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Frequently Asked Questions About Workers’ Compensation In California

Serving injured workers in all types of workplace issues throughout Northern California, our attorneys at the law firm of Waxman & Achermann have vast experience in helping our clients get the compensation they have a right to receive in an expeditious manner.

We’ve provided brief answers here to some of the questions our clients frequently ask. For legal advice or a free consultation, please call our office in San Francisco at 415-520-7265 or send us an email to initiate a consultation.

What happens if my employer disputes my case?

You can appeal a denial of benefits to a workers’ compensation judge. To do so, you have to file an “Application for Adjudication of Claim” and a “Declaration of Readiness to Proceed” for hearing before a judge. Our attorneys at Waxman & Achermann can help you with this process.

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 your work injury on a medical basis. Additionally, if there are factual disputes arising from your injury, such as if your employer is denying that a specific injury occurred, then you can present witnesses as well as medical evidence to establish your claim.

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

If your employer puts a case on “delay” and is utilizing some or all of the 90-day investigation period, you may seek state disability benefits from the Employment Development Department (EDD) after letting the EDD know you are 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 your employer is delaying or denying medical care, you may have to utilize your own medical health insurance to provide the benefits you need in the meantime.

If you do not have health insurance to provide the care you need, 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 your injury.

How long does temporary disability last?

Temporary disability benefits will continue as long as you are off work and the continuing disability is supported by a treating or examining physician, with a maximum limitation of 104 weeks per injury. Once your condition reaches “permanent and stationary” status, your employer will cut off temporary disability. Temporary disability will also stop if you return to work or if your employer offers suitable alternate modified work to you.

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.

Can I get a jury trial?

No, under workers’ compensation law, you are 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 that closes all issues.

There are advantages and disadvantages to each type of settlement. With regard to an award, the benefits are paid overtime 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 an 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 does not typically pay out-of-pocket expenses for litigation costs in a case.

Can I sue for civil damages for a work injury?

If your injury is caused by a “third party” or someone other than the employer, such as an on-the-job automobile accident or a defective machine, then you may have a civil lawsuit against the “third party” as well as a workers’ compensation claim against your employer. Third-party claims for civil lawsuits are not restricted to the Workers’ Compensation Appeals Board and proceed in the civil courts. When you speak to us at Waxman & Achermann, we can help you determine if your circumstances may involve a third-party civil lawsuit.

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 a “sub rosa” investigation to try to catch an injured worker doing activities that the injured worker claims they 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 their physicians about the level of activities that they are capable of. The injured worker is entitled to obtain and view any videos of their 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?

No. 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 you 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.