WORKERS’ COMPENSATION RIGHTS
WHAT IS AN INDUSTRIAL INJURY?
An industrial injury includes any injury you sustain while you are on the job or performing any duty for your employer’s benefit. This can include:
• 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: If work stress aggravates or causes an illness. Heart attacks, nervous breakdowns and high blood pressure can be related to work stress. If work stress contributes to such an illness, an employee may be entitled to workers’ compensation even though the actual attack did not occur at work.
In order for stress to cause a psychiatric injury, it must be based upon actual work-related events, work-related events must be the predominant cause of the injury, and it cannot be the result of a lawful, good-faith, non-discriminatory personnel action.
• Disease and illness: That are caused by, contributed to, or aggravated by the employment. For example: 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.
An employee may be entitled to workers’ compensation benefits even though the injury did not occur while he was actually working. EXAMPLE: An employee who is injured in the company parking lot on his way to or from work may be considered to have sustained an injury on the job; other considerations include lunch hour and company promoted activities.
AN EMPLOYEE IS ENTITLED TO WORKERS’ COMPENSATION BENEFITS FOR ANY WORK-CONNECTED INJURY OR ILLNESS REGARDLESS OF WHO WAS AT FAULT.
The Workers’ Compensation Appeals Board and the Courts of the State of California are continuously extending the types of accidents and illnesses which are covered by the Workers’ Compensation Act.
WHAT TO DO IN CASE OF AN INJURY:
• REPORT THE ACCIDENT: Failure or delay in reporting the injury to the employer may result in a denial of workers’ compensation benefits.
• IF THE EMPLOYER IS NOT AWARE OF THE INJURY, THEY ARE NOT OBLIGATED TO PROVIDE MEDICAL CARE. The injured employee should always report an accident to his union steward, in addition to his employer, in order to obtain proper advice.
• AN EMPLOYER, UPON RECEIVING NOTICE OR KNOWLEDGE OF AN INJURY, MUST PROMPTLY PROVIDE THE INJURED EMPLOYEE WITH AN “EMPLOYEE’S CLAIM FOR WORKERS’ COMPENSATION BENEFITS” FORM WITHIN 24 HOURS. This is also called a Notice of Claim form or simply, a claim form. A copy signed by the employer must be given to the employee.
MEDICAL TREATMENT AND EXPENSE
Under the provisions of the Workers’ Compensation Act of the State of California, an injured employee can see his own doctor at the employer’s expense* under the following circumstances:
(*As of January 1, 2004, the employer is only responsible for payment up to the amount indicated in the Medical Treatment Fee Schedule and only for medical treatment that is within the current medical treatment guidelines. These guidelines change periodically, but there are always guidelines in effect.)
• Starting with the first day of the injury, if the employee registers the name of his doctor with the employer before the date of injury. (The pre-designated doctor must be the employee’s regular physician/surgeon and the employee’s primary care physician who has previously directed the medical treatment of the employee and retains the employee’s records. Finally, the physician must agree to be pre-designated. )
• After 30 days following the injury. However, as of January 1, 2005, if the employer or insurance carrier has contracted with a Medical Provider Network approved by the Workers’ Compensation Appeals Board, the employer can require the injured worker to receive all care after 30 days at that network. The network must have physicians in all medical specialties that pertain to the injury/injuries being alleged, and the geographic location of the network must be within 25 miles of the injured worker’s residence. Note that the injured worker does have the right to select a physician within the designated network.
• After 30 days following an injury, if the employer does not have a Medical Provider Network, the employee can select their own free choice doctor.
• With the employer’s permission.
• If the employee has requested medical care and it is denied.
• In a true emergency.
• With the filing of a claim form and a demand for medical treatment, starting with the date of injury, the employer is required to provide medical treatment to the injured worker. This treatment shall continue until such time as the employer has either denied the injury, accepted the injury, or paid a total of $10,000 for medical care.
At all other times, the employer can control medical treatment.
“see accompanying article “Getting Medical Treatment Authorized”.
For dates of injury after January 1, 2005, injured workers will no longer have the right to select their own medical experts. All issues in dispute, whether it is the issue of injury at work, the need for medical treatment, temporary disability, permanent disability, vocational rehabilitation, and/or future medical treatment, shall proceed through the following process: the employer and the injured worker shall select an AME to resolve the dispute or the matter will be submitted to the Administrative Director of the Division of Industrial Accidents to select a three-doctor panel submitted to both the employer and the injured worker. Either side shall have the right to strike one of the three doctors. The remaining doctor is the one who will resolve the dispute.
TEMPORARY TOTAL DISABILITY
BENEFITS: Maximum temporary total disability benefits are as follows:
Dates of injury from 1/1/03 – 12/31/03: $602 per week if the weekly earnings are equal to or greater than $903, or may be computed by multiplying the weekly earnings by
Dates of injury from 1/1/04 – 12/31/04: $728 per week if the weekly earnings are equal to or greater than $1,092, or may be computed by multiplying the weekly earnings by
Dates of injury from 1/1/05 – 12/31/05: $840 per week if the weekly earnings are equal to or greater than $1,260, or may be computed by multiplying the weekly earnings by
Dates of injury on or after 1/1/06: $840 + a cost-of-living adjustment if the weekly earnings are equal to or greater than $1,260 + 2/3 of the cost-of-living adjustment, or may be computed by multiplying the weekly earnings by 66-2/3%.
An injured worker is not entitled to temporary total disability benefits during the first three days he is off work, unless:
• He is hospitalized.
• He is off work more than 14 days.
• When a doctor places certain restrictions on an injured worker (EXAMPLE: no lifting over 25 pounds, no repeated bending etc.) and there is no work available which will accommodate such restrictions, payment of temporary total disability will continue on a temporary partial disability basis unless the condition is declared permanent and stationary.
TEMPORARY TOTAL DISABILITY benefits will terminate when:
• The injured worker returns to work.
• The attending physician states that the injured employee is able to return to work.
• The injured employee’s condition reaches a point where it is not going to change for the better or worse. (This is called permanent and stationary.)
• For injuries sustained on or after the effective date of the recent reform legislation (4/19/04), temporary total disability shall not extend for more than 104 weeks within a period of two years from the date of commencement of temporary total disability.
• For injuries after 1/1/08, temporary total disability shall not be more than a total of 104 weeks with five years from the date of injury.
Permanent disability can be defined as the disability or impairment which remains after the employee has reached the point of maximum medical improvement. When the injured worker’s condition is permanent and stationary, usually this means the termination of further medical care; although in some cases medical treatment can continue for the balance of the injured worker’s life. In any case, the matter may be reopened for further medical care within five years of the date of injury.
Permanent disability ratings are provided under workers’ compensation law in the form of money payments, the amount of which depends upon a number of factors, including the injured worker’s age, occupation, and degree of disability. The disability rate can range from 1% to 100% depending upon how much the permanent disability interferes with the injured worker’s ability to engage in work or otherwise perform normal functions. For injuries sustained after (approximately) 1/1/05, permanent disability shall be based upon the injured worker’s lost earning potential. This is defined as a combination of an impairment rating performed through the American Medical Association Guidelines, plus a conversion factor to be determined by the Rand Corporation.
Permanent disability is paid in weekly payments. The greater the amount of the permanent disability rating, the greater the number of weeks of payments are made.
The amount of the payments depends upon the date of injury and the level of disability.
The range of permanent disability payments is as follows:
Dates of injury from 1/1/03 – 12/31/03: $185 – $235 per week.
Dates of injury from 1/1/04 – 12/31/04: $200 – $250 per week.
Dates of injury from 1/1/05 – 12/31/05: $220 – $270 per week.
Dates of injury on or after 1/1/06 to 12/31/2012: $230 – $270 per week.
Date of Injury: January 1, 2013 to December 31, 2013; $230-$290
Date of Injury: January 1, 2014 and continuing; $290
If an injured worker is permanently totally disabled, he shall receive the permanent disability payments equal to the weekly rate of temporary total disability benefits in effect on the date of injury. (EXAMPLE: If a person who is a maximum earner is injured during the period of 1/1/04 – 12/31/04 and is declared permanently totally disabled, he would receive $728 per week for the rest of his life.)
In addition to normal payments, permanent disability of 70% or more carries a life pension. This is paid once the permanent disability award has been paid and is usually paid at a rate that is substantially lower than the regular permanent disability payments.
Payments of permanent disability are payable in addition to any payments the injured worker may receive for temporary disability and are over and above the cost of his medical treatment. These payments are made either on the day after an injured worker’s condition becomes permanent and stationary or on the day after temporary disability stops, whichever comes first. These payments are made every 14 days until the total amount awarded is paid or until the date of death of the injured worker.
An injured worker may be entitled to a permanent disability award, even though he is able to return to his regular job.
NOTE: State disability insurance is currently paid at the same rate as workers’ compensation temporary total disability.
Where there is a dispute about whether or not the injury occurred at work or whether or not an injured worker is temporarily totally disabled, an injured worker can apply for and receive State disability benefits. However, in such situations, the injured worker cannot receive such benefits for more than 52 weeks.
When the workers’ compensation case is resolved, if it is determined that the person sustained a work-related injury or the person was temporarily totally disabled, the employer shall reimburse the State of California for the disability benefits paid and the injured worker’s account shall be reinstated.
SUPPLEMENTAL JOB DISPLACEMENT BENEFITS
A worker injured after 1/1/04 and unable to return to his usual and customary job within 60 days of the termination of temporary disability is entitled to a voucher in the range of $2,000 – $8,000 to be paid directly to the rehabilitation school. No other money is available.
The reforms that went into effect on 4/19/04 allow substantial incentives to employers to provide modified or alternate work for injured workers. An employer who offers an injured worker modified or alternate work for at least twelve months with a pay rate equivalent to 85% of his previous salary can receive a monetary incentive paid from funds available to the Administrative Director.
For injuries after January 1, 2013, the voucher is $6000. In addition the voucher creates eligibility for “The Return To work Supplement” which currently is valued at $5000
When an injury or illness causes or contributes to the death of an injured worker, a dependent spouse, and other dependents are entitled to recover death benefits.
It is important to understand that California does not award death benefits to heirs, only to dependents.
For injuries occurring during the period of 7/1/96 – 12/31/05, dependents of a deceased injured worker may receive the following:
1 total dependent $125,000
2 total dependents $145,000
3 or more total dependents $160,000
For injuries occurring after 1/1/06, dependents of a deceased injured worker may receive the following:
1 total dependent $250,000
2 total dependents $290,000
3 or more total dependents $320,000
The death benefit award also includes a burial expense up to $5,000.
Death benefits are paid at the maximum temporary disability. Payments are made until the full amount of the award is paid.
Workers’ compensation awards are paid on a weekly basis. However, an injured worker can receive a lump sum if the claim is settled by way of a Compromise and Release Agreement (C&R). All settlements must be approved by the Workers’ Compensation Appeals Board.
A C&R, when approved by the Appeals Board, closes the injured worker’s case completely, including terminating his right to future medical treatment.
When there is a dispute or disagreement between the injured worker and the employer concerning the injured worker’s entitlement to benefits, the body designated by California law to resolve such a dispute is the Workers’ Compensation Appeals Board. Although it is known as a board, this body is actually a court with complete jurisdiction to determine controversies arising under the workers’ compensation laws.
In every case, an injured worker has one year from the date of injury within which to file an Application for Adjudication of Claim with the Appeals Board. In the case of a specific injury, the date of injury is easily determined to be the date of the occurrence. However, in the case of an occupational disease, the date of injury is considered to be the date upon which the injured worker becomes disabled and knows, or should have known, as a reasonable person, that his disability was caused by his work. (EXAMPLE: A minor working in a very dusty environment for a long period of time develops a chronic cough. He stops work because of his condition, but it is not until three months later that he is advised by his doctor that his lung condition is due to the exposure of dust on the job. The injured worker then has one year from the date of his doctor telling him this within which to file an Application with the Appeals Board.)
In cases where the employer provides compensation benefits either in the form of temporary total disability benefits or medical treatment, the injured worker has one year from the last date of the provision of such benefits to file an Application. (EXAMPLE: After an injury, the injured worker is treated by the company doctor for two years. He would have one year from the last date he received such treatment to file an Application with the Appeals Board, which would give him, in effect, three years from the date of his original injury.)
Where benefits have been provided for an industrial injury, the injured worker has up to five years from the date of injury to file an Application with the Appeals Board alleging new and further disability. A permanent disability rating is considered to be new and further disability. (EXAMPLE: In an industrial accident, a finger is amputated. The injured worker is immediately disabled and receives workers’ compensation benefits for a three-month period. After he returns to work, the employer’s doctor continues to treat him for three additional months. Thus, at the end of a six-month period, all benefits stop. The injured worker has up to five years from the date of the original accident to file an Application with the Appeals Board alleging permanent disability on account of that injury.)
There are certain factors which may keep the time limit from running against the injured worker, such as mental incompetence, minority and others.
In order to avoid any possible problems because of a late filing of an Application, it is recommended that an injured worker seek advice from his union as soon as possible. Delay can be very costly.
In addition to the workers’ compensation benefits provided by law, an injured worker may be entitled to additional compensation for his injury if it has been caused by a negligent third party.
The workers’ compensation laws provide an injured worker with fixed benefits and make them payable to him without regard to fault. However, the workers’ compensation laws do nothing to impair or diminish an injured worker’s right to sue any person other than his own direct employer if he can prove that such “third party” was responsible for his injury.
Every incident in which an employee is injured should be closely examined to determine if there is the possibility of establishing that the injury was the result of some negligence on the part of a third person or party other than the employee’s own direct employer. (EXAMPLE: A worker at a manufacturing plant is injured by a piece of equipment that was defectively designed, manufactured, assembled, and/or installed. A civil claim can be made for damages under these circumstances against the designer, manufacturer, assembler and/or installer of the defective equipment, in addition to the employee’s direct employer.)
Ordinarily, the time within which a civil lawsuit must be filed against a third party is two years from the date of injury. If a public entity such as a city, county, school district, or state is the third party, a preliminary claim must be filed within 100 days from the date of the accident.
In any event, immediate investigation must be undertaken to determine the cause of the accident. Such investigation would include interviewing witnesses and obtaining their statements, as well as taking possession and control of available physical evidence.