for any permanent impairments resulting from the industrial injury.
The California Legislature requires under Worker’s Compensation law that this impairment rating be determined according to the American Medical Association guidelines of impairment which is a very complex medical book providing for ratings for each particular type of disability.
These ratings are often very low and extremely unfair in many times, bear no relation to an injured worker’s ability to function at work. The law offices of Joseph Waxman can employ all strategies available to have a treating or examining physician consider all factors of disability that effect an injured worker and in some occasions employ a vocational expert to ensure that the injured worker obtains the most fair rating available.
Each percentage of disability equals a certain amount of money which has been established by the California State Legislature. The higher the percentage, the higher the amount of money. Again, the percentage of permanent disability is not determined by once I extensive or serious the injury was at the time of injury; but rather the permanent disability is determined by what the permanent work restrictions are after the injured worker has been able to obtain the appropriate medical treatment and has been found to be permanent and stationary or reached the point of maximum medical improvement.
Once the permanent disability has been established, the injured worker is entitled either to an "award" according to a percentage of permanent disability which is paid in weekly amounts with the provision for open medical care; or in the alternative, the injured worker may choose to have what is called a Compromise and Release which entitles the injured worker to a lump sum payment but usually closes medical care.
As many injured workers have learned by going through the workers' compensation system, the nature of extent of permanent disability is usually very contested by employers and insurance companies and often conflicting medical opinions will be given to a workers' compensation judge as evidence. Disputes as to the nature and extent of pern1anent disability are often negotiated with the agreement of all concerned, or if negotiation is not possible, by the determination of a workers' compensation judge after a hearing.
4. Job displacement benefits
If the injured worker is found to have a permanent disability that makes it impossible for the injured worker to continue in his or her employment, he or she will be entitled to vocational rehabilitation. Vocational rehabilitation in the workers' compensation system simply means retraining to another job. In other words, if the injured worker has a restriction or disability that makes it impossible for him or her to continue in the job he or she was doing at the time of injury, the injured worker is entitled to be retrained to another occupation that is compatible with the work restrictions.
Unfortunately, the State Legislature has markedly restricted benefits available to an injured worker when he or she is unable to return to his/her previous job.
In a most unfair manner, the California State Legislature repealed and 2004 and injured workers rights to vocational rehabilitation. However, injured workers who cannot return to her usual and customary job are now entitled to a “voucher” which provides for “job displacement benefits.” Payable to a school to enable the worker to obtain some additional training looking towards reemployment. The “voucher” to arrange between $6000 and $10,000 depending on the rating.