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Workers Compensation F.A.Q.

How do I get workers' compensation benefits?

Should I wait to hire an attorney if the insurance company is providing all benefits?

How long can I expect my medical treatments to be the responsibility of the employer or insurance company?

Does my employer have the right to terminate my contract if I am out of work on disability?

My doctor has released me to light work duty, but my employer is refusing to provide light work. What happens now?

How are workers compensation cases settled?

What does it mean if my doctor determines my condition to be permanent and stationary?


How do I get workers' compensation benefits?

Orange County workers compensation benefits are designed to cover any worker who becomes ill or sustains an injury while on the job. The unfortunate truth, however, is that while many workers don’t receive their total benefits, other entitled workers are denied or lose their rights entirely.

Work-related illness or injury should always be reported to the employer immediately. To do otherwise may cause delay or even denial of Orange County workers compensation benefits. Once the incident is reported, the employer must provide the ill or injured worker with a claim form within one day of the report.

Upon completion and submission of the claim form, injured workers who are diagnosed with temporary disabilities should receive the initial indemnity benefit within 14 days of the acknowledged injury. Employers reserve the right to investigate injury claims in the case of a dispute, and have 90 days in which to deny the worker’s claim. If the injury claim is not denied, the worker will then qualify for Orange County workers compensation benefits.

If time off is required, injured and ill workers should always be sure to obtain a written off work order from their treating physician. Treating doctors should also maintain contact with employers, keeping them abreast of the status of the injured worker’s disability.

Claims filed after notice of termination will not be honored under California law unless the worker can prove that the alleged injury was reported to the employer prior to the termination, or prior evidence of the injury can be found in medical records of the employee.

Injured and ill workers applying for Orange County workers compensation benefits reserve the right to attorney representation. Clients will have access to a workers’ compensation specialist, who will guide them through the finer details of statutes and regulations concerning the case. While attorney fees generally run between 9% and 12% of the case settlement or award value, simple consultation with a workers’ compensation attorney is available for free.

Should I wait to hire an attorney if the insurance company is providing all benefits?

It is never advisable to wait until the last minute, or until problems arise, before hiring an attorney. Keep in mind, the insurance company is not looking out for your best interests. Their interests are protected by attorneys who are familiar with the procedural requirements and time limitations of a highly complicated Orange County workers compensation system.

Should you retain an attorney, all services and consultation are free unless the case ends with an award or settlement, in which case the attorney will receive 9% to 12% of the award or settlement as compensation. In other words, waiting until the last minute to retain an attorney won’t save you money, and could cost you in the long-term.

Attorneys are usually considered by injured workers who are met with denied claims or workers who feel the insurance company has them at a disadvantage. However, workers who may be permanently disabled, or have a continuing need for medical care should also consider consulting an attorney.

In the case of an injury due to the negligence of persons other than the employer or fellow employees, an attorney should be consulted as quickly as possible. In addition to the workers’ compensation claim, a personal injury action may also be within the injured worker’s rights. Such a claim is subject to stringent time guidelines, and the statute of limitations can run out even as the injured worker is collecting workers’ compensation benefits. In such cases, timely attorney consultation is paramount.

How long can I expect my medical treatments to be the responsibility of the employer or insurance company?

The employer, or the employer’s insurance company, must abide by certain guidelines regarding the required payment of medical expenses. Treatment must be provided for as long as doctors deem it medically imperative, which depending on the worker’s injury could be months, years, or could even continue indefinitely. The provision of medical treatment is not subject to time limitations.

It is highly recommended that injured workers seek treatment from a physician who will report on their behalf, rather than the behalf of the employer. A workers’ compensation attorney can provide a list of injury-appropriate medical specialists if the injured worker is unable to find a suitable free choice physician.

Does my employer have the right to terminate my contract if I am out of work on disability?

A worker cannot be terminated on the basis of an industrial injury in California. This type of termination is against state law, as is any other form of discrimination. In the event that such an incident does take place, the compensation of the injured employee may be increased by 50% up to $10,000 maximum, plus up to $250 in additional costs. The injured worker may also be eligible for job reinstatement, and is subject to have lost wages and work benefits reimbursed.

Under Labor Code Section 132(a), proceedings for these benefits must be initiated within one year of the date of discrimination, or employee termination. In order to do so, an appropriate petition must be filed by the worker with the Orange County Workers Compensation Appeals Board. If the worker fails to file the necessary petition within the appropriate time frame, the opportunity to pursue such a claim will more than likely be lost. The Workers’ Compensation Appeals Board may not find every discriminatory act by an employer to be in direct violation of Labor Code Section 132(a), as there are many possible exceptions to the law. If the alleged discrimination or termination was necessitated by the realities of the business world, for example, the employer may be well within their legal rights. Assessing the legality of potentially discriminatory employer actions and attempting to determine which acts actually constitute violations of Labor Code 132(a) is a complex and highly intricate legal matter.

Therefore, in the case of wrongful termination or discrimination, it is in the best interest of the injured worker to seek consultation with an attorney as soon as possible. An attorney is qualified to assess the facts and determine if there is sufficient evidence to pursue a discriminatory claim with any expectation of success.

My doctor has released me to light work duty, but my employer is refusing to provide light work. What happens now?

As conditions improve during the healing process of the injured worker, it is not unusual for a treating physician to release the injured worker to limited work duties even before the injury is entirely healed. If an employer fails to provide work duties within the restrictions of the doctor’s light duty work order, the injured worker will be considered disabled temporarily, and unable to resume their usual work duties, will instead continue to receive temporary disability benefits.

In the case of a worker who is able to return to modified work, but does not receive the same compensation due to a cut in hours or a cut in pay, temporary partial indemnity may be available to the worker in addition to normal job earnings for this period.

However, if an injured worker is released to light duty, but refuses appropriate modified work from the employer, the worker’s refusal may be grounds for termination of temporary disability indemnity payments.

Employers must provide appropriate work for injured workers who are released permanently to modified work by their doctors. If no such work is available within the company, vocational rehabilitation benefits must be provided by the employer while the injured worker attempts to find alternative job options in the labor market.

How are workers compensation cases settled?

Orange County workers compensation cases find resolution in one of two ways, an Award settlement, or a Compromise and Release settlement.

An Award settlement may hold the insurance company responsible for continued lifetime medical care in an effort to relieve or cure the effects of an industrial injury. For injured workers concerned about being able to cover the costs of significant future medical care, an Award settlement is the preferred outcome. In addition, permanently disabled workers are entitled to a monetary award. This award is received in weekly payments over a given period of time, which is determined depending on the severity of the permanent disability.

A Compromise and Release settlement awards the injured worker a specific sum of money, based on a prior agreement between the worker and the employer or insurance company. A Compromise and Release settlement can only be realized if an agreement can be reached between the two negotiating parties. By signing this agreement, the injured worker must release the employer or insurance company of all responsibilities pertaining to future medical procedures and expenses. The injured worker is entitled to an award if an agreement cannot be reached, and has the right to reopen the case within five years of the award to reassess disability benefits.

An injured worker should seek consultation with an attorney experienced with Orange County workers compensation rules and regulations for guidance as to which settlement is the most appropriate for the worker’s unique circumstances. If the injured worker seeks to pursue an Award settlement, an attorney will work to ensure that in addition to a monetary award, the injured worker will have access to all necessary future medical procedures. With a Compromise and Release settlement, an attorney’s goal is to negotiate the best monetary settlement possible for the injured worker.

How much should I expect to pay a workers’ compensation attorney?

There is no charge for initial consultation, but if you choose to retain the services of a workers’ compensation attorney, you will then be billed on a contingency basis. What this means is that the attorney will receive a portion of the award or settlement, in the case that there is a recovery. If there is no recovery, the attorney does not collect a fee.

Attorney fees are deducted from the final settlement, and usually range between 9% and 12%. Fees are based on the complexity of each case, and in some instances, attorney fees can be as high as 15%. However, these fees have to meet with approval from the Workers’ Compensation Appeals Board.

Additional fees may be incurred should the attorney also represent the injured worker before the vocational rehabilitation unit. In cases such as these, 12% to 15% of vocational rehabilitation benefits are usually withheld by the employer or insurance company to cover attorney fees. Once the rehabilitation process has concluded, the percentage of the monies withheld that the attorney receives, if any, is determined by the Workers’ Compensation Appeals Board judge. In the case of a full recovery, the worker receives no settlement and therefore the attorney does not collect a fee.

What does it mean if my doctor determines my condition to be permanent and stationary?

Once the healing process is completed, any disability or impairment that remains is considered a permanent disability. This refers to partial disability as well as total disability. In the case of permanent partial disability, an injured worker has the right to a permanent disability rating and award. This is true even if the worker is able to return to work.

Under the law, permanent disability ratings take the form of monetary payments. Factors considered in determining this amount include the injured worker’s age, occupation, the location of the bodily injury, and the severity of the permanent disability. Ratings range from 1% to 100% percent and are determined by the affect of the permanent disability on the capacity of the injured worker to compete in the job market. Total disabilities, such as the loss of both legs, both arms, or both eyes, carry a permanent disability rating of 100%. Weekly payment rates for permanent disability vary and are dependent on factors such as the severity of the disability, and the date of the injury. Injured workers who rate 100% total permanent disability are entitled to continued benefits for the remainder of their lifetime.

Depending on the percentage of disability, permanent partial disabilities occurring between the dates of July 1, 1996 and December 31, 2002 entitle the injured worker to receive benefits up to a maximum of $140, $160, $170, or $230. Injuries occurring in 2003 entitle the injured worker to maximum benefits of $185 or $230 weekly. 2004 weekly maximums are set at $200 or $250, while injuries occurring in 2005 are entitled to a maximum of either $220 or $270. Again, these values are dependent on the percentage of disability to the injured worker.

The percentage of disability also determines the length of time the injured worker will receive weekly payments. The higher the percentage of disability, the longer the worker can expect to receive compensation. Injured workers who rate a permanent disability of 70% or more are entitled to a small life pension in addition to the regular weekly benefits.

Permanent disability payments are received in addition to any prior temporary disability payments and are beyond the cost of medical care. Permanent disability payments begin after an injury is declared permanent and stationary, or at the conclusion of temporary disability payments.

Pre-existing illness or injury to the same portion of the body involved in the current compensation claim can significantly complicate the determination of the permanent partial disability amount payable to the injured worker. It is not uncommon for employers and insurance companies to dispute the percentage of disability that is due to the injury versus the percentage that is due to pre-existing conditions.

2004 marked a period of immense change to California Workers’ Compensation law, including permanent disability benefits, thanks to a group of laws signed by Governor Arnold Schwarzenegger. These laws are still being interpreted and applied today. At The Orange County Work Injury Law Firm, our workers’ compensation lawyers continue to examine changes in the law in order to best understand how to aid injured workers in claiming and receiving the benefits to which they are entitled.

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