There are six types of workers compensation money benefits available in California. This article explains what they are and how they work.
Total Temporary Disability (T.T.D.)
Total Temporary Disability benefits are payable when you are not able to do any type of work or when you are able to work only under temporary restrictions which your employer cannot provide. For example, the doctor says you can go back to work, but you have to sit down for fifteen minutes out of every hour, and your employer will not allow you to return on that basis. You would then be eligible to continue receiving T.T.D. if the restriction is temporary.
Temporary disability is paid at the rate of two-thirds of your average weekly earnings (A.W.E.). The maximum average weekly earnings considered varies, depending on the date of your injury. For injuries after January 1, 2008 the benefit rate is $916.33. For injuries in 2009, the maximum rate goes up to $958.01 and for 2010 it is $986.69.
If two-thirds of your earnings is more than the maximum you will only receive the maximum benefit rate for your injury year and no more. You are not entitled to T.T.D. if your employer has work that you can do and offers that work to you. For instance, if they find a sitting job for you when you cannot work on your feet, so long as this meets the doctor’s approval, then you would not be entitled to temporary disability benefits.
Total temporary disability should not be confused with S.D.I. or State Disability Insurance. Both benefits are referred to as “disability” but State Disability Insurance does not require that your disability be work-related. It is paid by the Employment Development Department (E.D.D.) of the State of California. Workers’ Compensation Benefits are payable by an insurance company for your employer or an administrator on behalf of your employer if your employer is self-insured.
Vocational Rehabilitation Maintenance Allowance (V.R.M.A.)
Because of “reforms” in 2003, this benefit is no longer available.
Temporary Partial Disability (T.P.D.)
If you are partially temporarily disabled (for instance if your doctor allows you to work for four hours rather than eight hours per day) than you are entitled to benefits proportional to your temporary disability. If your partial employment pays you less than the weekly maximum or less than your previous average weekly earnings, then you are entitled to two-thirds of the money you have lost (the difference between what you make now and what you made before).
Permanent Partial Disability (P.P.D.)
Permanent partial disability payments are often referred to as PDA’s or permanent disability advances. Permanent disability is calculated after you have become permanent and stationary (reached maximum medical improvement) and are able to return to work with some limitations. If you have no limitations, you are not entitled to any permanent partial disability. Usually there is a dispute as to the amount of permanent partial disability which is not resolved until the end of your claim. However, it often happens that it is agreed that you have some permanent partial disability and only the amount is in dispute. There are two types of permanent disability advances.
If you are not totally temporarily disabled, but have some permanent disability, then you are entitled to permanent disability advances in a scheduled amount which varies according to the date of your injury. For injuries before December 31, 2002, there were four different rates for P.D., from $140 per week for injuries under 15% to $230 per week for injuries over 70%. For injuries after that there are only 2 rates. For 2004 the rates are $185 for less than 70% and $230 for disability of 70% or more. For injuries in 2005 the rates are $220 and $270. For 2006 and after it will be $230 per week for disability less than 70% and $270 per week for disability of 70% or more.
The number of weeks for which you receive that amount is determined by the percentage of disability that you have. After January 1, 2005, however there is another complication. Once your Permanent Disability has been evaluated, there are now several different amounts that you might receive for the same percentage of disability, depending on whether your employer has more or less than 50 employees and on whether or not your employer offers you a job after you are able to return to work
If your employer has more than 50 employees and if he does not offer you a job to return to within 60 days of becoming permanent and stationary, then each payment of PD after that will be increased by 15%. The job offered has to last for 12 months. However, if your employer does offer a job (regular work, modified work or alternative work) then your payment is reduced by 15%. Modified and alternate work are required to pay at least 85% of your wages at the time of injury. This section does not appear to be limited to employers of over 50 employees. If your work is terminated by the employer while you are still receiving PD payments, then the 15% is added back into your payments. You don’t get this increase if you quit or if your employer has fewer than 50 employees.
For example, a worker with 20% disability, injured in 2005, would receive payments for 90.25 weeks, of either $220/wk ($19,855.00) or $253/wk ($22,833.25)or $187/wk ($16,876.25), depending on whether his employer had over 50 employees and whether he was offered a job or not. The weekly amounts would change (and so would the total amount received) if he took a job but it did not last the whole 90.25 weeks.
Sometimes there is another type of permanent disability advance. If it is clear that you are entitled to a substantial amount of money in the future for permanent disability, the insurance company will sometimes advance a lump sum of money to help you through an emergency. If this happens the money is also deducted from any permanent disability that you are found to be entitled to in the future. There is no law requiring the insurance company to advance permanent disability other than at the normal weekly rate after you have become permanent and stationary.
Total Permanent Disability (T.P.D.)
Total permanent disability is rare. That benefit is paid at the temporary disability rate for life. Total permanent disability is 100% disability. Certain conditions such as the loss of use of both arms or the loss of use of both eyes are presumed to be 100% disability. If you are 99.75% disabled, you are not 100% disabled and you will receive permanent disability advances as described above.
Death benefits are paid to your dependents if you die of your work injury. They will be the subject of a separate article.
When are benefits supposed to be paid?
Workers’ compensation benefits are to be paid every fourteen days. If they are paid late the insurance company is supposed to automatically increase the amount of the payment by ten percent. If your payments are mailed to the correct address every fourteen days, the insurance company is not responsible for a penalty. They will not be held responsible for problems with the U.S. Postal Service or the security of your mail box. I recommend that you save every envelope in which you receive checks and check the post mark to be sure that they are no more than fourteen days apart. Ideally you should save a copy of the check as well.
Some insurance companies include check stubs which tell the date the check was issued, the amount and what period it covers. You should definitely save all of these. If there is no stub and it is possible for you to do so, I recommend that you make a copy of the check before you deposit it or cash it. If you cannot copy it you should at least record the date of the check, the amount, and the dates covered by the check. For example, the check or the check stub will undoubtedly say something like “TTD 6-3-96 through 6-16-96.” You should create a log sheet for keeping track of your checks. You can use your calendar or call us and we will send you one.
Penalties, increased benefits, and automatic increases
The Labor Code provides for certain increased benefits to be paid to you under certain circumstances. Your regular check is to be automatically increased by 10% if it is paid more than 14 days after the previous regular disability check. That is why you should keep track of the post marks on your checks to see if they are paid late. The insurance company is supposed to make these payments automatically. The attorney does not get a fee on these increases if they are paid automatically.
There is a penalty of “up to 25%” payable on the delayed benefit if the court finds that the benefit was unreasonably delayed. A payment is not “unreasonably” delayed unless it is delayed a significant amount of time and there is no reasonable medical or legal doubt of your entitlement to the benefit. A court would probably not find that a one day delay in the payment of one temporary disability check was grounds for payment of a penalty. However, if your adjuster goes on vacation and forgets to pay your check for two weeks when there is no reason to doubt that you are entitled to it, then you might be entitled to a penalty. If the insurance paid the automatic 10%, they can deduct that from the 25% penalty. The really pathetic part of the current penalty law is that if the insurance discovers that they have “unreasonably” delayed paying a benefit, before you tell them, then they have 90 days to pay the benefit with only a 10% increase and they can avoid the 25% penalty.
Insurance companies almost never agree to pay these penalties. They are only paid after trial when a judge orders them to be paid or, sometimes, as part of a settlement. In the past, when penalties could be made against the entire class of benefit, instead of just the amount delayed it used to be that the more penalties the insurance was threatened with, the more likely we were to settle a case, but now the penalties are so minor that they will be more of a cost of doing business than a real threat to the insurance company.
Benefits are subject to a 50% increase if you are proven to have been discriminated against because of your workers’ compensation claim. For instance, if you have been fired because you made a workers’ compensation claim you would be entitled to a 50% increase in benefits. Also, if your injury is a result of “serious and willful” misconduct on the part of your employer you would be entitled to a 50% increase. Workers’ Compensation is a “no fault” system and negligence on the part of your employer or you does not change your recovery. Serious and willful misconduct is in the nature of a violation of a pre-existing OSHA order or something done on purpose to cause injury.
Remember, call your attorney if you have any questions.
© Robert S. Havens, 2012
This article is for general information, and not meant as specific legal advice. You should always see an attorney for specific legal questions.