Workers’ Compensation
Worker’s Compensation
SLOW PROCESS: You must have patience. Insurance companies do not respond quickly to letters and phone calls. It could take the insurance carrier two months before sending copies of your medical file. Furthermore, the insurance carrier has 90 days to accept or reject your claim.
Donner Lake
You should submit to your workers’ compensation insurance carrier mileage reimbursement at 55¢ per mile round trip for medical appointments, trips to the pharmacy or medical/legal evaluations. Keep copies of anything you send to the carrier and all bills paid by you. If your private health insurance, Medi-Cal, Medicare, or State Disability pay any of your bills, you must advise them of your workers’ compensation claim.
Most medical treatment will be provided by a Medical Provider Network (MPN) set up by the insurance carrier. Although you are still allowed to change doctors, the new doctor must be in the network. Chiropractic care, physical therapy and occupational therapy are generally limited to 24 visits per injury. Make sure your medical provider submits every bill through workers’ compensation, even if the insurance carrier is disputing your claim.
The insurance carrier has a right to question any medical treatment prescribed by your doctor. Requested medical treatment will be forwarded to the insurance carrier’s Utilization Review (UR) doctor to determine whether or not this treatment will be allowed. If UR denies the treatment request, you and your doctor have only 20 days to serve written objection to the UR determination. Your objection should simply state in writing that you 1) object to the denial, 2) request an appeal and 3) request reconsideration of the denial. You should also state your reasons therefore. If you or your doctor do not timely object, you may lose your right to receive the denied treatment.
If your disability check is late, you should contact the insurance carrier directly. If you are not able to work, you should immediately apply for State Disability Indemnity (SDI) at the Employment Development Department (EDD) even though you may be receiving temporary disability (TD). This is necessary to receive SDI in the future. You should not receive SDI and TD for the same time period. If you will not be able to perform gainful employment for at least one year, apply for Social Security Disability (SSD). In the event your SSD claim is denied, you may want to retain an attorney to file an appeal and take your claim to hearing.
You will most likely be evaluated by several doctors in order to determine your permanent disability. It is important to discuss with each doctor all of your physical limitations, restrictions of activities of daily living (ADL), and pain and stiffness. These doctors will prepare detailed reports after only a brief exam. Do your regular activities the day before you see each doctor so that the doctor can make an accurate assessment of your disability. Do not take pain pills, if possible, before the exam. Let the doctor see you as you really are. You won’t get a second chance.
Unlike a civil lawsuit, you are not entitled to pain and suffering damages or future lost wages. Your settlement will be based upon your permanent disability rating. The amount of settlement is set by law and corresponds to factors of disability stated in your medical reports. The judge has discretion to accept the opinions of any doctor, as long as the report is well reasoned. Due to recent changes in the law as well as several unfavorable court decisions, settlement amounts are totally inadequate. Please be aware that the insurance carrier may secretly videotape your activities.
Attorneys’ fees in workers’ compensation cases are set by law, normally 12-15% which will be taken out of your settlement or award at the end of your case.
Workers’ compensation is a no-fault system. Even if the employer or a coworker is at fault for your injury, you cannot bring a civil lawsuit against him or her. You may, however, file a civil lawsuit against another company or non-coworker who may be responsible for your injuries. A civil lawsuit must be filed within two years from the date of accident, or if against a governmental entity, within six months.
If, however, your employer is guilty of serious and willful misconduct (intentional acts) or has discriminated against you because of your work injury, you can file a separate Petition before the WCAB within one year of your injury or discriminatory conduct, seeking a 50% increase in your award. (not exceeding $10,000 for discrimination claims). If your employer discriminated against you in any way because of your injury, you may also file a civil suit in state or federal court. You should seek legal counsel immediately if you feel that your employer is guilty of serious and willful misconduct or has discriminated against you.
You should determine whether or not you are eligible for any additional employment benefits such as PERS, long & short-term disability, vacation pay, pensions and health insurance. TD benefits will be paid until your condition stabilizes, i.e., your doctor indicates that your condition will not substantially change and has reached maximum medical improvement (MMI).
TD is now limited to 2 years combined payments. Both temporary and permanent disability benefits are paid at a rate of 2/3 of your pre-injury average weekly earnings from all sources, subject to various maximum and minimum rates depending upon the date of injury.
Workers’ compensation is a slow and often inadequate process, so be patient. Benefits are quite low and the extent of medical treatment is limited. This is not a system of justice but merely a method to resolve disputes. We strongly urge you to voice your complaints to the Governor and your legislators. Without public complaints, the existing laws will remain inadequate and not provide fair compensation.
You should look at the following sites concerning the ongoing debate in the legislature to improve Workers’ Compensation benefits:
Problems with Worker’s Compensation
If someone else was at fault — other than your employer or co-employee
If someone other than your employer or co-worker was at fault in causing your injuries, you can file a separate third party civil lawsuit against the negligent party. This civil lawsuit would be in addition to your workers’ compensation claim and would be pursued at the same time. PLEASE REFER TO OUR SECTION ON BODILY INJURY CLAIMS TO SEE HOW TO PROCEED IN THE EVENT YOU HAVE A THIRD PARTY REMEDY.
The law prohibits an injured worker from making a double recovery in cases where an injured worker also files a civil lawsuit against a negligent third party. Assuming your employer is not at fault, the workers’ compensation insurance carrier has a right to recover from your civil lawsuit all money paid in connection with your workers’ compensation case. This means that all medical expenses, temporary and permanent disability benefits, mileage, medical/legal costs and vocational rehab expenses paid by the workers’ compensation carrier will be repaid to them out of your settlement. The compensation insurance carrier recovers its money first, before you are entitled to any settlement.
In addition to the workers’ compensation carrier recovering from your settlement money already paid out, they also receive a dollar for dollar credit or offset against all future benefits owed to you. The workers’ compensation carrier’s credit would apply to your net recovery in the civil lawsuit. If the negligent third party’s insurance liability limits are less than the amount of money already paid out by your workers’ compensation carrier, you will receive nothing from the third-party lawsuit.
For example, suppose that your civil lawsuit is settled for $20,000 and workers’ compensation has already paid out $10,000 in medical benefits, legal costs and temporary disability. The $10,000 would be subtracted from the $20,000 settlement, leaving a balance of $10,000. Costs and attorney’s fees would also be subtracted from your settlement. Assuming costs and fees of $3,700, you would receive a net balance of $6,300. However, the workers’ compensation carrier would now no longer pay you any benefits, including temporary disability, medical treatment, or your workers’ compensation settlement until after these future expenses have exceeded your $6,300 net recovery. You would be expected to use your own money for these expenses.
Depending upon the facts in your particular case, it may not be financially advantageous to bring a third party civil suit. Civil suits are much more difficult to prove than workers’ compensation claims. Furthermore, even though your deposition is taken in your workers’ compensation case and you have to be examined by an insurance doctor, these will all have to be repeated in the civil lawsuit. Each defendant in the civil lawsuit will retake your deposition, send you to their own insurance doctor and require you to answer numerous interrogatory questions and produce various documents.
You have only two years from the date of the accident in which to file a third party civil lawsuit. After that time, you will be forever barred from bring an action. Unlike a workers’ compensation settlement, you may recover pain & suffering damages in a civil lawsuit. Therefore, it is important to consider your options carefully.
YOU SHOULD DEFINITELY SEEK ADVICE FROM AN ATTORNEY IF YOU FEEL THAT YOU HAVE A CIVIL CLAIM IN ADDITION TO YOUR WORKERS’ COMPENSATION CLAIM.
If you have any questions about your case, please contact us at toffslaw@yahoo.com.