What Types Of Money Benefits Are Available In Workers' Compensation?
 
I. Total Temporary Disability (T.T.D.)
Total temporary disability is 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 July 1, 1996 and before
January 1, 2003, the maximum A.W.E. is $735.00 so that the maximum benefit is
$490.00. The maximum rates are lower for injuries before that date and higher
after. For injuries January 1, 2003, through December 31, 2003, the maximum
A.W.E. is $903.00 and the benefit rate is $602.00. For injuries in 2004, the
maximum rate goes up to $728.00 and for 2005 it is $840.00.
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.
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.
II. Vocational Rehabilitation Maintenance Allowance (V.R.M.A.)
Because of "reforms" in 2003, this benefit is no longer available for injuries
on or after January 1, 2004.
V.R.M.A. is only payable after the doctor has found you permanent and
stationary. That means he has said that you have reached maximum medical
improvement and you can return to some type of work. If the limitations he gives
you prevent you from returning to the job you were doing at the time of your
injury on a permanent basis, then you may be entitled to vocational
rehabilitation maintenance allowance and vocational rehabilitation services
which will be described later.
VRMA has a lower maximum than TTD. The maximum VRMA benefit is only $246.00 per
week. If you are represented by an attorney this benefit may be reduced by
fifteen percent which is withheld to pay attorney's fees. In that case you would
only receive about $209.10 per week. However, you may supplement your VRMA
benefits up to the rate of your total temporary disability from your permanent
disability benefits. VRMA is not deducted from any settlement. Permanent
disability advances to supplement your weekly income up to the TTD rate are
subtracted from any settlement. Vocational rehabilitation services will be
described in a separate article.
III. Temporary Partial Disability (T.P.D.)
Temporary partial disability may be payable either in the case of vocational
rehabilitation (for injuries before 1-1-04 only) or in the case of temporary
disability. 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). This usually only occurs during temporary disability. However, if your
vocational rehabilitation plan involves some income to you such as on-the-job
training you may receive benefits calculated in the same manner.
IV. Permanent Partial Disability (P.P.D.)
The following discussion refers to injuries found to have been P&S or MMI before
January 1, 2005. There will be an entirely new system after that date.
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 and you are not in vocational
rehabilitation, 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 he 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 resolve 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 and are not receiving VRMA.
V. 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.
VI Death Benefits
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
made, 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. 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, 2005
This article is for general information, and not meant as
specific legal advice. You should always see an attorney for specific legal
questions.
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