Frequently Asked Questions
Who pays for workers’ compensation?
All employers are required by state law to purchase workers’ compensation insurance or to be licensed as being self insured. Workers’ compensation pays for temporary disability, permanent disability, and medical treatment related to your injury.
When do my temporary disability payments begin?
If your injury is covered by workers’ compensation, your first temporary disability payment is due within 14 days after your employer learns that:
a. you have a job-related injury or illness; and
b. your treating doctor says that you cannot perform your usual job.
When do temporary disability payments end?
Temporary disability payments end when:
a. Your treating doctor says that you can return to your usual job, whether or not you actually return to work; or
b. You return to your usual job or return to modified work at your regular pay; or
c. Your treating doctor says that you will never recover completely and you have reached a point of Maximum Medical Improvement, i.e., your condition is neither improving nor getting worse. If you were injured after April 19, 2004, your temporary disability is capped at 104 weeks.
Am I entitled to my salary while off work?
Most injured employees are not entitled to the entire amount of their salary while off work due to a work-related accident. Temporary disability is a replacement for salary. Temporary disability while an employee is off work is generally computed at two-thirds of the employee’s gross average weekly wage. However, present state law sets a maximum at $840.00 per week plus a cost of living adjustment for temporary disability benefits.
Do I get paid disability for each day I miss from work?
Not necessarily. You do not get paid for the first 3 days off work unless your disability lasts 14 days or more.
Can I work and receive temporary disability at the same time?
In most cases, an injured employee cannot work and receive temporary disability at the same time. In addition, an injured employee cannot work and receive State Disability Insurance (provided by the state for non-industrial or disputed industrial injuries) at the same time.
Why can’t I get medical treatment??
Every day our clients ask why their medical treatment is not being authorized.
The short answer is that the law in workers compensation with regard to medical treatment has become very technical, overregulated, and quite frankly complicated.
Every single case must be reviewed in the following manner:
1. IS THE INJURY DENIED?
If the injury being claimed is denied, workers compensation will not authorize any treatment until this issue is resolved. It is usually resolved after the injured worker has seen a neutral doctor, i.e. an agreed medical doctor or a panel qualified medical doctor.
2. IS THE BODY PART DENIED?
If workers compensation accepts that the injury caused is to one part of the body, but denies responsibility for another part of the body, they will not authorize any treatment for the denied body part until this issue is resolved. These resolutions are the same as number one above.
3. IS YOUR TREATING DOCTOR AUTHORIZED AS A PRIMARY TREATING PHYSICIAN, OR AN AUTHORIZED CONSULTANT OF THE PRIMARY TREATING PHYSICIAN
In a larger number of cases, when both the injury and the body part in question are accepted, the treatment still has to be by an authorized physician in a Medical Provider Network. Each workers compensation insurance carrier and or self-insured employer has the right to contract with a specific Medical Provider Network. The injured worker must carefully select from the proper network.
4. REQUEST FOR AUTHORIZATION FORM.
Each primary treating physician must make all request for medical treatment and prescriptions using a specific form created by the Workers Compensation Appeals board titled “Request For Authorization Form”. Failure to submit this form will probably result in no authorization of treatment. When this form is properly submitted, the date it is submitted is critically important because it begins the time periods listed below.
5. UTILIZATION REVIEW
If the workers compensation carrier does not authorize the treatment requested in the “Request For Authorization Form”, they have five business days to issue a “Utilization Review Determination”. These determinations are issued by separate companies with whom the workers compensation carrier has contracted. If the determination states that the requested treatment is not authorized, it must state the appropriate medical treatment guideline upon which this opinion is based.
6. INDEPENDENT MEDICAL REVIEW
Within 30 days of the receipt of a Utilization Review Determination denial, the injured worker, on a form prescribed by the state of California, which must be attached to the denial, must request Independent Medical Review. Independent Medical Review is performed by a company named Maximus with whom the state of California has contracted. When the request for Independent Medical Review is received by the Medical Unit of the State of California, under the current proposed regulations they have 15 days to determine if this case is eligible for Independent Medical Review. If there is eligibility, Maximus has 30 days to issue a written decision as to whether or not the treatment requested should be authorized. If the decision of Independent Medical Review denies the authorization, there are very few grounds for appeal. There is no statutory right to judicial review which means that you cannot go to court and present these issues to a workers’ compensation judge.
Every single request for medical treatment even if it is for aspirin or three physical therapy visits must go through the above process.
At the time of this article, more request for medical treatment than ever before are being denied. It has become a statewide crisis. I’m sure that from what you have read above, you can see why this has occurred.
While we want you to know that we are very carefully monitoring each step of the above procedures in your case, we also want you to know why it takes so long for treatment to be authorized if at all.
Can I choose my own doctor?
Unless you register your personal physician with your employer before the date of injury, your employer is obligated and has the right to send you to a doctor of their choice. As a general rule, the employer/insurance company has the right to medical control for the first 30 days after notice of injury. After 30 days, you may go to a doctor of your choice, unless the employer has contracted with a Medical Provider Network (MPN). Then, treatment is only allowed with a physician in the MPN.
What is a work-related injury?
A work-related injury includes any injury you sustain while you are on the job or performing any duty for your employer’s benefit.
- Single accident: dropping an object on an employee’s foot, cutting a finger or lifting a heavy object.
- Work activity extended over a period of time: lifting heavy objects and eventually noticing pain in the back
- Stress-related illnesses: heart attacks, nervous breakdowns and high blood pressure can be related to work stress. In order for stress to cause a psychiatric injury, it must be based upon actual work-related events and it cannot be the result of a lawful, good-faith, non-discriminatory personnel action.
- Disease and illness: overexposure to dust, fumes or chemicals may cause an employee to develop lung disease.
- An incident that aggravates a pre-existing injury or condition: if an employee has prior back problems or congenital defects, lifting while on a job might aggravate or further injure his back.
Questions About Filing a Claim
How much time do I have to report my injury?
The employee must give notice of injury to the employer within 30 days, unless the employer knew or should have known about the injury. Lack of notice will not disqualify an injured worker from receiving benefits unless the employer shows that it was prejudiced by applicant’s failure to disclose. The employer has the burden of proof to show prejudice.
If I file a claim, will I get fired?
In general, the law protects injured workers from any form of discrimination by an employer. There are exceptions to this rule that should be further discussed with an attorney who specializes in Workers’ Compensation.
What happens after I file my claim form?
Your employer must fill out and sign the “employer” portion of the claim form and submit the completed form to a claims administrator. This person handles claims for your employer and usually works for your employer’s insurance company. Your employer must give you a copy of the completed form within 24 hours after you filed it. Keep this copy. The claims administrator must make a written determination within 90 days as to whether they accept or deny your claim.
What should I do if I’m injured on the job?
- Report the accident to your employer/supervisor. Failure or delay in reporting the injury to the employer may result in a denial of workers’ compensation benefits.
- If applicable, you should report the accident to your union steward, in addition to your employer, in order to get proper advice.
- Demand medical treatment from your employer.
- Obtain a claim form from your employer.
Is an employee entitled to workers’ compensation benefits if the injury didn’t occur while the employee was working?
Yes. Workers Compensation is a no-fault system. An employee is entitled to workers’ compensation benefits for any work-connected injury or illness regardless of who was at fault.
Is an employee entitled to workers’ compensation benefits if their work-related injury was their fault?
Yes. EXAMPLE: If an employee is injured in the company parking lot on his way to or from work, or during lunch hour; or attending company-promoted activities, he may be considered to have sustained an injury on the job.
What rights do I have if I don’t recover from my injuries?
If your treating doctor says that you will never recover completely, you will be eligible to receive permanent disability benefits, lifetime medical care and Supplemental Job Displacement benefits.
How are workers’ compensation attorneys paid?
No applicant’s attorney workers’ compensation fees can be charged without approval from the court. Attorney’s fees are set by state law. Attorney’s fees are usually 15% of your final permanent disability award or lump sum settlement.
I was injured in another state, but I live in California. Can I file for benefits under California law?
Na. If you were hired in California and sent to work in another state, you fall within California jurisdiction; but
b. If you went to another state seeking work on your own while you live in California, you probably do not fall within California jurisdiction.
Am I entitled to Social Security Benefits?
To be eligible for Social Security Disability Benefits, you must be off work for 6 months and show that you are unable to perform any type of full-time work for at least 12 months. Benefits are not paid simply because you are unable to return to your former job. You must prove that you were unable to work at any job. People who file for Social Security Disability Benefits should be represented by an attorney. Our firm will provide an attorney for you.
What if I was injured by someone who is not employed by my employer?
Under the law, you (the injured worker) are the first person. Anyone who works for your employer is considered the second person. Everyone else is considered a third party.
Depending upon the circumstances of your injury, in addition to a workers’ compensation claim, you may also have a third party personal injury claim which is filed in Superior Court. Two common examples of third party claims involve automobile accidents while on the job and defective products used on the job. Although workers’ compensation is your exclusive remedy against your employer, there are certain instances when you may maintain a separate action against another party, i.e. if the driver of the other automobile was negligent, or if the manufacturer made a defective product.
If I don’t like my original attorney, can I change attorneys?
You are allowed to change attorneys at any time. When the case is resolved, the new attorney will divide the attorney’s fee in a pro rata method based on how much work was done by each attorney. Switching attorneys does not increase attorney’s fees. The attorney’s fees are the same whether you have one attorney or more.