Unlike personal injuries, workers' compensation cases are decided on a "no-fault" basis. If you have an injury or illness caused by your job, you may be entitled to workers' compensation benefits without proving fault. Your injury or illness may result from either a single or specific incident, or from repeated, continuous or prolonged exposure to activities or substances at work.
If you prove your disability is work-related, your benefits are provided for you at your employer's expense. With only a few exceptions, all California employers are required to have workers' compensation insurance for work-related injuries and illnesses. Most injured workers receive workers' compensation from their employer's insurance company. Others receive benefits directly from employers which are legally self-insured.
The California Labor Code provides for various workers' compensation benefits. As a courtesy, we provide below a summary of some of your California workers' compensation rights. Remember: without counsel, obtaining some or all of these benefits without a fight is usually very difficult and frustrating. Your benefits and rights include, but are not limited to, the following:
In Cases of Uncontested Injuries
All medical treatment "reasonably required to cure or relieve from the effects of the injury", including "medical, surgical, chiropractic, and hospital treatment, nursing, medicines, medical and surgical supplies, crutches, and apparatus, including orthopedic and prosthetic devices and services". (Labor Code § 4600)
Choice and Change of Physician
In an admitted case, if a dispute arises as to a permanent disability rating, need for continuing medical care, permanent and stationary status, your entitlement to vocational rehabilitation services, the extent and scope of medical treatment, and/or the existence of a new and further disability, you may obtain one comprehensive medical examination from either a qualified medical evaluator or agreed medical evaluator. (Labor Code §§ 4061, 4062). Reimbursement for your medical-legal expenses is determined per the Medical-Legal Fee Schedule found in Title 8 Cal. Code Reg. Section 9795.
Incident to reporting for medical examinations only, you are entitled to all reasonable expenses of transportation, meals, and lodging, together with one day of temporary disability indemnity for each day of wages lost in submitting to the examination.
Temporary Disability ("TD") Indemnity:
During the time you are temporarily off from work on total disability, TD checks are paid to help recoup your lost wages, and are supposed to be paid 14 days after the employer's knowledge of your injury. (Labor Code § 4650(a)). Generally, your TD rate is calculated based on 2/3 of your average weekly earnings. (Labor Code § 4654.) Your TD rate is also calculated based on your date of your injury. (Labor Code § 4656).
Permanent Disability ("PD") Indemnity
After your condition has been declared permanent and stationary, PD checks to compensate you for your permanent inability to compete in the open labor market are supposed to be paid within 14 days after the last payment of TD. (Labor Code § 4650(b)). Generally, your PD rate is also calculated based on your average weekly earnings and date of your injury.
Vocational Rehabilitation Services and Maintenance Allowance
If you are no longer able to do your old job, and your employer does not offer you another, you may be entitled to vocational rehabilitation, which is designed to help injured workers return to work. If you qualify, a plan to return to work will usually be developed by a vocational counselor or with the supervision of your attorney.
Generally, you are only entitled to one plan, which must take place within California and must not exceed 52 weeks and $16,000.00. If you do not accept vocational rehabilitation, you cannot trade this benefit for cash. If you accept it, you may be entitled to certain services and benefits, including:
- Vocational rehabilitation maintenance allowance (VRMA) of up to $246 per week;
- transportation allowance at a specified rate;
- specific costs required for your plan, such as costs of retraining, supplies, tools, equipment, uniforms, tuition, and student fees;
- reasonable additional living expenses, such as temporary relocation costs like meals and lodging during evaluation or training; and
- reasonable relocation expenses if permanent relocation is required.
Automatic 10% penalty: To be self-imposed by the insurance carrier for any late TD, PD, or VRMA payment. (Labor Code Section 4650(d)).
1. Kerley vs. WCAB (1971) 4 Cal. 3d 223, 230 [Defining that an "unreasonable" delay is one in which there is a genuine medical or legal doubt as to whether a benefit is due);
2. Gallamore vs. WCAB (1979) 44 CCC 321 [Holding that there is a right to multiple 10% penalties despite the arguably minor nature of the amounts involved];
3. Rhiner vs. WCAB (1993) 58 CCC 172 [Holding that the 10% penalty is calculated on the full amount of all past, present and future benefits without deduction for timely pre-award payments];
3. Christian vs. WCAB (1997) 62 CCC 576 [Holding that while there is no right to pre-award successive penalties unless there is an intervening award or other legally successive event, you still have the right to pre-award multiple penalties per the Gallmore rule and post-award successive penalties).
An Expedited Hearing
When a dispute develops regarding medical treatment, TD, vocational rehabilitation services, or an appeal from a rehabilitation decision, an expedited hearing may be held to determine these benefits within 30 days after a Declaration of Readiness is filed. (Labor Code § 5502(b); Title 8, Cal. Code of Regs, Section 10136 )
As between the parties, costs may be allowed. (Labor Code § 5811) Monetary Sanctions: Reasonable expenses, including attorneys' fees and costs (sanctions), may be imposed against a party that has acted in bad-faith or displayed frivolous tactics designed solely to cause unnecessary delay. (Labor Code § 5813).
In Cases of Contested Injuries
Sixty (60) days after your employer's knowledge of your claim, you are entitled to reimbursement for medical-legal expenses reasonably, actually, and necessarily incurred including medical evaluations, diagnostic tests (e.g. MRI's, EMG/NCS's, etc.), and interpreters' services incidental to the production of a medical report. (Labor Code § 4621).
This includes any costs and expenses incurred by or on behalf of any party for X-rays, laboratory fees, other diagnostic tests, medical reports, medical records, medical testimony, and interpreter's fees for the purpose of proving or disproving a contested claim. (Labor Code § 4620) If a medical evaluation is required, and if you are represented by an attorney, you may select a qualified medical evaluator to conduct a comprehensive medical-legal evaluation to evaluate the issues in dispute. (Labor Code § 4060).
Reimbursement for your medical-legal expenses is determined per the Medical-Legal Fee Schedule found in Title 8 Cal. Code Reg. Section 9795.
State Disability Insurance Benefits
During the time you are temporary totally disabled from work, even though your case is denied, you are still entitled to receive California State disability insurance (SDI) benefits from the Educational Development Department of California (EDD) to the extent certified by your treating physician. (Uninsurance Insurance Code § 2706.2) Computation of SDI benefits is found in Un Ins. Code § 2707.5). SDI checks may last for up to one year, or to the point where your SDI funds are exhausted, whichever occurs first. (Un Ins. Code §§ 2652-2658, 2653).
A person applying for unemployment compensation disability (UCD) benefits must agree and periodically show EDD he/she is ready willing and able to work in order for UCD benefits to continue. Accordingly, for injuries occurring after January 1, 1994, an injured worker is not entitled to receive both UCD and PD benefits contemporaneously (for the same injury for the same period of time). (Labor Code §4904; Un Ins. Code § 2629)
In Cases of Uncontested Deaths
Note: An immediate attorney consult is highly recommended for all death claims to discuss in detail all of your rights as dependents of a deceased worker.
In Cases of an Uninsured Employer
If your employer does not have workers' compensation insurance and is not self-insured, your benefits may be paid through the Uninsured Employers Fund. You may also have a civil claim directly against your employer and/or a third-party claim. It is important to contact legal counsel if you suspect that your employer is illegally uninsured.
In Cases of Federal Employers
None of the above applies; federal employees and persons covered under federal legislation have other benefit programs and should contact the United States Dept. of Labor.