A Brief Description Of Workers Compensation Law
WHAT IS WORKERS COMPENSATION?
Workers Compensation is a no-fault system for injuries connected with
your employment, whether they are specific injuries or a disease or
disabling condition. Your employer is required to pay for Workers
Compensation Insurance to cover all its employees. You are not required
to be represented by an attorney to make a claim but remember that your
employer and its Insurance Company will be represented, at least, by an
experienced claims adjuster and probably, also, by a competent attorney.
In case of a dispute, you too should be properly represented or you will
be at a serious disadvantage.
WHAT BENEFITS ARE AVAILABLE?
Under Workers Compensation Law you are entitled to certain benefits.
They fall into the following categories:
A. Medical benefits - Medical benefits include all medical and hospital
benefits reasonably necessary to cure or relieve the injury. This
includes reimbursement at 34 cents per mile for travel to and from the
doctors office. If your employer or their insurance company has not set
up a Medical Provider Network, then your employer has a right to send
you to a doctor of his choice for the first 30 days of treatment but you
have a right under certain conditions to change doctors. After January
1, 2005, if your employer or their insurance company has established a
Medical Provider Network, you will be required to get all medical care
from that network, although you may be entitled to change doctors within
the network. Any time you have a work-related injury which requires
medical attention, you will be eligible for these benefits and they can
be awarded into the future as needed. If your employer delays in
determining whether to admit that you were injured at work, they will
still be responsible for medical care up to $10,000.00 while they
decide. If they deny you were injured at work, they are not responsible
for medical care unless it is later determined by the court that your
injury was caused by your work.
B. Temporary Disability - If your injury or condition requires you to
miss more than three days of work or causes hospitalization, you should
receive temporary disability benefits. 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. You will need medical proof that you are unable to work. These
benefits are usually paid bi-weekly.
C. Permanent Disability - If your injury or condition results in some
permanent impairment,, you will be eligible for Permanent Disability.
The amount is determined by a complex formula which reduces the
disability as described by the doctor to a percentage and then raises or
lowers that percentage depending on your age and occupation. There is a
certain dollar amount payable for each percentage, ranging from $420.00
for one percent to $159,677.50 for 99.75 percent. (More for injuries
after January 1, 2004.) If you are one hundred percent disabled for life
you will receive your temporary disability rate for life. It is possible
to have a ratable permanent disability and still be able to return to
your old job. Permanent disability benefits are paid at the rate of
$140.00 to $270.00 per week (depending on the amount of disability and
the date of injury) paid bi-weekly until the dollar amount is paid. For
instance one percent is paid off in three weeks and 99.75 percent is
paid off in 694.25 weeks (for injuries before 1/1/04). Bi-weekly
advances should be paid as soon as you are no longer eligible for
temporary disability if the insurance knows you have some permanent
disability. For injuries on or after January 1, 2005, your permanent
disability amount will vary depending on whether your employer offers
you a job to return to which is either your usual job or a modified or
alternate job that pays within 85% of your usual job. If the employer
has more than 50 employees and offers you job, you get a 15% reduction
in your permanent disability, whether or not you take the job. If he
does not offer a job, you get 15% more.
D. Vocational Rehabilitation - If you were injured before January 1,
2004, and if your injury or condition, by itself or together with some
other condition, prevents you from returning to the kind of work you
were doing when you were injured, you are entitled to Vocational
Rehabilitation Assistance including training and placement assistance in
a new field of work. You will be paid at your temporary disability (TD)
rate while you are participating in this program if your TD rate is
below $246.00 per week, but $246.00 per week is the maximum weekly
benefit for Vocational Rehabilitation. You may receive permanent
disability payments during this time only to supplement your payments up
to your maximum temporary disability rate. These advances above $246.00
per week will be deducted from your final award of Permanent Disability
or your settlement. All reasonable expenses, including mileage to and
from training will be paid by the insurance company. Benefits including
training, cost of counselors and everything in Vocational Rehabilitation
are strictly limited to a total of $16,000.00 for injuries after 1-1-94
so there will be no long expensive plans. Vocational Rehabilitation
benefits were eliminated for all injuries which occur on or after
January 1, 2004. If you were injured after 1/1/04, you are eligible for
a voucher which can only be used for a training school. The amount
depends on your level of disability.
E. Death Benefits - Certain persons dependent for support or partial
support on a deceased employee may be entitled to Death Benefits if the
death was related to employment. It is not necessary that the death
occur at work if the condition which caused the death is job related.
F. Compensable Consequences -If your initial work related injury causes
any other problems, you are entitled to all benefits for these
subsequent "compensable consequences" just as if they occurred at work.
Some examples are (1) Psychological depression caused by severe pain of
your work injury, (2) A fractured wrist which occurs in a fall caused by
your industrially injured knee giving way, (3) Injuries incurred in an
automobile accident on the way to the doctor for your work injury, (4)
Injuries caused by medical malpractice of a doctor treating your
industrial injury, (5) A back injury caused by limping because of your
industrial knee or ankle injury. Keep this in mind if any thing like
this happens to you.
NOT THE SAME AS A CIVIL CASE
All of the above are "benefits" and are not the same as the "damages"
you receive in a non-industrial "civil case" like a car accident. The
benefits are usually less than the award in other type accidents but the
Workers Compensation System has the advantage of being a no-fault
system. Therefore, you do not need to prove the accident or injury was
anyone else's fault. You can recover if you tripped over your own feet,
if it happened at work.
WHEN TO APPLY
You should notify your employer as soon as you can after you are injured
or after you discover that your condition may be related to your job. At
that time you should ask your employer for a claim form. You complete
lines 1 through 7 and sign on line 8. The employer completes the rest
which gives you the name, address, and phone number of the Workers
Compensation Insurance Company which covers your injury. If your
employer refuses to give you a claim form, consult your attorney. For
injuries before 1/1/90 and after 12-31-93 an application must be filed
with the Workers Compensation Appeals Board within one year after the
injury or after the last treatment furnished by your employer. If you
received some benefits and your condition gets worse you may be able to
re-open your case up to five years after the date of injury. If there is
any question about the time limits, do not hesitate to consult your
attorney.
RELATED CIVIL CLAIMS
It may be that a defective product (chemical, machine, etc.) or a
negligent "third party"(not employed by your employer) is a cause of
your injury. In this case, you are entitled to your workers compensation
benefits and to a civil claim or lawsuit against the other parties.
However, in this case, the Workers Compensation Insurance Company may be
entitled to reimbursement from your "third party" claim. Your attorney
can explain this and help to arrange the most favorable settlement for
you. If you believe that you may have been injured as a result of any
defective product or the negligence of any one not employed by your
employer, you should be sure your attorney knows about this possible
civil claim.
DOCTORS
In order to prove your permanent disability claim your injury must be
described in the terms used by the Workers Compensation Board to "rate"
permanent disability. For this reason, you may be referred by your
attorney and the insurance company to an agreed doctor who will examine
you and write reports. This doctor may not be the same doctor who has
provided your treatment. If they cannot agree, or if you do not have an
attorney, you may be required to request a list of three doctors from
the state. You(or your attorney) and the insurance company will each be
allowed to strike one name from the list. The remaining doctor will
provide an alternate opinion to that of your treating doctor. It is
important that you give an accurate history of your injury and
disability to each of the doctors you see because it is from these
reports that the determination of the dollar amount of your permanent
disability benefits is calculated. Before attending any such exam you
should make notes for yourself so you don't forget any important facts
or symptoms and you should briefly discuss these notes with your
attorney.
ADDITIONAL BENEFITS AND PENALTIES Your attorney can describe for you
other features of the Workers Compensation laws which include penalties
recoverable by you from your employer for discriminating against you
because you were injured or filed a claim, for committing serious and
willful acts which endangered the safety of his employees, and for
failing to have Workers Compensation Insurance. The Insurance Company or
the uninsured employer may be liable for penalties if they unreasonably
delay payment of any benefits to you. There are automatic Penalties of
10% for failure to pay benefits on time. Normally you should receive
your check every 14 days. You should save the envelope from each to
confirm whether the next check was mailed on time.
SETTLEMENT OR TRIAL
Many cases are settled without trial. The settlements are of two kinds.
In a Compromise and Release, you give up all rights to future benefits
and settle for a lump sum. This is usually only possible if you are no
longer employed by the employer you are settling with. The other form of
settlement is to agree to the same terms that judgment would probably
take. This is called a Stipulated Findings and Award and you generally
retain your future benefits and the Permanent Disability benefits are
paid bi-weekly as is the case when there is a trial and an award from
the judge. The trial of a Workers Compensation case is not as formal as
a civil trial and the judge is required to interpret the law liberally
in favor of providing benefits.
ATTORNEYS FEES
The attorneys fees are set by the Workers Compensation Judge in each
case. In the Los Angeles area they are generally 15 percent of your
award. They are deducted from your award. The attorney will be paid
directly by check from the Insurance Company just as you are. Payment to
the doctors will be separate and not deducted from your settlement. You
will not be required to pay any money to the attorney out of your own
pocket. There are no filing fees in a Workers Compensation case. Workers
Compensation is a complex and specialized field of the law. This
memorandum attempts to touch on the main points but your attorney can
provide you with an explanation of that law as it affects your
particular injury.
© 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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