- What am I entitled to? What are my rights?
- Can I be fired for reporting an injury?
- Can I file a civil suit against my employer?
- What if my employer harasses / fires me for getting hurt?
- Does the insurance company have to pay me right away?
- What if my employer has no insurance?
- Can I collect full salary while I am unable to work?
- What happens if the insurance company is late with a payment?
- Can I collect State Disability for a work injury?
- What if I can’t do my job anymore?
- Does my employer have to continue my health benefits while I am unable to work?
- What is Vocational Rehabilitation?
- How can an attorney help me?
- How much does an attorney cost?
- Have benefits increased recently? Am I eligible to get higher benefits?
- What are the rates for temporary/permanent disability?
- Can I select my own treating doctor?
- What is the Treating Doctor’s Presumption?
These are some of the benefits available for an injured worker in California.
1. What am I entitled to? What are my rights? – SB899 Changes
Temporary Disability (TD):TD is paid for the period during which the employee is recovering, and in the opinion of the treating doctor, is unable to work. TD ends when the injured worker is returned to work or when the disability becomes “permanent and stationary” (released by the doctor). The following qualify as being returned to work: light duty, modified, or full duty positions.
There is a three day waiting period between the injury and the beginning of payments. If disability extends beyond fourteen days or the worker has been off for fourteen days, the insurance company must either begin TD or send what is called a “delay letter” indicating that the claim is being investigated. TD payments equal two-thirds of the employee’s weekly gross income up to a maximum benefit rate. Note that other benefits and income can sometimes be included in gross income.
If your check is late, the insurance company may be liable for penalties, depending on the circumstances. Keep track of the amount of your payments and the period of time for which the checks cover, to be sure you are receiving all of your benefits on a timely basis. If possible, keep either a copy of the check before it is cashed or the check stub for your records.
Under SB 899, TD benefits are now limited to 2 years, with certain exceptions.
Permanent Disability (PD):
You are entitled to a PD rating if your injury leaves you with a disability. The amount will vary based on your disability level and income. This is not payable until your condition becomes permanent and stationary (P&S). You may receive weekly PD advances pending the conclusion or settlement of your case. These advances will be deducted (as credit to the carrier) from any settlement or award. Depending on your date of injury, the procedure when you become P&S can vary.
Pre -1991 – Your doctor makes the initial determination as to your level of disability. You may also be seen by evaluating doctors.
1991 – 1993 – The amount of Permanent Disability is determined by a Qualified Medical Evaluator (QME). If you are not represented by an attorney, you will be sent a list of three QME’s, called a Panel QME List. You will select a doctor from this list, and his opinion will be binding, unless you later hire an attorney, who will have the right to either send you to another QME, or agree with the insurance company to send you to an Agreed Medical Examiner (AME).
Post 1/1/94 – Your treating doctor should evaluate your level of PD. If you or the insurance company disagree, and you are unrepresented, you will be sent a Panel QME List. However, once you have seen the Panel QME, you will not be able to select another evaluator, even if you later decide to hire an attorney. You will be bound by the Panel QME’s decision. Therefore, it is very important, if you think you may wish to have an attorney, to contact the attorney before you have selected a Panel QME.
PD payments may now be either increased or decreased by 15%, depending on whether a modified position is offered to an injured worker, regardless of whether the position is accepted or not.
Medical Treatment:
You have the right to select your own treating doctor as long as certain procedures are followed. Do not begin seeing a doctor on your own without first requesting a change of physicians from the insurance company, in writing. Your first such request should be granted, but after that additional changes may be challenged based on whether they are reasonable. The Insurance Company also has the right to send you for a consultation, but they cannot force you to change doctors without following certain procedures.
While injured workers may still choose their own treating doctor after 30 days post injury, changes to the Labor Code now require that injured workers choose their doctors from a Medical Provider Network (MPN), if the insurance company has created one. This network consists of doctors that the insurance company has chosen to be part of their network. Additionally, injured workers who were treating with doctors outside of a MPN previously can be forced to change their treating doctor to a doctor inside the MPN. Some of the injured workers rights regarding doctors within a MPN can be complex, so please feel free to call us at (805) 485-5600 to discuss in more detail.
Mileage and Related Expenses:
You are entitled to be compensated for your travel expenses at up to 48.5 cents per mile for your round-trip mileage to health care providers for treatment, evaluation, physical therapy or picking up prescriptions related to your industrial injury. Therefore, keep track of your mileage to health care providers and any related expenses such as parking or toll fare. This money can be paid for expenses you have already incurred.
Future Medical Expenses:
Workers’ compensation cases are concluded by Stipulation and Award, Compromise and Release, or by trial. If a Compromise and Release is entered into, the worker is selling his right to future medical treatment. A Stipulation and Award or trial may entitle the employee to future medical treatment for the industrial injury at the employer’s workers’ compensation carrier’s expense. Any award following a Stipulation and Award or a trial may be reopened within five years of the date of injury to seek further benefits should your amount of disability increase.
Vocational Rehabilitation:
If your treating doctor or the doctors who evaluate you find that you are a Qualified Injured Worker (QIW), you may be entitled to Vocational Rehabilitation. A title of Qualified Injured Worker would mean that you are permanently unable, or likely to be unable, to engage in your usual and customary employment at the position in which you worked at the time of injury. Rehabilitation must be requested within five years of the date of injury or one year of any settlement, whichever is longer.
The purpose of rehabilitation is to return the injured worker to suitable gainful employment. The rehabilitation plan may provide for alternative work with the same employer, direct job placement assistance, on-the-job training or retraining. A person is paid vocational rehabilitation, temporary disability (VRTD), or vocational rehabilitation maintenance allowance (VRMA) benefits while undergoing rehabilitation. VRTD/VRMA pays 2/3 of your wages, up to a maximum TD rate. Please note that you may be eligible to supplement this payment with Permanent Disability advances up to your maximum TD rate. Feel free to call our office at (805) 485-5600 if you have any questions on this or any other information on this web site.
Recent changes to the VR system have eliminated the old system of VRMA and job retraining, depending on your date of injury. Under these changes, the new VR system is now a school voucher system where the insurance company will provide a Qualified Injured Worker who is not offered a modified position ‘school vouchers’ which are redeemable at select schools, generally post secondary schools. The amount of the voucher depends on the amount of disability and income. Like before, an injured worker may, instead of receiving the vouchers, sell their rights to the vouchers in exchange for a lump sum payment if they are represented by an attorney. Injured workers should call us at (805) 485-5600 to discuss in more detail.
2. Can I be fired for reporting an injury?
California law makes it illegal for an employer to harass, discriminate against or fire a worker for being injured or for filing a claim. California Labor Code Section 132a. This does not mean that this never happens. If you feel your employer has violated this rule, you can call the Information & Assistance office or call us at (805) 485-5600. Please note that a complaint under Section 132a must be filed within one year from the date of the violation.
3. Can I file a civil lawsuit against my employer?
With a few exceptions, the answer is no. Exceptions exist for when your employer is illegally uninsured, if you were injured by a power press which had been modified, or for certain intentional acts of the employer. Call us for more information at (805) 485-5600.
4. What if my employer harasses / fires me for getting hurt?
See Question 2
5. Does the insurance company have to pay me right away? – SB899 Changes
No. The law allows them to delay payment up to 90 days, if they decide to investigate your claim. When you have been off work 14 days, the insurance company must either begin paying benefits, or send what is known as a “Delay Letter” indicating they are investigating the claim. A decision to accept or deny the claim must be made within 90 days, or the claim is admitted by law. Labor Code Section 5402. While your claim is delayed, you may be eligible for State Disability
While an insurance company is still required to send delay letters if benefits are not paid within 14 days, the insurance company is now liable for all reasonable medical treatment, per the new ACOEM guidelines, up to a maximum of $10,000 while the claim is in delay until the claim is either accepted or denied.
6. What if my employer has no insurance?
It is against the law for an employer to not have Workers’ Compensation insurance. A state agency, the Uninsured Employers Fund (UEF) exists to pay claims to workers injured at an uninsured job. Bringing the UEF into a claim is tricky, but feel free to call us for help. Please note that if your employer was illegally uninsured, you may be able to file a regular Civil lawsuit in addition to pursuing Workers’ Compensation. Remember that the one year time limit for Civil lawsuits usually applies. Consult us for more information at (805) 485-5600.
7. Can I collect full salary while I am unable to work?
No, unless you have an employment contract or Union agreement that provides for full salary while you are off work. Most people are only eligible for Temporary Disability, which pays 2/3 of your pre-injury earnings, up to a statutory maximum which varies for different dates of injury (see temporary/permanent disability rates).
8. What happens if the insurance company is late with a payment? – SB899 Changes
The law requires insurance companies to make payments within specific time frames. If they are late they may have to pay you a penalty of up to 10% of the entire type of benefit that was late. This penalty can apply to past and future payments of that type of benefit, not just the late payment. Call the Information & Assistance office or call us at (805) 485-5600 if you have questions.
The recent passage of SB 899 has completely changed the process of receiving penalties for the unreasonable delay of benefits. Currently, an insurance company is liable for up to 25% of the amount of any late payment. However, the insurance company may avoid this 25% penalty by paying a self imposed 10% penalty of the amount of the late payment within 90 days of realizing they were late.
9. Can I collect State Disability for a work injury?
State Disability (SDI) is paid through the Employment Development Department (EDD) and is designed to provide payments to people who are medically unable to work for a short time, generally up to one year. It is similar to Temporary Disability. You cannot collect SDI and Temporary Disability at the same time. If you are hurt at work and your claim is put on delay, you can collect SDI during the delay. Make sure you tell EDD that your disability is because of a work injury but that you are not receiving benefits. If you start receiving Temporary Disability, you must notify EDD right away.
10. What if I can’t do my job anymore? – SB899 Changes
Once you are Permanent and Stationary, if the doctor decides you can no longer do your old job, you may be eligible for Vocational Rehabilitation (VR). Before you start VR, your employer has a chance to offer you modified duty that meets the restrictions placed by the doctor. If no duty is available, or the employer decides not to offer it, you go into VR. Vocational Rehabilitation is designed to get you back to work as quickly as possible, ideally into a job that pays within 15% of your old job. It may consist of job placement, schooling, or other employment options. Contact the Information & Assistance office call us at (805) 485-5600 for more information.
Recent changes to the VR system have eliminated the old system of VRMA and job retraining, depending on your date of injury. Under these changes, the new VR system is now a school voucher system where the insurance company will provide a Qualified Injured Worker who is not offered a modified position ‘school vouchers’ which are redeemable at select schools, generally post secondary schools. The amount of the voucher depends on the amount of disability and income. Like before, an injured worker may, instead of receiving the vouchers, sell their rights to the vouchers in exchange for a lump sum payment if they are represented by an attorney. Injured workers should call us at (805) 485-5600 to discuss in more detail.
11. Does my employer have to continue my health benefits while I am unable to work?
No. The U.S. Supreme Court has ruled that Federal law pre-empts state law, and so if your health care plan is one formed under Federal ERISA rules (which most are) then so long as your employer complies with the requirements of ERISA the termination of your health coverage is probaby legal. Call us for more information.
12. What is Vocational Rehabilitation? – SB899 Changes
Once you are Permanent and Stationary, if the doctor decides you can no longer do your old job, you may be eligible for Vocational Rehabilitation (VR). Before you start VR, your employer has a chance to offer you modified duty that meets the restrictions placed by the doctor. If no duty is available, or the employer decides not to offer it, you go into VR. Vocational Rehabilitation is designed to get you back to work as quickly as possible, ideally a job that pays within 15% of your old job. It may consist of job placement, schooling, or other employment options. Contact the Information & Assistance office or call us at (805) 485-5600 for more information
As described in questions above, recent changes to the VR system have eliminated the old system of VRMA and job retraining, depending on your date of injury. Under these changes, the new VR system is now a school voucher system where the insurance company will provide a Qualified Injured Worker who is not offered a modified position ‘school vouchers’ which are redeemable at select schools, generally post secondary schools. The amount of the voucher depends on the amount of disability and income. Like before, an injured worker may, instead of receiving the vouchers, sell their rights to the vouchers in exchange for a lump sum payment if they are represented by an attorney. Injured workers should call us at (805) 485-5600 to discuss in more detail.
13. How can an attorney help me?
Attorneys help make sure you get all the benefits you are supposed to receive. They handle all contact with the insurance company, evaluate the disability reflected in the medical reports, can arrange medical evaluations and handle problems that may arise. An attorney will negotiate the best settlement possible (ideally), but it is then your decision whether to accept. If no informal settlement can be reached, the attorney will file for a hearing and represent you at the Workers’ Compensation Appeals Board (WCAB). Call us at (805) 485-5600 for more information.
14. How much does an attorney cost?
Nothing up front. Workers’ Compensation attorneys work on a contingency fee basis, taking a percentage (usually 12% – 15%) of your final settlement.
15. Have benefits increased recently? Am I eligible to get higher benefits? – SB899 Changes
Yes. Both Permanent Disability and Temporary Disability benefits have increased for all injuries after 1/1/03. See our Benefit Chart for the actual rates. Even if your date of injury is prior to 1/1/03, you may be eligible for increased Temporary Disability. If you have been on Temporary Disability benefits for two years or more, you are eligible to receive the current maximum Temporary Disability rate, or 2/3 of your pre-injury earnings, whichever is less. Call our office for more information.
Under SB 899, TD benefits are now limited to 2 years, with certain exceptions for specific types of injuries
16. What are the rates for temporary/permanent disability?
Click here for California temporary/permanent disability benefit rates.
17. Can I select my own treating doctor? – SB899 Changes
Maybe. Under SB 899, if the insurance company has set up a Medical Provider Network, (MPN) they can force you to choose from within that network, even if you have made a written predesignation of a different doctor. There can be certain expections to this, call us for details. If they have not done so, then the old rules apply, and you can select your own doctor 30 days post injury. There are additional aspects of this rule which are too complicated to note here, please call our office for further information.
While injured workers may still choose their own treating doctor, changes to the Labor Code now require that injured workers choose their doctors from a Medical Provider Network (MPN), if the insurance company has created one. This network consists of doctors that the insurance company has chosen to be part of their network. Additionally, injured workers who were treating with doctors outside of a MPN previously may be forced to change their treating doctor to a doctor inside the MPN. Some of the injured workers rights regarding doctors within a MPN can be complex, so please feel free to call us at (805) 485-5600 to discuss in more detail.
18. What is the Treating Doctor’s Presumption? – SB899 Changes
For injuries from 1/1/94 – 12/31/02, the primary treating physician (PTP) had a presumption of being correct. In other words, if your PTP said one thing, and the insurance company’s evaluator said something else, the PTP was almost always followed. This could be good or bad, depending on whether the PTP favored the injured worker or the insurance company, since the presumption also applied to employer designated doctors who were selected by the employer during the first 30 days after the injury, when they control treatment if there has been no pre-selection by the injured worker (See Can I select my own treating doctor). For injuries after 1/1/03, there is no longer a presumption of correctness attached to the PTP unless the PTP was pre-selected prior to the injury and actually provided some treatment to the injured worker. This is an evolving and complicated area of the law, please call our office if you have questions.
The treating doctor’s presumption has been repealed. There is no more presumption of correctness by the treating doctor for any date of injury.
Law Offices of Cason White 