Intro

Over the years, I have advised many injured workers about how the law applies to their particular workers’ compensation claim. I have yet to talk to an injured worker who felt that the workers’ compensation laws were fair or adequate. There is good reason for this. Legal limitations and restrictions as to how much an injured worker may recover result in many workers receiving inadequate benefits. Unfortunately, the workers’ compensation system was not designed primarily to benefit the injured worker. Instead, it was created to protect employers and workers’ compensation insurance companies by limiting their legal liability and obligations.

Despite these negatives, workers’ compensation has evolved over the years to include some decent worker protections. Although many of these are buried in hard-to-understand rules and procedures, informed workers who understand how the system works and are willing to assert their rights have a good chance of being treated fairly. Sadly, most workers have little, if any, knowledge about their workers’ compensation rights. This book aims to change that.

This book can help you if you’re handling your own workers’ compensation case or filing a claim on someone else’s behalf, such as a minor. (In legal terms, this is referred to as acting in the capacity of a guardian ad litem, where you file a workers’ compensation claim on behalf of a minor or someone who is incompetent.) If you’re represented by an attorney, being well informed about workers’ compensation procedures and the important decisions you’ll need to make will help your lawyer guide you through the process.

If you were injured on or after January 1, 1994, this book will provide up-to-date information on California workers’ compensation laws. Due to significant changes in the law, this book cannot be relied on for dealing with claims for injuries occurring prior to 1994, although it should still be very helpful as a general guide.

A. What Is Workers’ Compensation?

Workers’ compensation is a system of benefits set up to help employees who are injured on the job. (And, if a worker dies as a result of work injuries, the employee’s dependents are entitled to receive workers’ compensation death benefits.)

Work-related injuries (and occupational illnesses and diseases) are also referred to as “industrial injuries.” For workers’ compensation purposes, an industrial injury is any injury—in any occupation—that occurs as a result of your employment. Put another way, “industrial” is synonymous with “work.” You may also hear the term “compensable injury,” another term that refers to an injury that’s covered by workers’ compensation.

The workers’ compensation system is sometimes described as a “no-fault” system of give and take. The injured employee gives up the right to sue an employer in court. In return, the employee receives compensation without having to prove that the employer caused the injury—the only thing that matters is that the injury occurred at work. In exchange for providing compensation regardless of fault, the amount the employer must pay is limited to benefits specified in the California Labor Code. Not surprisingly, these amounts are almost always significantly less than what might be available if employees could sue in court. For the vast majority of cases, the rule that work-related injuries must go through the workers’ compensation system is a fact of life. (There are a few situations where an injured employee is not covered by workers’ compensation and may sue an employer in the regular court system; see Chapter 17 for a discussion.)

At first glance, a no-fault system sounds like a fair deal—workers who are hurt are taken care of without having to go through a costly process of assigning blame. Unfortunately, the existing system is complicated and hard to understand. It has evolved into what too often becomes a bureaucratic nightmare that intimidates and hinders people with valid claims. But perhaps the worst aspect of the California workers’ compensation system is that it doesn’t deliver on its fundamental promise to cover all injured workers on a no-fault basis. The employer and its workers’ compensation insurance company will often fight an employee’s perfectly legitimate claim every step of the way.

B. What an Injured Worker Is Entitled To

Enough about the problems with workers’ compensation laws. If you’ve been injured on the job, you probably want to know how you’ll be compensated. California workers’ compensation laws provide a limited number of benefits (mostly money payments). Workers’ compensation benefits are tax exempt; in other words, they are not considered income for income tax purposes.

1. Workers’ Compensation Benefits

This summary discusses what is available and refers you to the chapters that explain how to obtain and make the best use of available benefits:

• Medical treatment and related costs. You are entitled to medical treatment, at no cost to you, to cure and relieve the effects of your industrial injury. You are also entitled to be reimbursed for mileage costs going to and from your medical appointments. You are not, however, entitled to mileage reimbursement for attending court hearings or traveling to the insurance company’s office. (Chapters 9, 10, and 11 cover all aspects of medical benefits.)
• Temporary disability. You are entitled to receive monetary payments while you are off work and temporarily disabled due to your injury. The amount of temporary disability is based upon two-thirds of your average weekly wage, with established maximums, depending upon the date of your injury. In short, don’t expect to receive as much money as when you were on the job. (See Chapter 12.)
• Permanent disability. If your injury affects your ability to participate in the job market in the future, you may receive a set dollar amount as compensation. How much you’ll receive is determined by the part of your body that is injured, your age, your occupation, and any work restrictions as determined by various doctors. These factors are plugged into a standard rating schedule to determine how much you can recover. If you’re 70% to 99.75% disabled, you may additionally receive a small pension for the rest of your life. If you’re 100% (totally) disabled, the amount you are entitled to receive increases substantially. (See Chapter 13.)
• Vocational retraining benefits. If you cannot return to your former job because of limitations caused by your industrial injury, you are entitled to assistance in training for other employment. “Vocational rehabilitation,” available to those injured in 2003 or earlier, is a retraining and job placement assistance program, worth up to $16,000, designed to help you acquire the skills you need to return to suitable, gainful employment.

Effective January 1, 2005, Vocational Rehabilitation was completely eliminated for all dates of injury prior to January 1, 2004, unless you obtained a “final order” entitling you to these benefits from either the Vocational Rehab Unit or the WCAB prior to January 1, 2005. A final order is one that was not appealed. If either you or the insurance company appealed the order and the appeal remained unresolved as of January 1, 2005, your rights to vocational rehabilitation benefits are gone. Although there are cases on appeal on the legitimacy of the law that took effect January 1, 2005, it is unlikely that the law will be reversed. However, for readers who have a final order and are entitled to vocational rehabilitation benefits, and until the appeals are decided, we will continue to discuss voc rehab benefits. For readers filing workers compensation claims after January 1, 2005, you are entitled to a Job Displacement Voucher (see below).

A different program, called the “supplemental job displacement benefit,” is available to workers injured in 2004 or later. This benefit, available only to workers whose employers did not offer them modified or alternative work, offers a trimmed-down version of vocational rehabilitation: a $4,000 to $10,000 voucher for educationrelated retraining and skill enhancement at state-approved or accredited schools. (See Chapter 14.)

• Death Benefits. If you were a total or partial dependent (someone who relied upon another person for support) of an employee who died as a result of an industrial injury, you may have the right to recover certain benefits, including burial expenses and a sum of money. (See Chapter 15.)

2. Take an Active Role in Obtaining Benefits

It’s a fact of life that you’re the one who must see to it that the insurance company provides you with benefits. If you (or your attorney, if you have one) don’t go after all the benefits to which you are entitled, you will likely be shortchanged. In the workers’ compensation system of limited benefits, you cannot afford to be complacent.

Lest you let your pride get in the way, clearly understand that workers’ compensation benefits should not be considered charity or welfare. Whether you like it or not, the existence of the workers’ compensation system means that you have given up valuable legal rights. For example, you cannot sue your employer, you are not entitled to payments to cover lost wages (past, present, or future), and you cannot receive compensation for your pain and suffering.

Accept workers’ compensation benefits for what they are: part of a system set up to get you medical treatment for your injury, provide minimum income while you are off work, and help you get back to work in some capacity as soon as possible.

3. Other Benefits and Remedies

You may qualify for benefits and remedies outside the workers’ compensation system, including:

• State disability (SDI). Most workers have a small amount deducted from each check for “SDI,” or State Disability Insurance. In the event of disability for any reason (work or otherwise), you may be entitled to disability payments. SDI is usually paid where workers’ compensation temporary disability is not being paid. (See Chapter 17, Section A.)
• Social Security benefits. If your injury is severe enough, you may qualify for Social Security disability, which is paid by the federal government. (See Chapter 17, Section B.)
• Claims or lawsuits for personal injuries. If your work injury was caused, entirely or in part, by an outside third party (someone not working for your employer), you may be able to sue that person or entity in civil court for damages. (See Chapter 17, Section C.)
• Claims or lawsuits based on discrimination. In some instances where you have experienced discrimination, you may be able to file a claim under the Americans with Disabilities Act, the California Fair Employment and Housing Act, or other laws. (See Chapter 17, Section D.)

C. Where to Get Additional Information and Help

While this book may answer many of your questions, it’s quite possible that you’ll need further assistance. You may contact any of the agencies listed below for help. In addition, Chapter 27 provides information on how to make use of the law library and the Internet to do legal research. If you decide that you want to be represented by an attorney, you may also find Chapter 26, on working with lawyers, helpful. Be aware, however, that it may be difficult to find a workers’ compensation attorney willing to take your case, as lawyer fees are relatively low and most workers’ compensation attorneys have many more cases than they can handle.

1. Information and Assistance Officers

The Workers’ Compensation Appeals Board is the place where documents in your case are filed and where your matter is heard by a workers’ compensation judge. Despite its name, all workers’ compensation matters (not just appeals) are handled by the Workers’ Compensation Appeals Board, also known as the appeals board or the WCAB. There are approximately 18 appeals boards in the state of California.

Each Workers’ Compensation Appeals Board has at least one information and assistance officer (also called an I&A officer), whose job is to give you free help in pursuing your workers’ compensation claim. The information and assistance officer’s role is to assist injured workers in navigating their way through the workers’ compensation system. Some I&A officers can be your best source of information and help in resolving problems you encounter.

See Appendix 1 for the number of your local workers’ compensation office. You may also get helpful general information from the automated Workers’ Compensation Information and Assistance Unit line at 800-736-7401, which provides prerecorded information about workers’ compensation.

In addition, “Injured Worker Workshops” are held every month at every district office. These free one-hour workshops consist of a presentation by an information and assistance officer followed by a question and answer session. Call your district office for dates and times. (See Appendix 1 for the phone number.)

2. Workers’ Compensation Insurance Rating Bureau (WCIRB)

The Workers’ Compensation Insurance Rating Bureau (WCIRB) is helpful in finding out who your employer’s workers’ compensation company was at the time of your injury. Here’s where to reach the WCIRB:

Workers’ Compensation Insurance Rating Bureau
525 Market Street
Suite 800
San Francisco, CA 94105
415-777-0777

3. Division of Workers’ Compensation Website

The Workers’ Compensation Division has developed a helpful website at www.dir.ca.gov/ DWC/dwc_home_page.htm. Here you can find an overview of workers’ comp laws and rules, a FAQ (frequently asked questions) area, and guides for injured workers on topics such as how to object to a summary rating, how to file an appeal, and how to fire your attorney. This site also provides workers’ compensation forms and the manual for rating permanent disabilities, in PDF format.

D. How to Use This Book

No two injuries are alike, and no two injuries are ever handled the same way by the same insurance company, let alone by different companies. How much of this book you’ll choose to read will depend on your individual circumstances.

I suggest that you read Chapter 2 (Overview of a Workers’ Compensation Claim) to get a good understanding of the workers’ compensation system, and to determine where your claim is in the system. Read Chapter 21 (Preparing Your Case) in conjunction with Chapter 2, as trial preparation should begin on day one of your claim and continue until the day of the trial.

If you have a cumulative trauma or a repetitive stress injury, read Chapter 4 (Cumulative Trauma Disorders).

A thorough reading of Chapter 6 (Keep Good Records to Protect Your Claim) will ensure that you properly prepare and maintain the information you will need for trial.

At least glance at Chapter 5 (What to Do If You’re Injured) to make certain that you have done everything you should following your injury. Feel free to turn to relevant chapters as the need arises and to skip any chapters that do not apply to your situation. For example, if the employer’s workers’ compensation insurance company has already accepted your case and begun providing benefits, you may want to skip Chapter 3 (Is Your Injury Covered by Workers’ Compensation?). Likewise, if the insurance company has proposed a settlement, you’ll want to turn to Chapter 19 (Figure Out a Starting Settlement Amount).

While great care has been taken to provide you with a comprehensive and informative book on your workers’ compensation benefits, this book cannot cover each and every aspect of workers’ compensation law in detail. Particularly if your claim has been denied or delayed, you’ll need to go beyond this book. (See Chapters 26 and 27 on hiring a lawyer and doing your own legal research.)

E. What This Book Does Not Cover

Workers’ compensation laws have changed tremendously over the last ten years. This has inevitably resulted in uncertainty, as different laws will apply to you depending on when you were injured (primarily, whether your injury took place before 2004, or in 2004 or later). Many of the new or revised laws are subject to interpretation and will continue to be interpreted for many years to come as workers’ compensation cases are brought to trial and legal decisions are appealed.

While I have given my best effort to provide you with accurate explanations of the law, this book is not a legal opinion on any issue or law and should not be relied on as such. If you have questions or concerns regarding a workers’ compensation issue or law, you should attempt to consult with a workers’ compensation attorney, get help from an information and assistance officer (see Appendix 1 for a list of offices), or do your own research.

If you face any of the following issues, you should seek help beyond the book:

• You were injured before January 1, 1994. For assistance, see an information and assistance officer or a workers’ compensation attorney.
• Your employer was not insured. By law, your employer must carry workers’ compensation insurance or be permissibly self-insured. If, however, your employer does not have workers’ compensation insurance, you’ll probably need to seek compensation from the Uninsured Employers Benefits Trust Fund, discussed in Chapter 16, Section B.
• An injured worker died. If an employee’s death was due to a work injury, at least in part, the worker’s dependents may file a claim for death benefits. The worker’s estate may be entitled to any accrued workers’ compensation benefits as of the date of death. (See Chapter 15 for more information.) If you feel the death was due to the work injury and the insurance company denies coverage, seek help from an information and assistance officer or see a lawyer.
• You have a stress-related (psychological) injury. Insurance companies almost always deny these claims and will fight you every step of the way. If at all possible, find a workers’ compensation attorney to represent you or seek help from an information and assistance officer. (See Chapter 3, Section B7, for more information.)
• If the statute of limitations has run. If the insurance company has denied your claim because it asserts that you failed to file your claim in a timely manner, you’ll need help beyond the book. Contact an information and assistance officer or see a lawyer. (See Chapter 5, Section C1, for more information.)
• Posttermination claim. Sometimes an insurance company will deny a claim if you were terminated or laid off. If this happens, seek help from an information and assistance officer or see a lawyer.

Introduction

If you’ve been injured on the job, your workers’ compensation claim will stumble and saunter its way through the workers’ compensation system. It will seem that all you do is wait for something to happen. When you request medical treatment, you may wait weeks for a response. You may wait for a doctor’s appointment, then wait for the medical report. And if you file for a hearing before the Workers’ Compensation Appeals Board, you may wait months for your hearing date.

And so it will go. At every turn, it is likely to take months before anything is accomplished. Unfortunately, it probably won’t make you feel much better to realize you are not alone. An average workers’ compensation case takes two to three years to be resolved. And many cases take much, much longer.

It probably won’t come as a surprise that the workers’ compensation system is bureaucratic: Lots of forms, reports, and other documents are shuffled through what sometimes seems like an endless maze. Above all, the workers’ compensation system is confusing. It’s fraught with rules and regulations—and it sorely lacks understandable information for the injured worker.

This chapter helps take the mystery out of the workers’ compensation system by clearly outlining the steps involved in a "typical" workers’ compensation case. Inevitably, there will be some variations depending on your particular situation and whether or not you’re represented by an attorney. But the basic steps are usually similar in all workers’ compensation cases.

Death Claims. If you were totally or partially dependent upon someone who died due to an industrial injury, you may have a workers’ compensation claim for death benefits. Skip ahead to Chapter 15.

Step 1. Notify Your Employer of the Injury

If you sustain a work injury, notify your supervisor or boss of the injury at your first opportunity. If your injury developed over a period of time, as with a repetitive stress, or cumulative trauma, injury, notify your employer as soon as you have symptoms and realize you’ve been injured as a result of your job.

Although you may initially tell your supervisor orally of the injury, it is important that you also give your employer written notice within 30 days of the injury. This will prevent any misunderstanding about whether or not you reported the injury and will protect your right to workers’ compensation benefits.

If you have a union representative, contact that person right away; you may need help obtaining additional benefits that are secured by a union contract. (Your union representative may be instrumental in protecting your legal rights should your employer attempt to terminate you because you can’t return to work for a while. Also, some employers may have salary continuation agreements for union members injured at work.)

Make certain that you complete any required inhouse accident reports. Also, review any accident reports prepared by your supervisor or employer for accuracy, and obtain a copy for your records. If you disagree with the report, write your employer a letter explaining your position. (Chapter 5 takes you through all the rules and procedures involved with reporting your injury and filing a claim.)

Step 2. Get Medical Treatment If Needed

It is important to promptly seek medical treatment if needed. Not only will prompt medical treatment protect your health, but it will establish a medical record of your work injury.

If you gave your employer the name of your own doctor before your injury ("predesignated your treating physician," in workers’ compensation jargon), you may go to that doctor under certain conditions (see Chapter 9, Section B1).

If not, the employer usually has the right to send you to a doctor the employer chooses, which often turns out to be the "company doctor" or "medical provider network"—a doctor or medical clinic that the employer sends its injured workers to on a regular basis.

If you have a medical emergency that requires immediate medical attention, you may go to the nearest emergency room for treatment. But after your emergency medical condition has been stabilized, you must continue follow-up medical treatment with the physician selected by your employer, unless you designated a doctor in advance. (See Chapter 9 for a detailed discussion of medical care.)

Step 3. Paying for Medical Treatment If Employer Denies Your Claim

If you report what you believe to be a work-related injury to your supervisor, your employer will most likely agree to accept responsibility. Authorization for medical treatment may be given orally or in writing to the doctor by your employer or its workers’ compensation insurance company.

Within one day of your filing the DWC-1 claim form (see Step 6), your employer or its insurance company is required to authorize and agree to pay for your medical treatment until your employer or the insurance company either accepts or denies your claim. The insurance company is liable only for $10,000 in medical treatment until it accepts or denies your claim. (LC § 5402(c).)

If your claim is eventually accepted, the employer or insurance company will continue to pay for your treatment. If your claim is denied, the employer or insurance company will not authorize further medical treatment. This may work to your advantage (assuming that you have a valid claim): By denying your claim, your employer gives up its right to control your medical treatment. If your claim is denied, you are not bound to go to the company doctor for treatment and may be treated by a doctor of your choice. (See Chapter 9, Section B, for details.)

If your employer denies your claim right away, seek prompt treatment by relying on private health insurance, if you have it. If you do not have medical insurance and your employer refuses to pay, you have three choices. You may pay for treatment yourself and seek reimbursement later. You may find a doctor to treat you on a "lien basis," where the doctor waits for payment until your workers’ compensation case is settled. (See Chapter 9, Section B2b, for more on liens.) Or you may get a judge to order your employer’s insurance company to pay for treatment. An information and assistance officer can help with this procedure. (See Step 10, below.)

Always apply for state disability insurance (SDI). Whenever you have an injury that results in your inability to work, always—and immediately—apply for SDI from the Employment Development Department (EDD). That way, you’ll receive income from this source in case of a delay or denial of your claim. When your workers’ compensation benefits begin, it’s important that you promptly inform the EDD, so it will discontinue SDI payments. (You may also be entitled to retroactive temporary disability benefits from the insurance company if you received less in SDI payments than you would have from the workers’ compensation insurance company.) We cover SDI in Chapter 17, Section A.

Step 4. Tell the Doctor About Your Injuries

The doctor’s first report will often be relied upon by the insurance company to determine the extent of your injuries and whether they resulted from your employment. Tell the doctor that you injured yourself at work (if that’s true) and how the injury occurred (if you know). In addition to giving the doctor a complete history of your medical problems (if asked), be sure to cover all your symptoms and sources of pain. For instance, even if most of your pain is in your back, if your arm hurts even a little, tell the doctor! You’ll find detailed information on dealing with doctors in Chapter 9.

Step 2. Get Medical Treatment If Needed

It is important to promptly seek medical treatment if needed. Not only will prompt medical treatment protect your health, but it will establish a medical record of your work injury.

If you gave your employer the name of your own doctor before your injury ("predesignated your treating physician," in workers’ compensation jargon), you may go to that doctor under certain conditions (see Chapter 9, Section B1).

If not, the employer usually has the right to send you to a doctor the employer chooses, which often turns out to be the "company doctor" or "medical provider network"—a doctor or medical clinic that the employer sends its injured workers to on a regular basis.

If you have a medical emergency that requires immediate medical attention, you may go to the nearest emergency room for treatment. But after your emergency medical condition has been stabilized, you must continue follow-up medical treatment with the physician selected by your employer, unless you designated a doctor in advance. (See Chapter 9 for a detailed discussion of medical care.)

Step 3. Paying for Medical Treatment If Employer Denies Your Claim

If you report what you believe to be a work-related injury to your supervisor, your employer will most likely agree to accept responsibility. Authorization for medical treatment may be given orally or in writing to the doctor by your employer or its workers’ compensation insurance company.

Within one day of your filing the DWC-1 claim form (see Step 6), your employer or its insurance company is required to authorize and agree to pay for your medical treatment until your employer or the insurance company either accepts or denies your claim. The insurance company is liable only for $10,000 in medical treatment until it accepts or denies your claim. (LC § 5402(c).)

If your claim is eventually accepted, the employer or insurance company will continue to pay for your treatment. If your claim is denied, the employer or insurance company will not authorize further medical treatment. This may work to your advantage (assuming that you have a valid claim): By denying your claim, your employer gives up its right to control your medical treatment. If your claim is denied, you are not bound to go to the company doctor for treatment and may be treated by a doctor of your choice. (See Chapter 9, Section B, for details.)

If your employer denies your claim right away, seek prompt treatment by relying on private health insurance, if you have it. If you do not have medical insurance and your employer refuses to pay, you have three choices. You may pay for treatment yourself and seek reimbursement later. You may find a doctor to treat you on a "lien basis," where the doctor waits for payment until your workers’ compensation case is settled. (See Chapter 9, Section B2b, for more on liens.) Or you may get a judge to order your employer’s insurance company to pay for treatment. An information and assistance officer can help with this procedure. (See Step 10, below.)

Always apply for state disability insurance (SDI). Whenever you have an injury that results in your inability to work, always—and immediately—apply for SDI from the Employment Development Department (EDD). That way, you’ll receive income from this source in case of a delay or denial of your claim. When your workers’ compensation benefits begin, it’s important that you promptly inform the EDD, so it will discontinue SDI payments. (You may also be entitled to retroactive temporary disability benefits from the insurance company if you received less in SDI payments than you would have from the workers’ compensation insurance company.) We cover SDI in Chapter 17, Section A.

Step 4. Tell the Doctor About Your Injuries

The doctor’s first report will often be relied upon by the insurance company to determine the extent of your injuries and whether they resulted from your employment. Tell the doctor that you injured yourself at work (if that’s true) and how the injury occurred (if you know). In addition to giving the doctor a complete history of your medical problems (if asked), be sure to cover all your symptoms and sources of pain. For instance, even if most of your pain is in your back, if your arm hurts even a little, tell the doctor! You’ll find detailed information on dealing with doctors in Chapter 9.

Step 5. The Doctor Decides If You Need Time Off

The first doctor you see will probably determine whether or not you need some time off from work to recover from the effects of your injury. Depending on the doctor’s findings, you will receive one of the following:

• off-work order
• limited duties work order (also called a light duty work order or modified work order), or
• return to work order—that is, you can return to work with no restrictions.

Especially if you are given an off-work order, it’s essential that you keep your employer advised of your medical status. If you neglect to do so, you may be fired for failing to report to work without a valid excuse. If, however, you keep your employer informed, you cannot legally be fired for injuring yourself, filing a workers’ compensation claim, and obeying doctor’s orders.

Step 6. Complete Workers’ Compensation Claim

Your next step is to protect your rights as an injured worker under the workers’ compensation system by promptly completing two forms:

• Workers’ Compensation Claim Form (DWC-1). Your employer is required by law to give you this form within one working day of learning that you had an injury that resulted in medical treatment beyond first aid or in your taking time off work (beyond the shift during which the injury took place). (LC § 5401(a).) You must fill in the DWC-1 form and give it to your employer. A copy of form DWC-1 is provided in Appendix 5.
• Application for Adjudication of Claim. You must also complete an Application for Adjudication of Claim form and file it with the Workers’ Compensation Appeals Board. An Application for Adjudication of Claim form is included in Appendix 5.

Time limits to file a claim. Your workers’ compensation claim form (DWC-1) and the Application for Adjudication of Claim must by law be filed within one year from the date of injury. But, as a matter of common sense, you should complete and file these within 30 days of your injury, or at your first opportunity. (We provide sample forms and detailed instructions in Chapter 5, Section C.)

Step 7. Secure Control of Your Medical Care

As emphasized throughout this book, your treating doctor makes many important decisions that affect your workers’ compensation case. Among other things, this doctor decides whether you are seriously injured, what type of treatment you need, and when and if you can return to work.

If you gave your employer a written designation of your treating physician prior to your injury, you may receive medical care from that doctor if you meet certain requirements (see Chapter 9, Section B1).

If you did not designate a treating physician in advance, you cannot pick your own doctor until a certain period of time has passed after your injury. For most workers, this time period is 30 days. Pay attention to this time period, and choose your own doctor as soon as you legally can. (See Chapter 9, Section B, for details.)

If your employer has established a medical provider network, you cannot go to a doctor outside the network (unless you predesignated your doctor). You can request a second and third opinion within the network and, if you’re still not satisfied, submit an "independent medical review application" to the administrative director asking to be sent to another doctor outside of the network. For more information, see Chapter 9, Section A3d.

Step 8. You May Receive Temporary Disability Benefits

When an injury limits you from working, you are entitled to receive temporary disability benefits. These payments are designed to help support you while you are not receiving full pay and are recovering from the effects of the injury or illness.

If the treating doctor has determined that you are temporarily disabled but the insurance company has not automatically begun temporary disability payments, you’ll need to take charge. Contact the insurance company and request payment of "temporary disability indemnity" (also referred to as TD). It’s okay to make your request by telephone, but it is always wise to follow up with a confirming letter, such as the one in Chapter 12, Section C2.

If you have an off-work order and your claim is accepted, the insurance carrier should promptly begin making temporary disability payments for all but the first three days you were off work (unless you are temporarily disabled for more than 14 days or your injury requires an overnight stay in the hospital, in which case you will be paid for these three days). (LC § 4652.) See Chapter 12, Section B, to determine the amount you are entitled to receive.

Within 14 days of your request, the workers’ compensation insurance company should begin making temporary disability payments or advise you by mail why payments cannot be made within the 14-day period (known as a "delay letter").

If you receive a delay letter, you may be asked to provide additional information to the insurance company so that it can decide whether temporary disability payments are owed. The delay letter will also state when the insurance company expects to have the information required to make the decision. (LC § 4650, CCR § 9812.) The insurance company has 90 days from knowledge of your claim in which to make a decision as to whether you are eligible for temporary disability payments.

If you do not receive either a check or a delay letter within 14 days of your request for benefits, the insurance company is liable for a 10% penalty on any temporary disability payments that you should have received by the 14th day. But don’t sit around waiting for your check to appear. This is just one more instance where the old adage "the squeaky wheel gets the grease" holds true.

Step 6. Complete Workers’ Compensation Claim

Your next step is to protect your rights as an injured worker under the workers’ compensation system by promptly completing two forms:

• Workers’ Compensation Claim Form (DWC-1). Your employer is required by law to give you this form within one working day of learning that you had an injury that resulted in medical treatment beyond first aid or in your taking time off work (beyond the shift during which the injury took place). (LC § 5401(a).) You must fill in the DWC-1 form and give it to your employer. A copy of form DWC-1 is provided in Appendix 5.
• Application for Adjudication of Claim. You must also complete an Application for Adjudication of Claim form and file it with the Workers’ Compensation Appeals Board. An Application for Adjudication of Claim form is included in Appendix 5.

Time limits to file a claim. Your workers’ compensation claim form (DWC-1) and the Application for Adjudication of Claim must by law be filed within one year from the date of injury. But, as a matter of common sense, you should complete and file these within 30 days of your injury, or at your first opportunity. (We provide sample forms and detailed instructions in Chapter 5, Section C.)

Step 7. Secure Control of Your Medical Care

As emphasized throughout this book, your treating doctor makes many important decisions that affect your workers’ compensation case. Among other things, this doctor decides whether you are seriously injured, what type of treatment you need, and when and if you can return to work.

If you gave your employer a written designation of your treating physician prior to your injury, you may receive medical care from that doctor if you meet certain requirements (see Chapter 9, Section B1).

If you did not designate a treating physician in advance, you cannot pick your own doctor until a certain period of time has passed after your injury. For most workers, this time period is 30 days. Pay attention to this time period, and choose your own doctor as soon as you legally can. (See Chapter 9, Section B, for details.)

If your employer has established a medical provider network, you cannot go to a doctor outside the network (unless you predesignated your doctor). You can request a second and third opinion within the network and, if you’re still not satisfied, submit an "independent medical review application" to the administrative director asking to be sent to another doctor outside of the network. For more information, see Chapter 9, Section A3d.

Step 8. You May Receive Temporary Disability Benefits

When an injury limits you from working, you are entitled to receive temporary disability benefits. These payments are designed to help support you while you are not receiving full pay and are recovering from the effects of the injury or illness.

If the treating doctor has determined that you are temporarily disabled but the insurance company has not automatically begun temporary disability payments, you’ll need to take charge. Contact the insurance company and request payment of "temporary disability indemnity" (also referred to as TD). It’s okay to make your request by telephone, but it is always wise to follow up with a confirming letter, such as the one in Chapter 12, Section C2.

If you have an off-work order and your claim is accepted, the insurance carrier should promptly begin making temporary disability payments for all but the first three days you were off work (unless you are temporarily disabled for more than 14 days or your injury requires an overnight stay in the hospital, in which case you will be paid for these three days). (LC § 4652.) See Chapter 12, Section B, to determine the amount you are entitled to receive.

Within 14 days of your request, the workers’ compensation insurance company should begin making temporary disability payments or advise you by mail why payments cannot be made within the 14-day period (known as a "delay letter").

If you receive a delay letter, you may be asked to provide additional information to the insurance company so that it can decide whether temporary disability payments are owed. The delay letter will also state when the insurance company expects to have the information required to make the decision. (LC § 4650, CCR § 9812.) The insurance company has 90 days from knowledge of your claim in which to make a decision as to whether you are eligible for temporary disability payments.

If you do not receive either a check or a delay letter within 14 days of your request for benefits, the insurance company is liable for a 10% penalty on any temporary disability payments that you should have received by the 14th day. But don’t sit around waiting for your check to appear. This is just one more instance where the old adage "the squeaky wheel gets the grease" holds true.

Step 9. Handling a Denial of Your Claim or Benefits

If you’re unable to work because of your injury, the last thing you want to face is a battle with the insurance company. Unfortunately, this isn’t in your control. Some insurance companies deny many claims as a matter of course or routinely reject requests for temporary disability payments, medical treatment, or other benefits.

If your workers’ compensation claim or any request for benefits is denied, the insurer should notify you of the reason in writing. The reason could be any of the following:

• The insurer does not believe you sustained an industrial injury.
• The insurer does not believe that you are temporarily totally disabled.
• The insurer does not believe you need medical treatment.
• Your case involves two or more employers or insurance companies, each of whom refuses to pay benefits, claiming that the payment of benefits is the other’s responsibility.

In any of these situations, you may need to take immediate steps to secure benefits. If a letter or phone call proves fruitless, you’ll probably need to request a hearing before the Workers’ Compensation Appeals Board, as discussed in Step 10, below. Consider seeing a lawyer, if you haven’t already. (See Chapter 26 for information on hiring a lawyer.)

Step 10. Taking Problems to the Appeals Board

The Workers’ Compensation Appeals Board oversees the California workers’ compensation system. You may request a hearing (either expedited or regular) before the appeals board to resolve virtually any disputed issue. Examples of problems that may necessitate a hearing include:

• Refusal to authorize medical treatment. Your employer or its insurance company refuses to pay for your medical treatment.
• Refusal to authorize surgery or tests. Your treating doctor requests authorization to do surgery or perform tests, such as an MRI, and the insurance company refuses to authorize it.
• Refusal to provide benefits. The treating doctor says that you are entitled to benefits and the insurance company refuses to provide them.
• Insufficient benefits. The insurance company pays temporary disability benefits at a lower rate than your earnings justify.
• Inadequate medical care. You believe the quality of medical treatment you are receiving is inadequate, and the insurance company refuses to send you to another doctor.

Information on requesting and preparing for a hearing before a workers’ compensation judge is contained in Chapters 22 and 24.

Step 11. After You Are Determined to Be Permanent and Stationary (P&S)

You may continue to receive temporary disability payments until your doctor says that your medical condition is "permanent and stationary" or that you can return to work. Permanent and stationary (also referred to as "P&S") is workers’ compensation jargon meaning that your doctor believes your medical condition has plateaued and medical treatment at this time won’t improve your condition.

A new definition of permanent and stationary was put into effect in 2005. It is similar to the old definition, but legalistically different. It is defined as the point in time that you have reached "maximal medical improvement" (MMI), meaning that your condition is well stabilized and unlikely to change substantially in the next year, with or without medical treatment. This new definition of permanent and stationary, or MMI, will apply whenever the new (2005) rating schedule applies. (The new schedule applies if you were injured in 2005 or later and in a few other circumstances—for more information, see Chapter 18, Section B1.)

Exactly when this determination is made depends upon the severity of the injury, the length of your treatment, and your prospects for further recovery. It could be weeks, months, or even several years before your doctor concludes that your condition has reached a plateau.

Once you are determined to be permanent and stationary, you are no longer entitled to temporary disability payments, even if you cannot return to work or have not been released to return to work. You may, however, still be entitled to further medical treatment on an as-needed basis.

After your doctor’s permanent and stationary diagnosis, you can expect to receive a letter from the insurance company advising you of the company’s position on several critical issues in your workers’ compensation case, including:

• whether you have a permanent disability (if so, the insurance company will begin making payments)
• whether you qualify for vocational rehabilitation or a "supplemental job displacement benefit," and
• whether you are entitled to future medical care.

If you or the insurance company disagree with the treating doctor’s opinion on any issues on the doctor’s permanent and stationary report, the disputing party has 30 days to request that the issue be determined by going to a qualified medical evaluator (QME). (See Chapter 10 for a detailed explanation of medical-legal evaluations.)

Step 12. You May Recover Completely and Return to Work

Many work injuries result in a minimum amount of time off from work—at least a few days or weeks. After recovering, the injured worker often returns to the job without any work restrictions or long-term disability. In such situations, your main concern is to make certain that you were fairly paid by the insurance company for the days you were off, and that all medical treatment was paid by the insurance company or, if you paid your own medical bills, that you were reimbursed.

Be aware that even if you go back to work, you may still be entitled to a monetary permanent disability award. (See Step 14, below.)

Step 10. Taking Problems to the Appeals Board

The Workers’ Compensation Appeals Board oversees the California workers’ compensation system. You may request a hearing (either expedited or regular) before the appeals board to resolve virtually any disputed issue. Examples of problems that may necessitate a hearing include:

• Refusal to authorize medical treatment. Your employer or its insurance company refuses to pay for your medical treatment.
• Refusal to authorize surgery or tests. Your treating doctor requests authorization to do surgery or perform tests, such as an MRI, and the insurance company refuses to authorize it.
• Refusal to provide benefits. The treating doctor says that you are entitled to benefits and the insurance company refuses to provide them.
• Insufficient benefits. The insurance company pays temporary disability benefits at a lower rate than your earnings justify.
• Inadequate medical care. You believe the quality of medical treatment you are receiving is inadequate, and the insurance company refuses to send you to another doctor.

Information on requesting and preparing for a hearing before a workers’ compensation judge is contained in Chapters 22 and 24.

Step 11. After You Are Determined to Be Permanent and Stationary (P&S)

You may continue to receive temporary disability payments until your doctor says that your medical condition is "permanent and stationary" or that you can return to work. Permanent and stationary (also referred to as "P&S") is workers’ compensation jargon meaning that your doctor believes your medical condition has plateaued and medical treatment at this time won’t improve your condition.

A new definition of permanent and stationary was put into effect in 2005. It is similar to the old definition, but legalistically different. It is defined as the point in time that you have reached "maximal medical improvement" (MMI), meaning that your condition is well stabilized and unlikely to change substantially in the next year, with or without medical treatment. This new definition of permanent and stationary, or MMI, will apply whenever the new (2005) rating schedule applies. (The new schedule applies if you were injured in 2005 or later and in a few other circumstances—for more information, see Chapter 18, Section B1.)

Exactly when this determination is made depends upon the severity of the injury, the length of your treatment, and your prospects for further recovery. It could be weeks, months, or even several years before your doctor concludes that your condition has reached a plateau.

Once you are determined to be permanent and stationary, you are no longer entitled to temporary disability payments, even if you cannot return to work or have not been released to return to work. You may, however, still be entitled to further medical treatment on an as-needed basis.

After your doctor’s permanent and stationary diagnosis, you can expect to receive a letter from the insurance company advising you of the company’s position on several critical issues in your workers’ compensation case, including:

• whether you have a permanent disability (if so, the insurance company will begin making payments)
• whether you qualify for vocational rehabilitation or a "supplemental job displacement benefit," and
• whether you are entitled to future medical care.

If you or the insurance company disagree with the treating doctor’s opinion on any issues on the doctor’s permanent and stationary report, the disputing party has 30 days to request that the issue be determined by going to a qualified medical evaluator (QME). (See Chapter 10 for a detailed explanation of medical-legal evaluations.)

Step 12. You May Recover Completely and Return to Work

Many work injuries result in a minimum amount of time off from work—at least a few days or weeks. After recovering, the injured worker often returns to the job without any work restrictions or long-term disability. In such situations, your main concern is to make certain that you were fairly paid by the insurance company for the days you were off, and that all medical treatment was paid by the insurance company or, if you paid your own medical bills, that you were reimbursed.

Be aware that even if you go back to work, you may still be entitled to a monetary permanent disability award. (See Step 14, below.)

Step 13. You May Be Entitled to Vocational Retraining

If your ability to do your customary work is permanently impaired, you may be entitled to vocational rehabilitation benefits (if you were injured in 2003 or before) or a "supplemental job displacement benefit" (if you were injured in 2004 or later).

Vocational rehabilitation. For injuries that occurred in 2003 and before, vocational rehabilitation benefits (education, job training, and placement) are available under either of the following conditions:

• The treating doctor has indicated that you can return to your former employment with certain restrictions, and the employer won’t or can’t accommodate you.
• The treating doctor has indicated that you should not return to your former employment under any circumstances.

If both you and the insurance company agree with the treating doctor’s determination and the actions of the employer, you can begin the vocational rehabilitation process. Otherwise, either party may voice its objections and get another doctor’s opinion. (See Chapter 14 for more on vocational rehabilitation. Chapter 10 discusses how to get a medical-legal evaluation to obtain another doctor’s opinion.)

For injuries that occurred in 2003 or before, you may settle your prospective vocational rehabilitation services for an amount not to exceed $10,000, when certain conditions are met and if you have an attorney.

Job displacement benefits. For injuries that occurred in 2004 and later, vocational rehabilitation benefits are not available. However, you may be entitled to a "supplemental job displacement benefit" if you have sustained some permanent disability and if you do not return to work for the at-injury employer (the employer you were working for when you were injured) within 60 days of your last temporary disability payment. This benefit consists of vouchers for education-related costs.

Specifically, you will be eligible for this benefit only if the at-injury employer did not offer you:

• modified work that lasts at least 12 months, or
• alternative work that you are able to perform and that lasts at least 12 months, pays within 15% of preinjury earnings, and is within a reasonable distance of where you lived at the time of injury.

See Chapter 14 for more on the supplemental job displacement benefit.

Step 14. You May Be Permanently Disabled

If you can’t go back to your former job, or you can return but only with work restrictions or limited duties, you may be entitled to permanent disability payments. After your condition becomes permanent and stationary, or reaches maximal medical improvement, you should try to negotiate a settlement with the insurance company.

The factors you should consider when negotiating a settlement are covered in detail in Chapters 19 and 20, and should include the amount and value of your permanent disability, any past due benefits (such as retroactive temporary disability benefits), and either the right to future medical treatment or its dollar value.

By negotiating your settlement, you eliminate the hazards of litigation. For example, if the case goes to trial, you’re likely to wait many months or more to finally get to trial. You may even end up with less than you’d have received if you had settled the case.

Step 15. Go to Trial If There Is No Settlement

If you and the insurance company cannot agree to a settlement, either side may file appropriate documents with the Workers’ Compensation Appeals Board to set the case for trial. (See Chapter 22, Section A.)

First, you’ll attend a preliminary hearing, called a pre-trial conference or mandatory settlement conference. There, you will have a final opportunity to settle the case.

If you and the insurance company still cannot reach a settlement, you will be assigned a trial date to have your case heard before an appeals board judge. The trial date will probably be set anywhere from two to eight months later, depending upon how crowded the trial calendar is.

Step 16. Judgment Is Paid or the Matter Is Appealed

If the judge rules in your favor, the insurance company must either pay the judgment to you within 25 days or file a Petition for Reconsideration, which is the first of three steps in the appeal process. If you don’t agree with the judge’s ruling, you may also file a Petition for Reconsideration. If a petition is denied, the appealing party may file a Writ of Review with the Court of Appeals and, finally, with the California Supreme Court. (Appeals are covered in Chapter 25.)

Step 14. You May Be Permanently Disabled

If you can’t go back to your former job, or you can return but only with work restrictions or limited duties, you may be entitled to permanent disability payments. After your condition becomes permanent and stationary, or reaches maximal medical improvement, you should try to negotiate a settlement with the insurance company.

The factors you should consider when negotiating a settlement are covered in detail in Chapters 19 and 20, and should include the amount and value of your permanent disability, any past due benefits (such as retroactive temporary disability benefits), and either the right to future medical treatment or its dollar value.

By negotiating your settlement, you eliminate the hazards of litigation. For example, if the case goes to trial, you’re likely to wait many months or more to finally get to trial. You may even end up with less than you’d have received if you had settled the case.

Step 15. Go to Trial If There Is No Settlement

If you and the insurance company cannot agree to a settlement, either side may file appropriate documents with the Workers’ Compensation Appeals Board to set the case for trial. (See Chapter 22, Section A.)

First, you’ll attend a preliminary hearing, called a pre-trial conference or mandatory settlement conference. There, you will have a final opportunity to settle the case.

If you and the insurance company still cannot reach a settlement, you will be assigned a trial date to have your case heard before an appeals board judge. The trial date will probably be set anywhere from two to eight months later, depending upon how crowded the trial calendar is.

Step 16. Judgment Is Paid or the Matter Is Appealed

If the judge rules in your favor, the insurance company must either pay the judgment to you within 25 days or file a Petition for Reconsideration, which is the first of three steps in the appeal process. If you don’t agree with the judge’s ruling, you may also file a Petition for Reconsideration. If a petition is denied, the appealing party may file a Writ of Review with the Court of Appeals and, finally, with the California Supreme Court. (Appeals are covered in Chapter 25.)