Workers' Compensation in California
Employees who have been injured on the job in the State of California
are frequently confused by the vast array of laws and procedures involved
(1.) Determining whether or not they have a "case"
(2.) How to pursue a claim for workers' compensation
The information contained in this article is intended to be a general
summary of the various benefits that MAY BE available to an injured
worker pursuant to the workers' compensation laws in the State of
While each case is different, the following is an outline of how a case
normally proceeds through the system. In general, there is a big difference
between a "denied" case and an "admitted" case. The outline below deals
primarily with cases where the insurance company has admitted that an injury
has occurred. However, there may be disputes regarding other important
issues such as the nature and extent of the injury, the need for medical
treatment and the need for vocational rehabilitation. When the insurance
company "denies" that an injury occurred, many of the issues will have
to be litigated or the injured worker will have to agree to take something
less then the maximum allowable benefits that the law provides.
TEMPORARY DISABILITY (TD)
Temporary disability is paid at a weekly rate during the time the doctor
says the injured worker is unable to work due to the injury and there is
still a chance of improving the condition with medical treatment. The compensation
rate is two-thirds (66%) of the employees gross earnings, up to the maximum
amounts set by law. The current maximum rate is $490.00 per week(if the
injury occurred on or after 1/1/96). Depending on the date of injury, there
is a short waiting period for your first check. It usually takes about
2 weeks before the first payment is made.
If for some reason the insurance company will not pay temporary disability,
it is often possible to receive disability payments from the Employment
Development Department. These are called SDI (State Disability Insurance)
benefits. An injured worker cannot receive benefits from both the workers'
compensation carrier and from the Employment Development Department.
PERMANENT DISABILITY (PD)
An injured worker may be entitled to receive a permanent disability award
if the injury leaves her or him with any residual disability. This is not
payable until the medical condition becomes permanent and stationary, which
means the doctor has stated the condition has leveled off and will stay
substantially the same in the future. It does not necessarily mean that
the person has totally recovered from the injury. In fact, if the doctor
says there has been a total recovery, there would be no permanent disability
As soon as the treating doctor indicates that the person's medical condition
may be permanent and stationary or that the person can return to work,
arrangements should be made for you to be examined by a medical specialist
who deals with the type of injuries sustained. If the injured worker is
not represented by an attorney, the insurance company will send the injured
party a list of doctors to choose from. If the person is represented by
an attorney, the attorney will choose the evaluating doctor or make an
agreement with the insurance company to utilize an AME(see below). The
insurance carrier may also have the injured worker evaluated by a physician
of their choice.
AGREED MEDICAL EXAMINER(AME)
Sometimes the injured worker's attorney and the insurance company can agree
to utilize one doctor to examine the injured worker once she or he is permanent
and stationary. There are many benefits to using an AME. There are also
risks. One benefit is that relying upon one doctor to address the issues
eliminates the problem of trying to settle a case based upon two medical
opinions that are often in major disagreement. Another good reason is that
when using an AME, it is pretty much certain that the resolution of the
case will be based upon the medical issues as opposed to legal technicalities.
The risk involved is that both sides are bound to the doctor's opinion
unless it can be shown the doctor in some way made a mistake in his or
The consulting physician prepares a detailed narrative report setting
forth his or her opinion as to the nature and extent of any disability,
the need for further medical care and the ability to return to work. It
usually takes the doctor about 4 to 6 weeks to prepare and mail out the
SETTLEMENT OF THE CASE
Generally, a case cannot be settled until all of the medical reports are
prepared and mailed to all parties. The report will also be "rated" and
a percentage of disability will be assigned to the doctors opinions in
accordance with the rating guidelines of the State of California. These
rating guidelines are pre-set and uniform throughout the state. The "rating"
percentage is then converted to a monetary amount also in accordance with
a pre-set schedule.
If the doctor indicates that because of the injury, the employee will not
be able to return to their usual occupation or the job engaged in at the
time of the injury, the injured worker may be entitled to rehabilitation
benefits. A rehabilitation program includes services which are reasonably
necessary to return you to suitable gainful employment. A rehabilitation
counselor will be assigned and the counselor will assist in the preparation
of the program, taking into consideration the injury, past working experience,
transferable skills, motivation and labor market. While actively engaged
in the rehabilitation program, the injured worker will continue to receive
either temporary disability benefits or a rehabilitation maintenance allowance,
depending on the date of injury.
HOW THE SYSTEM WORKS
1. COURTS AND LAWSUITS
The Workers' Compensation Appeals Board is the trial court for all industrial
injuries involving your employer. This is an administrative law proceeding.
There are no juries. A workers' compensation judge makes all of the decisions
if the case goes to trial. If you are injured as a result of the fault
of someone who is not employed by your employer, you may be able to sue
that person in Civil Court, in addition to your action against your employer.
2. ATTORNEYS' FEES
Attorneys' fees are set by the Workers' Compensation Appeals Board and
are usually 12% to 15% of your award or settlement. Attorneys are also
entitled to a similar fee for assisting in arranging the rehabilitation
program. When there is no recovery on a case, there is no attorneys' fee.
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