Freqently Asked Questions
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 (the law offices of Joseph C Waxman can assist in this regard) a "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, an agreed upon medical examiner, 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 not health insurance to provide the care, it will be essential to move the case forward as quickly as possible to a workers' compensation judge to determine the work-related nature of the injury. The law offices of Joseph C Waxman can assist in this regard.
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, with a maximum limitation of 104 weeks per injury. Once the condition reaches "permanent and stationary" status, the employer will cut off temporary disability. Temporary disability will also stop. If the injured worker returns to work or if the employer offers suitable alternate modified work to the injured worker.
How are permanent disability awards determined?
A permanent disability award is based upon the permanent impairments that an injured worker has as a result of an injury. The amount of the award is determined by the significance of the disability and is often in dispute depending upon the opinions of the treating and examining physicians. Workers' compensation judges have the ultimate authority to determine the amount of the award based on the medical evidence and the testimony of the injured worker, as well as other witnesses.
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 law and are contingency fees, meaning that the attorney is entitled to a reasonable fee to be obtained from the injured worker's settlement or award from a judge. Fees are generally set at 15% of the award and if there is no award or settlement, no fees are paid.
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 usuall y 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 injury is caused by a "third party" or someone other than the employer, such as an on-the-job automobile accident or defective machine, then the injured worker may have a civil lawsuit against the "third party" as well as a workers' compensation claim against the employer. Third party claim for civil lawsuits are not restricted to the Workers' Compensation Appeals Board and 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 known as "sub rosa" investigation to try to catch an injured worker doing activities that the injured worker claims he or she cannot do to the doctors. 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 generally if it can be shown that the employee has not been truthful with his or her physicians about the level of activities that he is capable of. 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.
Can I recover my lost wages for pain and suffering in a workers' compensation claim?
The workers' compensation benefits are restricted to temporary disability, medical treatment, permanent partial disability and vocational rehabilitation. Pain and suffering damages as well as lost wages usually cannot be recovered in a workers' compensation case, but the injured worker may be entitled to all or some of the four basic benefits of temporary disability, medical treatment, permanent disability and vocational rehabilitation, depending on the medical evidence.
Do I need an attorney?
California Worker’s Compensation law has become an extremely complex area of the law and is often unfair to injured workers. 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. The law offices of Joseph C Waxman specialize in California workers' compensation law, and bring the necessary experience and expertise to these complex issues to obtain the best award possible for clients of the firm.