What Types of Benefits are Available for Workers’ Compensation in California?
There are six types of workers’ compensation benefits in California. This article explains Workers’ Compensation California benefits, what they are and how they work.
Total Temporary Disability (T.T.D.)
Total Temporary Disability benefits are payable when you are not able to do any type of work or when you are able to work only under temporary restrictions which your employer cannot provide. For example, the doctor says you can go back to work, but you have to sit down for fifteen minutes out of every hour, and your employer will not allow you to return on that basis. You would then be eligible to continue receiving T.T.D. if the restriction is temporary.
Temporary disability is paid at the rate of two-thirds of your average weekly earnings (A.W.E.). The maximum average weekly earnings considered varies, depending on the date of your injury. For injuries after January 1, 2008 the benefit rate is $916.33. For injuries in 2009, the maximum rate goes up to $958.01 and for 2015 it is $1103.29.
If two-thirds of your earnings is more than the maximum you will only receive the maximum benefit rate for your injury year and no more. You are not entitled to T.T.D. if your employer has work that you can do and offers that work to you. For instance, if they find a sitting job for you when you cannot work on your feet, so long as this meets the doctor’s approval, then you would not be entitled to temporary disability benefits.
Total temporary disability should not be confused with S.D.I. or State Disability Insurance. Both benefits are referred to as “disability” but State Disability Insurance does not require that your disability be work-related. It is paid by the Employment Development Department (E.D.D.) of the State of California. Workers’ Compensation Benefits are payable by an insurance company for your employer or an administrator on behalf of your employer if your employer is self-insured.
Vocational Rehabilitation Maintenance Allowance (V.R.M.A.)
Because of workers compensation reform in 2004 in SB 899, this benefit is no longer available.
Temporary Partial Disability (T.P.D.)
If you are partially temporarily disabled (for instance if your doctor allows you to work for four hours rather than eight hours per day) than you are entitled to benefits proportional to your temporary disability. If your partial employment pays you less than the weekly maximum or less than your previous average weekly earnings, then you are entitled to two-thirds of the money you have lost (the difference between what you make now and what you made before).
Permanent Partial Disability (P.P.D.)
Permanent partial disability payments are often referred to as PDA’s or permanent disability advances. Permanent disability is calculated after you have become permanent and stationary (reached maximum medical improvement) and are able to return to work with some limitations. If you have no limitations, you are not entitled to any permanent partial disability. Usually there is a dispute as to the amount of permanent partial disability which is not resolved until the end of your claim. However, it often happens that it is agreed that you have some permanent partial disability and only the amount is in dispute. There are two types of permanent disability advances.
If you are not totally temporarily disabled, but have some permanent disability, then you are entitled to permanent disability advances in a scheduled amount which varies according to the date of your work injury.
The number of weeks for which you receive that amount is determined by the percentage of disability that you have. After January 1, 2005, however there is another complication. Once your Permanent Disability has been evaluated, there are now several different amounts that you might receive for the same percentage of disability, depending on whether your employer has more or less than 50 employees and on whether or not your employer offers you a job after you are able to return to work.
If your employer has more than 50 employees and if he does not offer you a job to return to within 60 days of becoming permanent and stationary, then each payment of PD after that will be increased by 15%. The job offered has to last for 12 months. However, if your employer does offer a job (regular work, modified work or alternative work) then your payment is reduced by 15%. Modified and alternate work are required to pay at least 85% of your wages at the time of injury. This section does not appear to be limited to employers of over 50 employees. If your work is terminated by the employer while you are still receiving PD payments, then the 15% is added back into your payments. You don’t get this increase if you quit or if your employer has fewer than 50 employees.
For injuries after January 1, 2013, permanent disability is paid at a flat rate and there is no longer a 15% adjustment.
Total Permanent Disability (T.P.D.)
Total permanent disability is rare. That benefit is paid at the temporary disability rate for life. Total permanent disability is 100% disability. Certain conditions such as the loss of use of both arms or the loss of use of both eyes are presumed to be 100% disability. If you are 99.75% disabled, you are not 100% disabled and you will receive permanent disability advances as described above.
Death benefits are paid to your dependents if you die of your work injury. They will be the subject of a separate article.
When are benefits supposed to be paid?
Workers’ compensation benefits are to be paid every fourteen days. If they are paid late the insurance company is supposed to automatically increase the amount of the payment by ten percent. If your payments are mailed to the correct address every fourteen days, the insurance company is not responsible for a penalty. They will not be held responsible for problems with the U.S. Postal Service or the security of your mail box. I recommend that you save every envelope in which you receive checks and check the post mark to be sure that they are no more than fourteen days apart. Ideally you should save a copy of the check as well.
Some insurance companies include check stubs which tell the date the check was issued, the amount and what period it covers. You should definitely save all of these. If there is no stub and it is possible for you to do so, I recommend that you make a copy of the check before you deposit it or cash it. If you cannot copy it you should at least record the date of the check, the amount, and the dates covered by the check.
Workers Compensation Settlements in California
There are two types of workers compensation settlements. They are called a Stipulated Finding and Award and a Compromise and Release. A Stipulated Finding and Award is an agreement which reaches the same decision that a judge would make after a trial. A Compromise and Release completely closes the case.
What is a Stipulated Finding and Award?
A “Finding and Award” is what the judge’s decision is called. A “Stipulated Finding and Award” is an agreement that has the same effect as the judge’s decision. It is entered into voluntarily by both sides rather than being imposed on the parties by the workers compensation judge.
The main components of a Finding and Award are the percentage of disability and whether or not the applicant needs further medical care. The percentage of disability derives from the doctor’s opinion as to your level of disability. There is a formula for determining disability from the language in the medical report, combined with your age and occupation. Usually we have a dispute as to the level of your disability since it is the percentage of disability that determines the amount of money you receive. The benefits awarded by a judge are paid out over time. They are not paid in a lump sum unless the payment has already ended.
Permanent disability is paid at different rates for different dates of injury and for different percentages of disability.
A Stipulated Finding and Award will set forth the percentage of disability which we agree to as well as the number of weeks to be paid and the rate. Each specific percentage of disability is paid for a certain number of weeks.
Permanent disability benefits should begin within two weeks after the last payment of temporary disability benefits depending on your date of injury. Therefore, if it has been some time since your benefits should have begun and they have not, and if we agree that they should have begun some time ago, then there may be some money accumulated already that is due to you.
Permanent disability advances may have begun before your Workers Compensation Settlements. These advances will be counted as credit against the number of weeks that the employer is suppose to pay you. However, the amount you receive per week may go up or down by 15%, depending on whether your employer has over 50 employees and whether they offer you a job. The 15% adjustment no longer exists for injuries after January 1, 2013; permanent disability percentages are paid at a flat rate.
An important part of the Stipulated Finding and Award is the agreement as to whether or not you are entitled to future medical care. There are 2 choices in these types of Workers Compensation Settlements. Either that you are or are not or that you may be entitled to future medical care. If you are entitled or may be entitled to medical care you will need to notify the workers compensation insurance company before you receive medical care. Usually the doctor will do this for you. Be sure that it is done. Usually you should just call your workers compensation adjuster or the person at your company which handles workers’ compensation. If you have already elected a primary treating doctor you should continue to treat with that doctor, but you do have a right to change treating doctors.
After January 1, 2005, you may be required to obtain all medical care from the employer’s or the insurer’s Medical Provider Network.
Attorney’s fees on a Stipulated Finding and Award are often “commuted” from the far end of the award. This means that the fees are paid to the workers compensation attorney now but credited to the employer against the last payments that they would have to make. Since workers compensation attorney’s fees are usually 15%, you would receive approximately 15% less payments then you are scheduled to receive. For instance, if you were to receive 100 weeks of benefits, you would only receive about 85 weeks. The last 15 weeks of payments would have already been paid to the attorney for attorney’s fees. Most people prefer this to paying the attorney first and having to wait for their benefits to begin in Workers Compensation Settlements.
What is a Compromise and Release?
A Compromise and Release closes the entire case and eliminates the need for payments over time. It also closes any right to future medical care. If you have a right to future medical care but would rather pay for it yourself or have some other means such as other health insurance to pay for it, then you may want to consider a Compromise and Release. If you close your future medical care, you are usually compensated to some degree for relieving the workers compensation insurance company of having to pay for future medical care. Most applicants prefer to have their case be completely over if there is no definite need for continuing medical care.
The amount of the Compromise and Release is usually more than the amount of the permanent disability which you would have received over time. The difference is intended to compensate you for future medical care. If all of the doctors agree that you do not need any future medical care then your settlement would be about the same as the amount of permanent disability.
A Compromise and Release is not always possible. Such Workers Compensation Settlements are voluntary, meaning that either party can refuse to close by this method. Also, if you continue to work with the same employer and they are insured by the same insurance company then they normally do not want to settle by way of Compromise and Release. The reason is that they cannot buy the end of the case. If you continue to work there you could be re-injured the day after the workers compensation settlement and they would have to begin paying medical benefits again.
How will my settlement affect Vocational Rehabilitation?
There is no vocational rehabilitation for injuries after January 1, 2004. It has been replaced with a voucher program called a supplemental job displacement voucher. For injuries before January 1, 2004, all vocational rehabilitation benefits have been eliminated by the sunset clause in the reform in SB 899. You can settle your workers compensation case by stipulated award or compromise and release whether or not you engage in vocational rehabilitation.
Can’t I get all of the money and keep the medical open?
While it would be theoretically possible to Compromise and Release the permanent disability but keep future medical care open, it is basically unheard of in Southern California. These hybrid settlements are rare. The whole point of a Compromise and Release from the insurance companies point of view is that they get rid of you. They know how much the case costs and they get it over with rather than having to keep the case open and wonder when you will be going to the doctor again. They also avoid having to keep the case open to send checks every two weeks. Therefore, there is really only the two choices of keeping your medical open and being paid over time or closing everything including your future medical in Workers Compensation Settlements.
What if the workers compensation insurance company won’t make a reasonable offer?
Remember that it takes two sides to settle a workers compensation case. The reason we have judges and trials is to make the decisions when the two sides of the case cannot agree on what is fair. Your attorney can make the argument to the insurance company but if they do not think the case is worth as much as you or your workers compensation attorney think it is then they will not settle the case. At some point if the insurance company will not accept your demand and you will not change or if you will not accept the insurance company’s offer and they will not change then the only alternative is to go to trial.
What happens if the case is settled?
The attorneys will complete forms provided by the court; either a Compromise and Release or a Stipulated finding and Award agreement. There will be presented to the judge who must review the documents and medical reports to be sure that it is adequate for your injuries. The workers compensation judge will then sign either and Order Approving Compromise and Release or the Award made pursuant to the Stipulated Finding and Award. These documents, when signed by the judge, have the effect of an order by the court. Generally speaking, when you receive the order, you should receive your check for the amount of the settlement less attorney’s fees and less any permanent disability advances within 30 days. With a Stipulated finding and Award, you are often already receiving benefits by the time we enter into the agreement. The agreement just determines when those benefits will end.
If you have any other questions regarding Workers Compensation Settlements, please contact your workers compensation attorney.
California Workers Compensation Law
What is California workers compensation?
California Workers Compensation Law is a no-fault system for injuries connected with your employment, whether they are specific injuries or a disease or disabling condition. Your employer is required to pay for Workers Compensation Insurance to cover all its employees. You are not required to be represented by an workers compensation attorney to make a claim but remember that your employer and its Insurance Company will be represented, at least, by an experienced claims adjuster and probably, also, by a competent attorney. In case of a dispute, you too should be properly represented or you will be at a serious disadvantage as there are many pitfalls for the unrepresented injured worker.
What benefits are available?
Under California Workers Compensation Law you are entitled to certain benefits. They fall into the following categories:
- Medical benefits – Medical benefits include all medical and hospital benefits reasonably necessary to cure or relieve from the effects of the injury. This includes reimbursement at 50 cents per mile (during 2010, rates vary for different years) for travel to and from the doctor’s office. If your employer or their insurance company has not set up a Medical Provider Network, then your employer has a right to send you to a doctor of his choice for the first 30 days of treatment but you have a right under certain conditions to change doctors. After January 1, 2005, if your employer or their insurance company has established a Medical Provider Network, you may be required to get all medical care from that network, although you will be entitled to change doctors within the network. If your employer does not properly notify you of the network, you may be able to choose a doctor outside the network.
Any time you have a work-related injury which requires medical attention, you will be eligible for these benefits and they can be awarded into the future as needed. If your employer delays in determining whether to admit that you were injured at work, they will still be responsible for medical care up to $10,000.00 while they decide. If they deny you were injured at work, they are not responsible for medical care unless it is later determined by the court that your injury was caused by your work.
- Temporary Disability – If your injury or condition requires you to miss more than three days of work or causes hospitalization, you should receive temporary disability benefits. Temporary disability is paid at the rate of two-thirds of your average weekly earnings (A.W.E.). The maximum average weekly earnings considered varies, depending on the date of your injury. There are also minimum temporary disability rates. As of 2015, the minimum is $165.49 and the maximum is $1103.29 per week. You will need medical proof that you are unable to work. These workers compensation benefits are usually paid bi-weekly.
- Permanent Disability – If your injury or condition results in some permanent impairment, you will be eligible for Permanent Disability. The amount is determined by a complex formula which reduces the disability as described by the doctor to a percentage and then raises or lowers that percentage depending on the body part you injured , your age and your occupation. There is a certain dollar amount payable for each percentage, ranging from $690.00 for one percent to $242,257.50 for 99.00 percent, for injuries in 2006 through 2012. Permanent disability dollar amounts in 2013, 2014 and forward have increased rates based on Senate Bill 863.
If you are one hundred percent disabled, you will receive your temporary disability rate for life. If your permanent disability is greater than 70%, you also get a “life pension.” That is a different amount per week for the rest of your life, after the amounts described above are paid out. Life pensions, including those for 100% disability are subject to a cost of living increase tied to the Average Annual Weekly Wage for the State of California.
It is possible to have a ratable permanent disability and still be able to return to your old job. Permanent disability benefits for all percentages less than 100% are paid at the rate of $140.00 to $290.00 per week (depending on the amount of disability and the date of injury) paid bi-weekly until the dollar amount is paid. Bi-weekly advances should be paid as soon as you are no longer eligible for temporary disability if the insurance knows you have some permanent disability depending on your date of injury.
For injuries on or after January 1, 2005, your permanent disability dollar amount will vary depending on whether your employer offers you a job to return to, which is either your usual job or a modified or alternate job that pays within 85% of your usual job. If the employer has more than 50 employees and offers you job, you get a 15% reduction in your permanent disability, whether or not you take the job. If he does not offer a job, you get a 15% increase in your weekly rate. For injuries after January 1, 2013 or later there is no longer and increase or decrease and the disability is at a flat rate.
- Vocational Rehabilitation – You may have heard that injured workers are entitled to retraining or Vocational Rehabilitation. That is no longer true; those benefits were eliminated for all injuries which occur on or after January 1, 2004 by the reforms. For some reason many doctors continue to put in their report a paragraph about the injured worker being eligible (or not) for vocational rehabilitation. Don’t let that fool you. There is no longer any means to receive those benefits even if you were injured before that date.
If you were injured after 1/1/04, you are eligible for a Supplemental Job Displacement Benefit, or “voucher” which can only be used for a training school. The amount depends on your level of disability, with a maximum of $10,000.00 You may use 10% of the voucher to pay a counselor to help you find appropriate training. For injuries after 2013, the voucher is paid at a flat rate of $6000. Voucher cannot be settled in a lump sum settlement.
- Death Benefits – Certain persons dependent for support or partial support on a deceased employee may be entitled to Death Benefits if the death was related to employment. It is not necessary that the death occur at work if the condition which caused the death is job related.
- Compensable Consequences -If your initial work related injury causes any other problems, you are entitled to all benefits for these subsequent “compensable consequences” just as if they occurred at work. Some examples are
(1) Psychological depression caused by severe pain of your work injury,
(2) A fractured wrist which occurs in a fall caused by your industrially injured knee giving way,
(3) Injuries incurred in an automobile accident on the way to the doctor for your work injury,
(4) Injuries caused by medical malpractice of a doctor treating your industrial injury,
(5) A back injury caused by limping because of your industrial knee or ankle injury. Keep this in mind if anything like this happens to you.
For injuries after January 1, 2013, there may be no permanent disability for certain compensable consequences such as psychological stress, sleep impairment, or sexual dysfunction.
Workers compensation is not the same as a civil case
All of the above are “benefits” and are not the same as the “damages” you receive in a non-industrial “civil case” like a car accident. The benefits are usually less than the award in other type accidents but California Workers Compensation Law has the advantage of being a no-fault system. Therefore, you do not need to prove the accident or injury was anyone else’s fault. You can recover if you tripped over your own feet, if it happened at work.
When to apply
You should notify your employer as soon as you can after you are injured or after you discover that your condition may be related to your job. At that time you should ask your employer for a claim form. You complete lines 1 through 7 and sign on line 8. The employer completes the rest which gives you the name, address, and phone number of the Workers Compensation Insurance Company which covers your injury. If your employer refuses to give you a claim form, consult your attorney If you received some benefits and your condition gets worse you may be able to re-open your case up to five years after the date of injury. If there is any question about the time limits, do not hesitate to consult your workers compensation attorney.
Related civil claims
It may be that a defective product (chemical, machine, etc.) or a negligent “third party”(not employed by your employer) is a cause of your injury. In this case, you are entitled to your workers compensation benefits and to a civil claim or lawsuit against the other parties. However, in such cases, the Workers Compensation Insurance Company may be entitled to reimbursement from your “third party” claim. Your attorney can explain this and help to arrange the most favorable settlement for you. If you believe that you may have been injured as a result of any defective product or the negligence of any one not employed by your employer, you should be sure your attorney knows about this possible civil claim.
In order to prove your permanent disability claim your work injury must be described in the terms used by the Workers Compensation Board to “rate” permanent disability. For this reason, you may be referred by your attorney and the insurance company to an agreed doctor who will examine you and write reports. This doctor may not be the same doctor who has provided your treatment. If they cannot agree, or if you do not have an workers compensation attorney, you may be required to request a list of three doctors from the state.
If you have no workers compensation attorney, you may pick any one of the three names on the list. If you are represented by an attorney, your attorney and the insurance company (or their attorney) will each be allowed to strike one name from the list. The remaining doctor will provide an alternate opinion to that of your treating doctor.
It is important that you give an accurate history of your injury and disability to each of the doctors you see because it is from these reports that the determination of the dollar amount of your permanent disability benefits is calculated. Before attending any such exam you should make notes for yourself so you don’t forget any important facts or symptoms and you should briefly discuss these notes with your workers compensation attorney.
Making a material false statement to gain advantage in a workers’ compensation case is a crime. That means you should give an accurate history to the doctors. If you lie to a doctor or insurance adjuster about your history or about your injury, you can go to jail.
Additional benefits and penalties
Your attorney can describe for you other features of the Workers Compensation laws which include penalties recoverable by you from your employer for discriminating against you because you were injured or filed a claim, for committing serious and willful acts which endangered the safety of his employees, and for failing to have Workers Compensation Insurance. The Insurance Company or the uninsured employer may be liable for penalties if they unreasonably delay payment of any benefits to you. There are automatic Penalties of 10% for failure to pay benefits on time. Normally you should receive your check every 14 days. You should save the envelope from each to confirm whether the next check was mailed on time.
Settlement or trial
Many cases are settled without trial. The settlements are of two kinds. In a Compromise and Release, you give up all rights to future benefits and settle for a lump sum. This is usually only possible if you are no longer employed by the employer you are settling with. The other form of settlement is to agree to the same terms that judgment would probably take. This is called a Stipulated Findings and Award and you generally retain your future medical benefits and the Permanent Disability benefits are paid bi-weekly. That is also the case when there is a trial and an award from the judge.
The trial of a Workers Compensation case is not as formal as a civil trial. There are no jury trials in California Workers’ Compensation cases. The judge is an Administrative Law Judge. He or she is required to interpret the law liberally in favor of providing workers compensation benefits.
Attorney fees and costs
The workers compensation attorney fees are set by the Workers Compensation Judge in each case. In the Los Angeles area they are generally 15 percent of your award. They are deducted from your award. The attorney will be paid directly by check from the Insurance Company just as you are.
Payment to the doctors will be separate and not deducted from your settlement. You will not be required to pay any money to the attorney or anyone else, out of your own pocket. There are no filing fees in a Workers’ Compensation case.
California Workers Compensation Law is a complex and specialized field of law. This memorandum attempts to touch on the main points but your workers compensation attorney can provide you with an explanation of the law as it affects your particular injury.
The Uncompensated Worker:
Financial Impact of Workers’ Compensation
Few studies have examined how household finances are affected by receiving workers’ compensation in lieu of regular wages. As such, CAAA is excited to announce that WorkCompCentral has just released a special report on the financial impact of workers’ compensation on injured workers and their families.
The report uses realistic scenarios to estimate the financial effects of a work injury. The scenarios show that a brief work disability often results in a sharp cut in take-home pay. An extended disability lasting for months can cause many injured workers to struggle to meet their household expenses, forcing these employees to dig into their savings and risk losing their financial cushion.
The workers’ comp system is intended to pay for itself and not burden the economy. This is the first report to go beyond anecdote to explore the risk of family instability while an injured worker recovers.
The bottom line: States can no longer ignore the financial impact of workers’ compensation on not only workers, but also the state’s limited public resources for struggling families.
Financial Impact of Workers’ Compensation
Cleveland & Metz Workers’ Compensation Lawyers Practice Work injury law in the Inland Empire
Rancho Cucamonga, CA – December 23, 2015 – The Law Offices of Cleveland & Metz are work injury lawyers and personal injury attorneys that practice in the Inland Empire focusing on the representation of injured workers and their families. Their firm has been representing injured workers and their families since 1997, serving all Inland Empire communities including Rancho Cucamonga, Fontana, Rialto, San Bernardino, Ontario, Riverside, Eastvale, Moreno Valley, Bloomington, Colton, Highland, Mira Loma, Loma Linda, Corona, Norco, Banning and Beaumont.
The Worker’s Compensation and California accident attorneys at Cleveland & Metz are sustaining members of the California Applicant Attorneys Association. The California Applicant Attorneys Association provides the highest level of education for work injury lawyers and provide advocacy for injured workers in the legislature. Workers compensation attorneys that are members of this organization actually fight for the rights of injured workers by attorney participation and action. The work injury lawyers at Cleveland & Metz have spent time in the California legislature fighting for the rights of California injured workers. Charles Cleveland is a past president of the Greater Inland Empire Applicant’s Attorneys Association and is a current board member of the California Applicant Attorneys Association. Charles Cleveland as a certified Specialist in Worker’s Compensation law by the California State Bar Association. John is an experienced trial attorney.
The work injury attorneys at Cleveland & Metz appear and aggressively pursue workers compensation cases routinely at all three of the Worker’s Compensation appeals Board for Inland Empire injured workers. The Workers Compensation Appeals Boards for Inland Empire residents who suffered a worker’s comp injury are located in Pomona, San Bernardino, and Riverside. Their workers compensation attorneys have over 40 combined years of experience in court at the Pomona, San Bernardino, and Riverside Workers Compensation Appeals Boards.
Choosing a worker’s compensation attorney is very important. Hiring a local and highly experienced work injury lawyer will get you the work comp benefits you deserve. Hiring an out of town attorney you find on TV or radio can have disastrous effects on your case as your case will likely get filed in a court far away from you. Do your Workers’ Compensation Lawyers research online with reviews and with the California State Bar before you choose an attorney.
We look forward to assisting you in your work injury or accident claim.
Workers Comp Law Summary for 2015
Workers compensation had a difficult year in the State of California. Many bills which would’ve helped injured workers were vetoed by the governor. The following is a summary of the laws that were passed and some of the bills that the governor vetoed regarding workers compensation in the state of California.
Work injury victims are often the targets of adverse legislation however our office will continue the fight to push for fair and just Worker’s Compensation laws and reforms in the state.
Assembly Bill 1124, by Assemblyman Henry Perea, D-Fresno, orders the DWC to adopt an evidence-based list of prescription drugs that will be approved for injured workers. The division must consult with doctors, pharmacists, labor and management when developing the formulary.
AB 1124 requires the formulary be updated on at least a quarterly basis. It creates a pharmacy and therapeutics committee including pharmacists, physicians and the DWC executive medical director to review those updates.
Other workers’ compensation bills passed in 2015 include:
- AB 438, by Assemblyman David Chiu, D-San Francisco, requiring the DIR and DWC to translate workers’ compensation claim forms, applications for the Return-to-Work Supplement program, the Supplemental Job Displacement Benefit voucher and DWC fact sheets into Chinese, Tagalog, Korean and Vietnamese.
- AB 822, by Assemblyman Ken Cooley, D-Rancho Cordova, stating a final determination in an insolvent carrier’s liquidation proceedings is not needed before a covered claim can be submitted to the California Insurance Guarantee Association. The bill also gives a person filing a claim one year to challenge a written denial. If the denial is based on failure to exhaust other insurance options to pay benefits, it must be refiled within six months of the time that other insurance has been exhausted.
- SB 542, by Sen. Tony Mendoza, D-Artesia, which adds the phrase “medical provider network” before references to the independent medical review process established by Labor Code Section 4616.4 in order to clarify and differentiate reviews conducted within an MPN and IMRs that review utilization review decisions. The bill also requires every MPN to post on its website contact information for the network and its medical access assistants. The bill also includes a provision stating approval of a major modification of an MPN extends approval of the network for four years, but approval of a minor modification does not.
- SB 623, by Sen. Ricardo Lara, D-Bell Gardens, declaring a person can’t be excluded from receiving benefits from the Uninsured Employers Benefits Fund or the Subsequent Injuries Benefits Trust Fund based on citizenship or immigration status.
Gov. Jerry Brown also vetoed three workers’ compensation bills this year.
Brown said AB 305, by Assemblywoman Lorena Gonzalez, would have replaced the American Medical Association’s rating system with an “ill-defined and unscientific standard.” The measure would have mandated the impairment rating for breast cancer be equal to the rating for prostate cancer. And it would have prohibited apportionment decisions based on pregnancy or menopause. Unfortunately this bill is vetoed. Our colleagues at the California applicants attorneys Association were instrumental in getting the bill to the Gov.’s desk and would’ve affected apportionment for thousands of injured workers who have their permanent disability awards apportioned away to nonindustrial fictitious causes.
Brown vetoed AB 1451, by Assemblyman Rocky Chavez, R-Oceanside, which would have extended salary continuation benefits under Labor Code Section 4850 to include lifeguards employed by the city of Oceanside. Brown said the city can negotiate workers’ compensation benefits as part of the collective bargaining process.
Finally, Brown vetoed AB 1542, by Assemblyman Devon Mathis, R-Visalia, and Assemblyman Ken Cooley, which would have required the DWC to reestablish the qualified medical evaluator designation for neuropsychology. The DWC eliminated the designation in September on the grounds that neuropsychology is not a specialty recognized by any licensing board in the state. Brown said the bill undermines the authority of the DWC to apply consistent eligibility standards for QMEs. Unfortunately neuropsychologists do not have a board specialty which was the basis for the governor’s veto of this bill. Again this takes away a much-needed specialty in neuropsychology for qualified medical evaluators needed by injured workers in the state of California.
Six Charts Explain How Workers’ Compensation Is Deteriorating
by Jessica Schieder, 3/30/2015 Click here for full article
Workers’ compensation is a state-based government program that has protected American workers for close to a century. Throughout the early part of U.S. history, injured workers were taken care of by the communities they were a part of: churches, worker’s benevolence associations, neighbors, or extended family. But when workplace deaths and injuries soared during the industrial revolution, government stepped in to help.
Today, workers who are injured on the job or become ill after long-term exposure to workplace hazards are able to collect workers’ compensation. This financial support helps them pay medical bills, offers compensation for lost wages, and provides income to help pay for their living expenses while they are out of work. This mandatory insurance system is designed to provide a safety net for people who suffer harm on the job.
To pay for this program, employers contribute to a state program for the benefit of their employees. Each state sets the rate it charges employers, based on the risk level of a workplace. This rewards and encourages employers with safer workplaces since they pay a lower rate for their employees than workplaces with worse injury rates. States also set the benefit levels paid to injured workers, which vary dramatically across states. Additionally, there is no federal minimum level of benefits that a worker can count on in the event of an accident.
Recent reports paint a picture of a workers’ compensation system that is failing to adequately protect workers.
Employers are paying less into the workers’ compensation system than in years past, and the families of injured workers in many states are receiving less support.
For example, North Dakota employers were paying $2.39 into workers’ comp for every $100 in wages in 1988. By 2014, this amount had fallen to $0.88 – meaning employer contributions to workers’ comp had dropped by more than 60 percent. Over the same period of time, North Dakota increased the standards it requires for workers to qualify for workers’ comp benefits; as a result, the percentage of workers’ claims that were denied increased by 25 percent. North Dakota has been increasingly relying on out-of-state doctors to resolve claim disputes—these doctors rule against the judgment of a patient’s personal doctor most of the time, further reducing benefits.
These six charts explain how workers’ compensation is being eroded today and why the system is increasingly unequal and inadequate.
1. Workers’ compensation is surprisingly unequal between states.
There are dramatic disparities between the workers’ compensation benefits injured and ill workers are able to receive in different states, leaving many workers with unequal and inadequate compensation. In investigating the arm amputations of two men on either side of the Alabama-Georgia state line, NPR and ProPublica found a stark difference in the amount of workers’ compensation each worker was eligible to receive over their lifetime. One worker who lived and worked in Alabama received just $45,000 for the loss of his arm, slightly less than the $48,840 maximum lifetime benefit allowed under Alabama law. Less than 75 miles away in Georgia, another worker was awarded benefits that would last his lifetime, potentially totaling more than $740,000 after losing his arm in a similar industrial accident.
To see how a worker in your state would be compensated for the loss of a limb, try out this interactive toolfrom ProPublica.
2. The amount employers pay into workers’ compensation programs is at historic lows.
Businesses are quick to complain that the cost of contributing to workers’ compensation programs are eating into their profits. But the premiums are at historic lows, despite increases in health care costs. In turn, states with stingier worker compensation programs have in recent years marketed themselves as business-friendly to companies looking to cut costs.
See what employers in your state are paying in premiums to support workers’ comp.
3. Workers’ comp is not burdening business.
Nationally, workers’ comp only accounts for 44 cents of the average $31.32 that private employers spend on each worker per hour. This means that the program makes up roughly 1.4 percent of the cost of compensating employees.
4. The costs of workplace injuries and illness have shifted to workers.
Recent changes in workers’ comp at the state level have made it more difficult for injured or ill workers to receive the full benefits they would otherwise be entitled to. In turn, workers’ comp now makes up only about 20 percent of the cost of reported injuries or illnesses. Workers and their families bear at least half of the cost of their injuries, although the real number is likely higher as many injuries go unreported.
Failing to cover the full cost of injuries or illness on the job disproportionately hurts low-income workers. Lower-wage workers are also the least able to absorb the costs of an injury. Because families are unable to shoulder these costs, taxpayers are being asked to take on a greater share of the costs of workplace injuries and illness through public assistance programs like Social Security Disability Insurance.
5. Not all workers are covered by workers’ compensation.
Regulations vary by state, but generally contract workers, temps, and self-employed workers do not qualify for workers’ compensation. Thirteen states also exempt businesses with very small numbers of employees from having to provide workers’ comp benefits. This means these individuals are largely unprotected in the event they are injured or fall ill on the job.
At last count, independent contractors or contingent workers made up 30 percent of the workforce, equal to 42.6 million people. The portion of Americans characterized as freelancers is expected to surpass 40 percent of the workforce by 2020, leaving tens of millions of American workers without access to workers’ comp. Many workers are mischaracterized as independent contractors by their employers in order to reduce labor costs. This practice deprives workers of benefits and puts them outside of many legal protections in order to increase profit margins.
6. The U.S. can do a better job of protecting workers.
The United States has fallen behind other industrialized countries in its efforts to reduce workplace deaths and injury. While the United States has historically been a global leader in workplace safety, budget cuts for the agencies regulating workplace safety, coupled with relaxed standards and more industry self-regulation, have led to U.S. workers facing greater risks than their counterparts in other nations. Countries like the United Kingdom have prioritized workplace safety and worker fatality rates have fallen at a faster rate than in the United States, where fatalities have fallen but less quickly.
The chart below compares the frequency in which workers were killed on the job in the United States, the United Kingdom, and Germany in 2011, the most recent year for which standard European data is available.
Workers compensation benefits: $120 Million Return to Work Fund
We are all aware of the devastating effect that SB 863 has had on workers’ compensation benefits, especially with respect to injured workers’ access to medical treatment. One of the few concessions for injured workers that came out of SB 863 was the implementation of Labor Code Section 139.48. This section created the Return to Work (RTW) Supplement Program which is funded annually in the amount of $120 million in order to provide supplemental payments for workers whose permanent disability benefits are disproportionately low.
On April 13, 2015, the RTW Supplement Program regulations finally went into effect. (reg. 17300-17310). The program is based on the findings of studies done by RAND in February of 2014 entitled “Identifying Permanently Disabled Workers with Disproportionate Earnings Losses for Supplemental Payments.”
Eligibility for the program funds is simple enough, an injured worker must have sustained an industrial injury on or after 1/1/13 and must have received a supplemental job displacement benefit voucher for that injury pursuant to LC Sec 4658.7. Under Reg 17308, the amount of the payment from the fund is $5,000 to an eligible injured worker. However, there is a strict deadline for our clients to file the Application for the RTW program benefit and they have to apply for it electronically.
The deadline for our clients to apply is within one year from April 13, 2015 or within a year of when the Supplemental Job Displacement Benefits (SJDB) voucher was served on the injured worker, whichever occurs later. Also, for SJDB vouchers issued after May 13, 2015, the carrier has to attach notice, along with the voucher, to the injured worker explaining his or her eligibility for benefits under the RTW fund program. (reg. 17303)
So what about clients who received their voucher before May 13, 2015? There is nothing in the regulations that requires Defendant to inform the injured worker about his or her right to the RTW program benefit. If you have a client who sustained an industrial injury after 1/1/13 and has already received a supplemental job displacement benefit voucher for that injury, they need to be advised that they have until April 13, 2016 to apply for this $5,000 payment from the RTW program fund.
In order to apply to get the RTW program payment, the application must be submitted online only (no paper submissions) and will require a computer, scanner and printer. Also, our clients have to submit the application for payment on their own, there is no provision allowing for the application to be filed by their attorney. If your client doesn’t have access to a computer, scanner and printer, they’ll have to travel to their nearest Department of Workers Compensation (DWC) district office to use the computer in order to submit the application for the funds. You can find the office nearest you by clicking here: DWC office locator.
Most importantly, they need a copy of the actual SJDB voucher they have received in order to submit the application. The one year statute does not start to run until they were served with the voucher.
If the injured worker’s application for the RTW program payment is rejected by the Director, he or she can appeal that determination to the WCAB. (reg. 17309)
It has been almost 3 years since the passage of SB 863, and some of the regulations that were ordered to go into effect two years ago have only recently been implemented. One of the most intriguing sets of the new regulations involved the creation of the Return to Work Supplement Program. All of us likely have clients who are currently eligible for this $5,000 payment under the fund, but the clock is ticking on those who already received their voucher prior to April 13th of this year.
The Fiasco Starts Here: MPNs and Workers’ Compensation in Calif., By: Alan Gurvey, Esq., CAAA Board Member
Article originally published on WorkCompCentral, May 7, 2015, and is republished here with permission.
Recently I was interviewing a candidate for a vacant attorney position at our firm. I asked the attorney, who had spent most of his career as a defense attorney, what he thought the three most difficult challenges would be as an applicant attorney in today’s post-SB 863 environment. He first said, “Dealing with the applicants.” I responded by saying that isn’t so difficult if you have compassion and understanding and explain the law to them. Most of the applicants are not happy about it, but they understand if you are sympathetic to their plight. Then he said, “Dealing with apportionment.” I responded, “Well, if the doctors understand the basis for the apportionment as defined by recent cases, then at a deposition, typically a fairly accurate accounting of apportionment, if any, can be determined.” Finally, he said, “UR and IMR.” My response was, “Well, you’re getting closer, but laws of UR and IMR are fairly straightforward, notwithstanding perhaps being unconstitutional and unfair. They don’t cause as much of a challenge to us since there isn’t a whole lot we can do in most instances when treatment is denied, other than feel sorry for the injured worker.”
I then said to him, which I believe caused him a fair amount of surprise, that the biggest challenge facing the injured worker today is dealing with doctors in the medical provider network. This is where it all starts. When a new client comes into an applicant attorney’s office, if the case is accepted, or if it is within the 90-day decision period, the applicant attorney should be requesting treatment from a doctor in the defendant’s MPN. This, however, is a most challenging and arduous process that can drive even the most calm and stable person to pull his or her hair out. I have, in fact, noticed that the employees at our firm have less hair than they had before this MPN nonsense started.
So, here is a brief analysis with specific examples of why the injured worker in the state of California is behind the eight ball with an unfair advantage from the get-go.
First, locating the defendant’s MPN can be next to impossible. It is supposed to be readily available to the public by virtue of a well-publicized website, which is provided to anyone who requests it. However, what becomes complicated in many instances is that different employers and branches of insurance companies and third-party administrators use different MPNs. Many times one must know every specific piece of information about the insurance company: TPA, division or state entity that provides the specific relevant MPN.
Second, the websites are often set up in such a way that it is exceedingly difficult to peruse the doctors. It is almost as if the “owner” of the MPN specifically makes it difficult to manage so that it takes sometimes hours to navigate.
Third, and probably one of the biggest reasons that the MPNs are such a failure is that the doctors listed on the MPN are most often not available to handle a workers’ compensation claim or have been unceremoniously kicked off the MPN, despite their name remaining on the website. At some point, there was some noise that the Department of Industrial Relations would require all MPN physicians to sign an agreement that each doctor would agree to treat workers’ compensation applicants in order to maintain their status on the MPN. This has certainly fallen by the wayside.
In a recent survey of one MPN website, an assistant in our office called 55 doctors on one MPN. Out of the 55, only two were willing to consider treating the injured worker. Most of the doctors were not familiar with workers’ compensation, nor did they even know that they were on the MPN. Other doctors had moved. Others were no longer on the MPN, but their names remained on the website. There were at least six doctors who had died. Moreover, some of the doctors, who were part of a group health set-up, such as Kaiser, indicated that all of the decisions regarding treatment had to go through a different scheduling department, which had no connection with workers’ compensation. Then, there were those doctors who said they needed to review all of the medical records and reports and would “get back to us.”
While this charade goes on for each and every applicant, many hours of law firm time are lost. But what is even worse is that the injured worker does not have access to medical treatment, especially on an expedited basis, which often could prevent a medical condition from worsening and allow the injured worker to get back to work sooner. Fewer injured workers are being treated appropriately within the MPNs, so more hours are lost of productive employee work time.
There have been many instances when the doctors have requested to review the records before “they” decide whether they will accept the patient, notwithstanding their ostensible agreement to treat injured workers as part of their involvement with the MPN. Recently, on another case, we sent the records, which were voluminous, to four different doctors, all of whom refused to see the injured worker. It is indeed a fallacy to suggest that doctors on the MPN are there to provide treatment for injured workers.
Probably the most difficult problem that an applicant attorney faces in attempting to obtain treatment for an injured worker is obtaining authorization for a doctor to treat the injured worker within the MPN. It sometimes will take three or four weeks just to receive a return phone call or email from an adjuster where authorization has been requested by the doctor, our office, or both. Many adjusters seem to think that it is acceptable to ignore the request for authorization, while the injured worker suffers, and, of course, the doctors who are scared shirtless to be kicked off the MPN, absolutely refuse to treat without the authorization. Moreover, many of these doctors are afraid to say what may be required from a medical perspective because they feel they have a gun at their head. In fact, some MPN doctors have commented that they may be subject to malpractice or Medical Board discipline for failing to follow the Hippocratic Oath in treating injured workers due to the duress of the insurance adjuster, who does not possess a medical degree.
There is no quick fix to this within the MPN system. Many times, after three to four weeks of attempting to obtain authorization, the applicants’ attorney is forced to file for an expedited hearing to get into court to ask a judge to order the authorization. What typically happens is that once the parties are summoned to court for this purpose, based on the Declaration of Readiness to Proceed filed by the applicant attorney, the defendant says, “Oh, authorization was provided.” Yes, authorization may have been provided two days before the hearing. It is a colossal waste of time and waste of money to burden the courts with forcing an adjuster to authorize a simple examination with an MPN doctor. Yet, there are no easily obtainable sanctions or penalties that would prevent the defendant from stonewalling or ignoring the applicant’s request for authorization with an MPN doctor.
Finally, a huge problem with MPNs and the entire workers’ compensation system in the state of California is that probably 80% to 90% of the doctors who are on any one given MPN have no clue as to how to write a workers’ compensation report, which qualifies as substantial medical evidence. Nor do these doctors know how to write a Request For Authorization for treatment, which is now the standard for utilization review and independent medical review. Utilization review most often relies upon standardized medical guidelines such as the Medical Treatment Utilization Schedule, for which many MPN doctors have absolutely no clue as to how to provide the treatment request with the support of the MTUS. Moreover, it is probably in the best interest of the insurance carrier to ensure that most, if not all, of the physicians on an MPN have no understanding whatsoever of the workers’ compensation system, so ultimately, they will save money in treatment costs. If, in fact, these insurance carriers or self-insured employees were honest, and actually cared about the provision of reasonable benefits, they would ensure that doctors on the MPN had taken courses in understanding the nomenclature of workers’ compensation and understood how to provide RFAs, which would be the basis for obtaining treatment.
Furthermore, the law currently pits the treating doctor against the panel qualified medical evaluator, with each doctor’s report receiving equal weight before the court, under the Bonzo v. California Institute of Technology/Jet Propulsion Laboratory and Felix v. Verizon Wireless Amphitheatre cases. However, since most of the MPN doctors don’t know how to write a substantial medical evidence report based on the current workers’ compensation law, many times the applicant has virtually no chance of prevailing against an unfair and unreasonable PQME report. More often than not, the MPN treating doctor will not provide a thorough and well-positioned rebuttal report to the PQME report. This is primarily because he or she does not know how to do so, and the fact that the compensation to rebut the report is negligible versus what the PQME receives for his or her report provides little motivation for the doctor to spend time doing so.
Even more egregious is the fact that the MPN treating doctor does not have a clear legal basis to be compensated for review of records and reports, where the PQME does. This, in most instances, results in the applicant facing an unfair disadvantage as his or her treating doctor cannot substantiate, and, in many cases, chooses not to substantiate the Maximum Medical Improvement opinions and conclusions in the MMI report, notwithstanding one would think that the treating doctor should be in a better position to substantiate the conclusion since he or she has seen the applicant more often and has theoretically established a more informed relationship with the applicant.
So, who ends up suffering? Unquestionably, the injured worker suffers. The conditions that are not treated appropriately and expeditiously ultimately result in chronic pain and other secondary symptomatology that sometimes is worse than the initial injury. All of these conditions have compensable consequences that can cause more time lost from work than the original injury. Moreover, it is well known that the adjusters on these cases often will not send all of the relevant records to the utilization reviewers for one reason or another. Many of these MPN doctors have no interest in doing so either, since many of them work for group health organizations that have more pressing financial interests than workers’ compensation. And, furthermore, the final reporting of the MPN doctor is often deficient, resulting in an inability for applicants to receive benefits to which they are legally entitled.
In the end, it is an unworkable situation that has a domino effect on all of the other aspects of the workers’ compensation system. When the applicant attorney is spending hours and hours, weeks and weeks, and sometimes months and months attempting to find a doctor on an MPN who will treat the injured worker and provide reasonable and legally supportable reporting, precious time is lost for other injured workers who may require the time and focus. If the system was set up in such a way that authorization was provided to doctors who were committed to treating workers’ compensation patients, and committed to understanding the red tape involved in obtaining reasonable treatment, the whole system would run much more smoothly. However, it seems that the MPN system is set up as an intentional way to cause confusion, unresponsiveness, inappropriate treatment, unreasonable delays, and cost containment, without concern for the injured worker. This trickles down and ultimately costs all of the taxpayers significant money, as the insurance companies and employers are not paying for the real costs of injured workers in the system.
It will only be through advocacy and a clear understanding of this labyrinth that change will be promulgated, and the system will be usable again.
Alan Gurvey is managing partner of the Law Firm of Rowen, Gurvey & Win in Sherman Oaks, California.
California Medical Association survey results show major challenges for workers compensation physicians
California workers compensation system has undergone probably the largest transformation since its enactment in 1914. Senate bill 863 introduced a radical new concept called independent medical review which has become a quagmire for physicians and injured workers. Latest statistics show that an injured worker has an 84% chance of having the care, prescription, medical device, surgery or any other proposed treatment denied by independent medical review which essentially has mirrored the same statistics in utilization review denials.
Workers Compensation Physicians who treat injured workers have to run the alphabet soup of workers comp. RFA, IBR, UR, IMR, has made the system has become so labyrinthian in that many physicians are giving up. The new survey indicates some of the new problems with independent bill review. It is not cost effective for most physicians to utilize the system since it costs $250 to make a submission. For example if you have an x-ray that is billed at $175 and it is disputed by the insurance company it will cost the physician $250 to submit that Bill to independent bill review for a decision. That makes absolutely no business sense unless of course you’re the insurance carrier denying the payment for that bill. Many routine physicians bills, particularly for diagnostics and prescriptions are less or near $250.
The following is the news summary from the California medical Association:
California’s workers’ compensation system is arguably undergoing its biggest period of transformation since its enactment in 1914. Senate Bill 863, signed into law on September 19, 2012, initiated changes to the utilization review process, implementation of an independent medical review and independent bill review process, and a migration to a resource-based relative value scale payment system, among other changes.
In late 2014, after hearing complaints from physicians that these changes have resulted in patient care roadblocks, the California Medical Association (CMA) initiated a survey to solicit physician feedback on their experiences with the SB 863 reforms. More than 200 practices representing physicians in over 35 different specialties responded to the survey.
Sixty-seven percent of physicians reported that they were unable to gain authorization for needed patient care. Of those who reported difficulties with authorizations, 54 percent of physicians cited inappropriate denials of medically necessary tests, procedures or services as the greatest problem.
CMA’s survey also found that 68 percent of physicians do not believe the independent medical review process has been successful in ensuring medically necessary patient care is approved.
Additionally, 60 percent of physicians reported that the new Independent Bill Review (IBR) process has not been successful. Physicians overwhelmingly (90 percent of respondents) cited the downcoding of claims, resulting in underpayment, as the most significant problem. Respondents also reported that the submission cost of $250 to utilize the IBR process is cost prohibitive. Physicians also report that oftentimes when they do file an IBR request, the contractor responsible for issuing a written determination is not compliant with the 60-day response timeframe.
These survey results indicate significant challenges with workers’ compensation reforms and raise concerns as to whether the new processes actually incentivize the denial of necessary patient care and downcoding of physician claims. CMA is working with stakeholders to determine potential next steps to address the issues raised in the survey results.