Workers' Compensation: Questions and Answers
1. How to select a lawyer.
2. What should I do if injured on the job?
3. Do I have to receive medical treatment from the company doctor?
4. What Benefits am I entitled to?
5. Who pays for the benefits?
6. Overlooked industrial injuries?
7. Unhappy with the way you are being treated?
8. My job stresses me out, is it covered by workers' comp.?
9. Can I be fired while I am on workers' compensation?
10. What If I am injured and can not return to my usual and customary job?
11. Are you Permanent and Stationary? Now what?
12. How do I settle my case ?.
13. What is my injury worth?
14. How much do attorneys charge for worker' comp cases?
HOW TO SELECT A LAWYER.
It is relatively easy to select a lawyer that is skilled in Workers' Compensation. Look for a lawyer that is a Board Certified Specialist. A Board Certified Specialist is a lawyer who has been certified by other lawyers as well as the State Bar of California. To become Board Certified the lawyer has passed a rigorous examination and has handled hundreds of cases, depositions and conferences; taken cases to trial; has written petitions for reconsideration and appeals; and participated in rehabilitation proceedings. You can check lawyer's credentials by contacting the local lawyer's referral service of the State Bar of California. Workers' Compensation is a difficult field. You should have the best. Your first step at getting the best is to retain a "Specialist". Moga and Hurley are Board Certified Specialists.
WHAT SHOULD I DO IF INJURED ON THE JOB?
There are three things to do if you are injured on the job: (1) REPORT THE INJURY to your supervisor immediately; (2) Request to see a DOCTOR; and (3) Request a workers' compensation CLAIM FORM.
Until you report the injury and the claim form is returned to your employer, there is no obligation to provide you with benefits. Many clients we see don'' report the injury until it becomes unbearable and they can not work. Although we are able to pursue benefits, the delay in reporting creates serious problems in getting the benefits started. Prompt reporting and immediate medical care ensures that the benefits will be started. You don't want to be off work with no income!
DO I HAVE TO RECEIVE MEDICAL TREATMENT FROM THE COMPANY DOCTOR?
The law says that you have a right to medical treatment. You must use the company doctor for a maximum of 30 days. After 30 days you can choose whatever doctor you want. If you do not like the company doctor, you can ask for a different doctor. The company must provide you a different doctor with in 5 days of your written request. If they don't - you can choose your own doctor.
You also have a right to pre-select your treating doctor in the event of an industrial injury. The personnel department of the person in charge of workers' comp should have the proper form. If they do not, We will e-mail you a form on request.
WHAT BENEFITS AM I ENTITLED TO?
You are entitled to four (4) basic benefits: (1) MEDICAL TREATMENT, the insurance company must pay all medical bills, including round trip mileage for any service, prescription or device that is reasonably required to cure or relieve from the effects of the injury,; (2) DISABILITY PAYMENTS, if you are unable to work while recovering, you get temporary disability payments. This is a partial compensation for wages lost; (3) PERMANENT DISABILITY SETTLEMENT, if the injury causes permanent impairment or restrictions, you are compensated in the form of a settlement based on the level of disability you are left with; and (4) VOCATIONAL REHABILITATION, if you can not return to your usual job, and the company has no alternate or modified work you can do, the insurance company pays to have you retrained in new employment.
WHO PAYS THE BENEFITS?
Many people think that the State of California pays workers' compensation benefits. THIS IS TOTALLY INCORRECT. By law, every employer must obtain insurance, similar to auto insurance or fire insurance that covers you in case you are injured on the job. The workers' compensation insurance companies are private insurers and have no affiliation with the State. When you get injured on the job an experienced claims adjuster will be controlling your fate. They know what they are doing and you don't. That's why you need experienced help behind you. Many clients are concerned that their employer is getting sued, again this is not the case. The insurance company handles the claim and the employer is rarely involved. A workers' compensation case is no more than filing an insurance claim.
OVERLOOKED INDUSTRIAL INJURIES?
There are many injuries that occur on the job that are overlooked by the injured employee. The following injuries are work related, but often overlooked: (1) HEARING LOSS, exposure to loud noises over an extended period of time, even with hearing protection, creates a gradual loss of hearing. You can receive compensation and a lifetime of medical checkups and hearing aids; (2) LUNG PROBLEMS, exposure to chemicals over an extended time creates injury to the lungs and breathing problems; (3) HEART ATTACKS, work stress can cause an attack even away from the job. If the kind of work you do creates stress that even just accelerates a heart condition it may be compensable; (4) HAND INJURIES, repetitive use of the ands in many occupation leads to wrist pain, or Carpal Tunnel Syndrome, numbness of the fingers, tingling of the hands, if you have these symptoms you need to see a doctor; (5) Other injuries that are common and compensable injuries are: FOOT INJURIES, HERNIAS, EYE INJURIES. If you are unsure, we can answer your question.
UNHAPPY WITH THE WAY YOU ARE BEING TREATED?
Is the doctor not listening to your complaints? Do you feel you are being rammed through the treatment? Not getting the treatment you think you should receive? Being sent back to work when you are still in pain? All too common complaints! You don't have to take it, fire the doctor and get someone that will listen and treat you. You have a right to a FREE CHOICE doctor. The insurance adjuster does not control whom you will see. YOU DO. If you do not know of a good doctor, we do.
Are you trying to handle the claim on your own? Getting the run around? The adjuster refusing you? Adjusters and their attorneys are professions doing what they know best. Would you get into a boxing ring with a professional fighter? You may last a round, but eventually you will be carried from the ring. I don't care how much research you do, your one case will not provide the training and experience to be effective and to know the fine points of the law. You need professional help.
If you are having problems with your lawyer, you can fire him or her and find another. Anytime you want.
MY JOB STRESSES ME OUT, IS IT COVERED BY WORKERS' COMPENSATION?
Workers' Compensation laws relating to work stress have changes significantly. Although not impossible, it is more difficult to obtain compensation for stress related claims. To be found work related, (1) you must be employed by the employer for at least six months; (2) ACTUAL EVENTS of employment must have caused at least 50% of the psychological problems; (3) if the stress was from a "violent act" the events must be at least 35% of all the psychiatric problems; (4) no compensation is payable if the claim is filed after notice of termination or lay-off, unless the stress was from sudden and extraordinary events, or the employer had notice of the injury before termination or lay-off, or medical records of treatment for job stress existed before notice of termination or lay-off; (5) no compensation is payable for lawful, non-discriminatory, good-faith personnel actions. The burden of proof is on the employee to establish the injury. Non-industrial stressors such as personal problems, financial problems or marital problems can affect compensability. You must be prepared to open your life to the scrutiny of the insurance company.
CAN I BE FIRED WHILE I AM ON WORKERS' COMPENSATION?
The basic rule is that if you are temporarily disabled on workers' compensation, the employer may not discriminate against you by termination or lay-off. The exception to the rule is that (1) if it is clear through medical evidence that you will be unable to return to your usual occupation, or (2) if because of business necessity your position must be replaced, your employer can replace your position. The burden on the employer is very high, they may have to hire a temporary employee rather than replace you. The Labor Code says that if the employer does discriminate against you because you were injured, such as termination, lay-off, loss of benefits, you can receive from the employer a penalty up to $10,000, plus back wages. You may have other remedies through the Americans with Disabilities Act.
WHAT IF I AM INJURED AND CANNOT RETURN TO MY USUAL JOB?
If the injury occurred after January 1, 1994, your employer can offer a modified or alternative position at up to a 15% pay reduction. If you refuse to accept, the insurance company may not be liable for further vocational services.
If the employer has no modified or alternate employment available, you must be provided vocational rehabilitation benefits. Vocational Rehabilitation is designed to get you back into the labor force either through direct placement or retraining to another occupation. Your skills will be assessed and you will help choose a new occupation and training school. You will be sent to school and while in school you will receive up to $245.00 per week in pay benefits. You will also be reimbursed for mileage. The bad news is that the insurance company does not have to spend more than $16,000 for all rehabilitation expenses including school, counseling and placement.
ARE YOU PERMANENT AND STATIONARY? WHAT NOW?
Done treating? Has the doctor told you he has released you from care? Received a letter from the insurance company telling you have to see a State doctor from a panel? You are making the transition from treatment to settlement. FIRST, you have a right to see the final medical report that outlines your disability. SECOND, you may not have to see another doctor!
The law says that if you disagree with the findings of the treating physician, you have a right to a second opinion. If you are not represented by an attorney, that second opinion must come from a panel of doctors that is provided by the State. BEWARE, the panel of doctors contains the names of insurance company oriented doctors. Without knowing the tendencies of the panel doctor could place your case in jeopardy. At this stage YOU NEED TO CONSULT AN ATTORNEY. A Workers' Compensation Specialist attorney can review the final report of the treating physician to determine if a second opinion is in your best interest. If the treating doctor is favorable you don't need a second opinion, if the treating doctor is unfavorable, the attorney can direct you to a doctor who is not affiliated with an insurance company. The future of your case hinges on the doctor report you choose. That doctor will decide the value of your case, the amount and kind of future medical care you receive, and your need for vocational rehabilitation. Don't expect the insurance company to be your friend. Remember the adjuster's job is to save his company money.
HOW DO I SETTLE MY CASE?
Bringing your case to a conclusion is one of the most important decisions you will make. Once permanent disability has been established there are two basic ways to conclude your case. Most cases are concluded through agreements between the parties. Trials are usually of complicated cases, disputes as to whether the injury is work related or big discrepancies in disability.
The first way to settle is by a release of all liability, you go your way they go theirs. This is called a COMPROMISE AND RELEASE. This settlement results in a cash settlement in an amount higher than the value of your disability because the insurance company pays a premium to buy out the future medical care. The amount of settlement depends on the level of your disability and the need for future medical care. Future medical is closed and you pay for medical care out of the settlement. The settlement is paid in a lump sum. Generally, this settlement is only available if you are no longer employed for the employer at which you were injured.
The second way to settle is to opt to have the insurance company pay for all future medical care. This settlement is referred to a STIPULATED SETTLEMENT. You will receive the value of your disability and you will be entitled to lifetime medical care for your work injuries. The down side is that the settlement id paid in payments like a structured settlement. You will receive between $140 and $170 per week, paid every two weeks until the settlement is paid out. If this is a large settlement, it could take years to receive all your money. There is no survivability to this money, if you die before you receive it all, no more payments are due.
Each case is different, there are other considerations to be addressed before making a final decision. Each person's needs are different. You should seek the advice of Certified Specialist attorney before making a final decision.
WHAT IS MY INJURY WORTH?
If your injury leaves you with permanent impairment or pain you are entitled to be compensated for that impairment or pain. This benefit is called PERMANENT DISABILITY. This term is misleading, it doesn't mean that you will never work again. In Workers' Compensation it means that you have lost some ability to compete in the open labor market against uninjured workers. Your permanent disability is expressed in a percentage. Permanent disability ranges from 1% to 99.75%. Let me give you some examples: If you loose a fingernail it may be worth 1%; loss of a thumb, 5% - 16%; loss of one eye, 35%; loss of one arm, 65% - 75%; loss of both legs, 100%; back disabilities can range anywhere, most common between 15% - 40%. The amount of money for a percentage is set by law and contained in the permanent disability charts in the Labor Code, some examples are: 1% is worth $420.00; 15% is $7,437.00; 35% is $25,438.00; 65% is $61,027.00; and 99% is $115,500. The vale of your case is important. You are entitled to the most disability created by your injury. A Certified Specialist attorney can help you achieve the best settlement. You should consult an attorney before make any final settlement decision.
HOW MUCH DO ATTORNEYS CHARGE FOR WORKERS' COMP CASES?
The final amount the attorney receives is approved by the Judge. Workers' Compensation cases are contingency fee based, that means the attorney charges a percentage of the settlement, plus costs. Generally attorneys charge and the courts approve a fee between 12% and 15% of the settlement amount. In workers' compensation cases the insurance company automatically deducts the court approved fee from the settlement and sends it directly to the attorney, the balance of the settlement is sent to you. Remember the attorney does not get paid for his work on your case until the case is settled. Certified Specialists usually charge no more than non certified attorneys, so why not get the best and hire only a Certified Specialist in Workers' Compensation Law.