Frequently Asked Questions

If you are injured at work, either from a specific injury or due to repetitive stress from work activities, A Workers Compensation attorney can assist you in obtaining your lawful rights to medical treatment, total temporary disability (wage replacement) if you can not return to work, and a compensable award if your injury causes permanent impairment. A workers compensation attorney familiar with the laws that protect injured workers, can work to advance your rights. You should not rely on the insurance company to protect your rights if you are an injured worker.

Workers Compensation was conceived as a benefit delivery system for injured employees, paid for by the employer’s insurance carrier. Insurance companies work on behalf of employers to protect them against losses that companies would otherwise have to pay out to injured workers. Although most adjusters won’t tell you this, the primary goal of most insurance carriers, generally speaking is to limit their expenses as much as possible, so as to maximize their profits. After all, insurance companies are businesses like any other, and the goal of every business is to make a profit. There is an inherent profit incentive for insurance companies to cut corners as much as possible, and thereby withhold, delay or deny benefits to injured workers, since payment of any benefits cost money. Most insurance companies ultimately answer to their shareholders. The shareholders are concerned about profit margins of the insurance companies they invest in, not the plight of injured workers. Insurance companies will only do what is minimally required of them by law, if even that. In some cases, insurance companies will even hire private investigators to follow injured workers around and take surveillance videos in the hopes of discrediting the injured worker. Most injured workers will ultimately find that insurance companies are less then responsive to their needs or requests. Insurance companies are certainly not an advocate for injured workers.

Not all cases warrant representation. Generally, you will NOT need representation if:

  • the nature your injury is minor, or requires only minimal medical treatment,
  • or if your injury resolves within a few months,
  • or if you lose little or no time from work,
  • or if it is the kind of injury that does not prevent you from returning to your normal employment.

However, you SHOULD obtain representation if any of the following applies to you:

  • after three months from the date of your injury or onset of symptoms, you continue to feel pain, and your pain prevents you from returning to normal employment, or engaging in normal activities of daily living,
  • your treating doctor has found objective evidence of impairment and injury as verified by X-Ray, MRI, or neurological exams,
  • you have lost significant time off work,
  • you develop depression or gastro intestinal problems as a result of your pain,
  • you can’t sleep because of pain,
  • your injury has significantly affected the quality of your life,
  • you are being denied benefits,
  • you are a surgical candidate,
  • you require referral to a chronic pain management doctor.

Under any of the above circumstances, you should consult with a workers compensation lawyer right away to protect your rights. Discuss with your attorney the possibility of filing a claim not just for your orthopedic injuries, but also for any secondary medical issues that arise as a result of the orthopedic injuries. The insurance companies will usually deny claims that involve secondary consequences as a result of the original injury.

A workers compensation attorney works on a contingency basis. This means, they collect their fee only after obtaining an award or benefits. Most courts will approve fees between 12-15% of the compensable award. You never need to pay an attorney out of pocket, or in advance.

You are always entitled to seek new representation if you are not satisfied with the representation from your current attorney. If you obtain a new attorney, or decide to self represent, your prior attorney will have the right to file a lien to collect any reasonable attorney fees for services rendered on your behalf (a lien claim may be filed with the Workers Compensation Appeals Board (WCAB) by any party seeking compensation for services rendered on behalf of an injured worker, and prevents the insurance company from closing their file without first adjudicating the lien). Before you obtain a new attorney, it is always best to see if you can talk things over with your present attorney. If you do change your attorney, the overall fee will remain 12-15%, and will be divided between your new attorney and old attorney, usually by agreement between the two attorneys. The overall fee will not increase.

Your attorney will seek a 12-15% contingency fee against any compensable award you receive. You do not need to advance payment of any sort. The fee is contingent, which means that if the attorney obtains no award, there is no fee. The fee will be awarded at the time that your case is settled. An administrative judge must approve the fee. If there is no compensable award, there is no fee, and you will not have to pay out of pocket, even if the attorney helped you obtain non-monetary compensation.

Click here, to link to “about the initial interview.” It is important that when you contact an attorney, you have at your disposal any and all paperwork connected to your workers compensation claim. This includes treatment reports, carrier notices, and any correspondence from the carrier and/or employer. You are more likely to obtain representation and receive a compensable award if you have been able to keep an organized file concerning your claim of industrial injury.

Workers Compensation only operates in the context of work related injuries. If your injury did not occur during the course of your employment, while on the job, then you will not qualify for workers compensation benefits. However, if your injury occurred as a result of another party, whether it was a traffic related accident, a slip and fall inside a commercial business, or the result of a defective product, you should consult with a personal injury attorney. You may be able to pursue a negligence action in civil court. Go to: www.kuvaralawfirm.com

AOE/COE means Arising Out of Employment/ during the Course of Employment. Workers Compensation is a no fault system, so if you are injured at work, you do not need to prove that your employer was negligent in some way. However, it is the injured party’s burden to show that the injury did in fact occur while at work, while employed as an employee, and while undertaking some activity for the benefit of the employer. The injury itself must have been caused by the accident, or employment conditions, and not from some other non-industrial related factors. Where there are disputes on these issues, a judge and/or a medical examiner will have to make a finding of fact as to whether the employment condition caused the accident. You should obtain an attorney if your case is denied on AOE/COE grounds.

An injury may be what is called a “cumulative trauma,” if it was caused by work over a long period of time (usually over a year). Typical examples of cumulative trauma injuries include carpal tunnel from repetitive typing, neck or back strains from ergonomically improper work stations, or hearing loss from repetitive exposure to loud noises. If you suspect that your work activities are causing injury, you should report it to your supervisor and hire an attorney.

If you are injured at work, or suspect that your work activities are causing injury, you should report your injury to your supervisor as soon as you can, and ask to be seen by a doctor. Your employer is required to provide you with a DWC1 claim form within 24 hours of requesting it. The top half is completed by the employee and the bottom half completed by the employer. If your employer does not provide you with a claim form, you may down load it from this web- site, by clicking here DWC-Form 1. You can also obtain the form, and instructions on how to complete it, from your local Workers Compensation Appeals Board (WCAB). Complete the claim form and give it to your supervisor, or human resource director. Within a few days, you should be contacted by the employer’s insurance carrier. They will notify you in writing with respect to your claim. If your employer refuses to provide you with their insurance information, you should contact an attorney immediately. Important tip: Be sure to list all the body parts injured on the DWC Form-1 affected by the injury. If you forget to list a body part, the carrier will deny it later if when you ask for treatment.

There are time limits for prosecuting your claim:

  • When you are given a claim form (DWC-Form 1), you should complete it within 30 days and return it to the employer, (this is especially important if you are terminated from employment, because if you wait too long, the employer may raise what is called a post termination defense).
  • You have one year from the date of injury to file an application of adjudication of claim (click to download), with the WCAB if no benefits have been provided.
  • If medical treatment or monetary payments of any sort were furnished by the employer or carrier, you have one year from the date of receipt of those benefits to file an application.
  • If you filed a cumulative trauma claim, alleging occupation disease or repetitive stress injury, the date of injury is considered to be the date on which the employee should have reasonably known that his/her injury was caused by work.
  • You have five years from the date of injury to reopen your case for new and further disability, when benefits have been provided and the claim accepted.

Generally, once you file a claim form or application, which effectively notifies the employer of your injury, the insurance carrier can take up to 90 days to investigate your claim and then accept or deny the case. The carrier can withhold all benefit accept medical treatment during this investigation period.

The WCAB is the special administrative court system set up by the State of California, whose sole jurisdiction is hear and review work injury cases. It is often referred to as the “Board” by attorney’s, judges and doctors. Every WCAB office has an Information and Assistance (I&A) officer who can help you with completing the necessary paper work if you are unrepresented. Click here to view the listing of WCAB’s throughout California.

If your orthopedic injury results in having to live with chronic pain, you may find that:

  • you become depressed and anxious.
  • you develop gastro intestinal problems such as acid reflux, ulcers, chronic constipation or diarrhea. This often occurs as a side effect of pain medications.
  • you lose or gain considerable weight.
  • you lose significant amount of sleep which reduces your daytime functioning.
  • sexual functioning is significantly diminished.
  • you develop diabetes and/or high blood pressure, or hypertension.
  • you develop pain in the opposite (non-injured) limbs due to overuse and overcompensation.

Discuss with both your doctor and your attorney any additional consequential medical or health problems that arise as a result of your injury. Your attorney may file allegations of additional injuries which could be compensable.

If your treating doctor indicates that you should be “off work”, you will be entitled to Total Temporary Disability benefits (TTD). This benefit is calculated as 2/3 or 67% of your gross weekly wages which is paid to you with no taxes withheld. While you are on TTD, you can NOT work. Working and receiving TTD benefits is considered workers compensation fraud, which is a felony. Sometimes the treating doctor will indicate that you can return to work but with certain restrictions, such as no lifting more than 15lbs, or no prolonged standing or walking, etc. If the doctor allows you to return work with restrictions, the employer then must determine whether it can accommodate you with what is often referred to as light duty work, or temporary modified work, or alternate employment. If the employer can not accommodate you, then TTD benefits should be paid by the insurance company. If the employer can accommodate you, then you will need to report to work, or risk termination due to job abandonment. If you are terminated due to job abandonment, you may lose your right to a vocational retraining voucher, among other benefits.

If your employer retaliates against you for filing a workers compensation claim, you may file a penalty petition directly against the employer. You would file a 132a petition. The other possibility is to file a civil claim against the employer for unlawful termination, discrimination based on physical disability, or harassment. You should seek an employment attorney. To find an employment attorney linked to this website, click here (find an employment attorney).

If a medical doctor finds that your injury has incapacitated you entirely, or if the doctor has caused you significant work restrictions that prevent you from all meaningful employment, then depending on your age and education level, you may also qualify for Social Security Disability and Medicare benefits through the Social Security Administration office. Click here to link to more information concerning SSA benefits. Remember that qualifying for SSA does not necessary require injury at work, but rather, disabling medical conditions that prevents employment in the labor market. You may file both a workers compensation claim and a social security disability claim at the same time. However, there are certain conditions and limitations that apply when you are eligible to receive SSA benefits and Workers Compensation benefits, at the same time. Your attorney will need to explain this to you.

Recent changes in the workers compensation field have dramatically affected how medical treatment is provided. In most circumstances, you will be required to treat within the employer’s or insurance carrier’s Medical Provider Network (MPN). Generally, this is not the same provider list as your private health carrier, if you have private health insurance. Click here to link to a list of common insurance/employer MPN’s. If you are represented, you should discuss selection of an MPN doctor with your attorney. Under some circumstances, you will not need to treat within the MPN, or no MPN exists. This is a matter to discuss with your attorney if you have one. If you do not have an attorney, you will need to contact the insurance carrier to find out how to obtain a list of MPN doctors. If the carrier fails to provide you with information to assist you in selecting a doctor, then it is recommended that you find a doctor or chiropractor willing to treat you, regardless of whether they are in the carrier’s Medical Provider Network. In any event, for the first 30 days after your injury, your employer has complete control over which doctor you are to be treated by. Only after the first 30 days, will you be allowed to change to a new treating doctor of your choice, though limited to within the MPN.

Only if absolutely no other doctor can be found to treat your injuries. If you are recently injured, you must select treatment from the medical provider network (MPN) if one exists, and assuming that you have been provided notification regarding the insurance carrier’s Medical Provider Network (MPN). The carrier is obligated to pay for medical treatment within the first 90 days of your injury, or until they formally (by written notice) deny your case. If the carrier denies your case, any medical provider may treat you (whether or not they are on the MPN), but the medical the provider will have to treat you on a lien basis. Even in denied cases, it is best to treat with doctors familiar with the reporting requirements of the workers compensation system, in order to well develop the medical evidence in your case. The medical doctors and chiropractors who perform services under workers compensation are familiar with the stringent reporting requirements. Your private doctor most likely is not going to generate timely or comprehensive reports (i.e., progress reports in 45 day intervals) to the insurance carrier. As a result, you may be denied other benefits that you are entitled to under workers compensation. You should only go to your private doctor as a last resort, as an emergency stop-gap until you can find a doctor who will treat under workers compensation system, or an MPN doctor.

Anytime your treating doctor recommends a treatment regimen, (i.e., physical therapy, chiropractic manipulation, an epidural, a surgical procedure, etc.), the carrier is allowed to have a so called ‘independent’ doctor review the file, and determine whether the recommended treatment follows standard treatment guidelines adopted by the State of California. This is called, Utilization Review (UR). Essentially, the idea is that all treatment recommendations should conform to scientifically accepted evidence-based treatment protocols. In theory, the UR procedure was set up to prevent treating doctors from requesting treatment procedures that have been untested, or is widely viewed as unnecessary. It was also meant to relieve adjusters and examiners from making treatment authorization decisions since the adjuster has no medical background to make such authorization decisions. Unfortunately, it seems to have become a vehicle for carriers to deny legitimate treatment needs.

Utilization Review was recently enacted into law and has led to quite a few problems. The carriers fail to provide the U.R. doctor the medical file, thereby delaying authorization for treatment. The U.R. doctor is not even a doctor, but a nurse or a physician assistant. The U.R. review doctor fails to provide a recommendation within the time frame mandated by law (which is no more than 14 days from the time that treatment is requested). I have listed just a few of the most common problems. The remedy is to file an expedited hearing on a medical treatment issue with the Workers Compensation Appeals Board (WCAB), or proceed to an Agreed Medical Evaluation or Panel QME. If certain treatment is already recommended by the Medical Evaluator, there is no need to defer to the UR doctor.

Yes, there is a limit to the amount and type of treatment you will be authorized to receive. The treatment you receive will be determined by either Utilization Review, the recommendations of the Panel Qualified Medical Evaluator (QME), or the Agreed Medical Evaluator (AME). In terms of chiropractic care, occupational therapy, and physical therapy, treatment is capped to 24 visits by law. However, many chiropractors seem to be providing additional care beyond the 24 visit limit, or the carrier is willing to waive the 24 cap limit. Sometimes, disputes arise between the medical provider and the carrier, over the amount and/or type of treatment provided. Many carriers will object to treatment that exceeds the capped limits, or are not authorized by Utilization Review. Generally, these disputes will not involve the injured party, and are adjudicated at the WCAB at a lien conference, usually after the case in chief is resolved.

You should obtain the prescription or doctor request for any given treatment, and the Utilization Review (U.R.) denial. The doctor may appeal the U.R. denial. Sometimes, the U.R. will reconsider if your treating doctor and U.R. doctor engage in what is called a peer to peer review. Otherwise, if there no legitimate basis to the U.R. denial, or if the U.R. denial is more then 14 days late, then you or your attorney may file for an expedited hearing at the WCAB, or simply proceed to a medical evaluation.

No. It is illegal for medical providers to request payment for medical services from an injured worker. It is important that you inform the medical provider of the workers compensation insurance carrier information as soon as you select a doctor. If the carrier refuses payment to the doctor, the remedy for the medical provider is to file a lien claim with the Workers Compensation Appeals Board. This is true even in denied cases, where the carrier objects to treatment billing as non-industrial. At the end of the case, an administrative judge will set a lien conference and determine whether the insurance carrier is obligated to pay the medical bills. Even if a judge were to decide against the medical provider, you would not be liable for payment of the medical bills. The risk of providing treatment is on the medical provider, not the injured worker.

Your treating doctor, or a medical evaluator, may determine that your condition has reached permanent and stationary status (P&S), or maximum medical improvement (MMI). This occurs generally speaking, when you have exhausted all reasonable and necessary medical treatment to cure and/or relieve the effects of the injury. For example, once you have been provided with up to 24 chiropractic or physical therapy sessions, and assuming you are not a surgical candidate, or a candidate for epidurals, your doctor may issue a permanent and stationary report and release you. The permanent and stationary report is a medical-legal document that may be used to finalize your claim. Either party may object to any aspect of the report, and proceed to a medical-legal evaluator (read more about this under Medical-Legal Evaluation Process). After you have been released by your doctor, you may still continue to see a doctor on a limited basis, however, the treatment most likely will be for maintenance purposes only (e.g., refilling medical prescriptions, or to treat for flare-ups, etc.)

You are entitled to Total Temporary Disability (TTD) benefits if: a) Your claim has been accepted by the insurance carrier, AND Your treating doctor has written a report indicating that you should be off work, OR b) Your treating doctor has written a report that indicates you can return to modified or light duty work, but the employer has no work within your restrictions.

If you are entitled to TTD benefits, and the carrier is not providing them, you may file an expedited hearing with the WCAB. Having an attorney would be beneficial as your attorney would be able to counsel you regarding the necessary evidence to bring to court. Your other option is simply to apply for State Disability Insurance through the Employment Development Department (EDD).

For injuries that occurred after 1/1/04, you are entitled to a supplemental job displacement voucher (SJDV). This is a non transferable training voucher that you may redeem at a certified post secondary vocational school. The value of the benefit depends on your level of impairment, but generally speaking, ranges in value from $4000.00 to $10,000.00. Generally, it can only be utilized after you settle your case. You will be entitled to the benefit if: 1. You have sustained some level of permanent impairment AND, 2. Your employer is unable to offer permanent modified or alternate work, AND 3. The medical evaluator has indicated that you cannot return to your usual and customary position.

If you were injured on or before 12/31/03, you may be entitled to vocational rehabilitation benefits and assignment to a vocational rehabilitation counselor. Your attorney should recommend you to a vocational counselor.

Permanent partial disability is derived from the medical evidence, and the evaluator’s assessment of your physical condition, to the extent that your injury permanently precludes you from engaging in certain physical, social or work activities. If you attain permanent and stationary status prior to 1/1/05, by any doctor, then most likely your compensable award will be calculated based on work restrictions and your permanent partial disability will be expressed in the form of a percentage rating, which then translates into a compensable award. More...

You may hear the term apportionment being used by doctors, judges and attorneys. This is a very complicated area of law that has been subject to dramatic changes at Governor Schwarzenegger’s behest. The changes have been quite unfavorable to injured workers. In simple terms, apportionment refers to disability or impairment that pre-existed your injury, and contributed in some way to your overall level of disability or impairment. Medical evaluators are required to assess the extent to which preexisting factors or conditions (such as arthritis, scoliosis, degenerative disc disease, diabetes, etc.) may have contributed to causing your injury, and this is expressed in the form of a percentage. Under the old law, even if you had some degenerative conditions, so long as you were asymptomatic at the time of injury, then apportionment generally did not apply. Now, some evaluators have been apportioning to a variety of causative factors, even if you were completely pain free prior to the injury. For example, if you are overweight and have a knee injury, a doctor might find that a percentage of your injury was caused by your weight factor. Not surprisingly, the unfairness and arbitrariness of the law has caused a great deal of litigation, because ultimately, it is up to a judge to determine whether or not apportionment is valid.

In the case that you have incurred a prior work injury on the same body part that you currently claimed injury, the new apportionment rules dictate that you are only entitled to the difference between your prior award and your new award, assuming that you settled your prior case by stipulated award. For example, say you had a prior low back injury in 2005, and you stipulated that case to 20% with open medical. Then, in 2007, you sustain a new injury to the exact same body part (i.e., the low back). After the medical legal process, you find that you now have a 25% impairment rating. In terms of your award for the new injury, you will only be entitled to the difference between 20% and 25%, or 5% (or depending on pending case law, the difference in the monetary value between your old award and new award). This is true even if you completely recovered from your first injury.

For injuries that occur after 1/1/05, only one medical evaluator per specialty may be obtained. If you are represented, your attorney and the defendants will mutually agree on what is called an Agreed Medical Evaluator, or AME. The advantage is that your attorney will most likely know the quality of the evaluators report writing ability, or be confident enough of his/her impartiality, to ensure fairness in the evaluation process. More...

You can proceed to a medical evaluation any time there is a dispute over any of the following issues: 1. Utilization Review has denied a course of treatment and/or diagnostic that your treating doctor is requesting. 2. The doctor has released you to full duties without restrictions and you disagree with the assessment. 3. The doctor has issued a permanent and stationary report that you don’t agree with. 4. The doctor has released you to return to work with certain work restrictions, and you disagree with the restrictions indicated and/or the return to work status. 5. The doctor has indicated that your injury is not work related. This is not a complete list of all the disputed issues that may arise, just a sampling of the most common issues that can initiate the medical legal process.

The advantage of utilizing an Agreed Medical Evaluator (AME) is that the evaluators are very experienced in what they do, as many are in the business of exclusively evaluating patients, as opposed to treating patients. Therefore, an AME will usually address all the pertinent issues more thoroughly than a panel QME, who may not have as much experience doing evaluations. Moreover, since utilizing an AME represents an agreement between parties, most AME’s will strive to achieve a balanced and fair result. Remember, you can only proceed to an Agreed Medical Evaluator if you are represented by an attorney.

Generally speaking, the answer is no. For injuries after 1/1/05, you are entitled to either one Panel Qualified Medical Evaluation (PQME), or one Agreed Medical Evaluation (AME), per specialty. For example, you may be entitled to an orthopedic evaluator to address your orthopedic injuries, and a psychiatrist to address your psychological claim. If you obtain a Panel Qualified Medical Evaluation and Report, under most circumstances, you will not be able to get a replacement. There are certain exceptions, such as cases where there has been fraud, a lack of an interpreter, or if the report was more than 45 days late. However, in most cases, once you have a report or evaluator, you are stuck with that evaluator. The lesson here: choose your evaluator carefully. Consult an attorney before choosing an evaluator.

In some cases, if your treating doctor writes a thorough and well reasoned Final Comprehensive report, then a judge may consider receiving that report into evidence to rebut a panel QME. This could give you some leverage to negotiate a higher award, than you would otherwise receive from just relying on the panel QME. Rarely will a judge admit a treating doctor’s report to rebut the AME.

The time it takes to resolve your case varies widely and depends on several factors. Those factors include: the time it takes to obtain a med-legal examination, the number of evaluations you require from different specialties, the severity of your injury(ies), the number of body parts affected, whether surgery is necessary, and whether your case is accepted or denied, or requires an administrative hearing. If the case goes to trial, that could delay matters for years. As a general rule, most cases a take a minimum 9 months to resolve from the time of injury, and assumes a quick negotiated settlement without proceeding to court. The more complicated your case, the longer it will take to resolve. Some cases can take several years to resolve if there are complicated factors involved. Your attorney should be able to give you a rough estimate of how long your case will take to resolve at your first meeting.

A stipulated award, leaves future medical treatment open. Parties simply agree to a level of impairment based on the medical record. You receive an award paid out over a period of time, at a certain rate. The length of time you receive permanent disability benefits depend on your impairment rating. The higher the rating, the longer the payments are made. The weekly rate you receive the benefits depend on your wages at the time of injury, and/or the date of your injury. The maximum rate increases each year between 2003 and 2006. For example, the maximum rate for 2004 date of injury is $200.00 per week. The maximum rate for 2005 date of injury is $220.00 per week. The rate increases 15% if your employer has 50 or more employees, and can not offer modified or alternate work. Your future medical award is for life. However, the scope of the medical treatment will be determined generally by the Agreed Medical Evaluator, or the Panel QME. Also, future medical treatment may be subject to Utilization Review and treatment guidelines imposed by law. Chiropractic and physical therapy will be subject to treatment caps imposed by law. If your injury gets worse 5 years from the date of injury, you are allowed to petition to reopen your case and claim new and further disability. However, this would have to be supported by the medical evidence.

A Compromise and Release agreement closes your case entirely. You receive a lump sum single payment that includes your baseline impairment level and the value of future medical care as supported by the medical evidence. However, you lose the right to reopen your case within 5 years from the date of injury. Also, if you require medical attention in the future, then you would have to use the proceeds from the settlement to pay for your future medical expenses. The negotiated value of the future medical care is generally calculated based on the cost that the carrier would pay for the medical care, assuming it were authorized, and the probability that you would receive the medical care at all. Because not all medical care is authorized, and because the cost of the medical treatment is discounted for workers compensation carriers, generally the negotiated value of the medical care is significantly discounted. For example, the cost of an epidural injection to the carrier might be $1000.00 due to fee schedules and treatment guidelines imposed by law. If you were to pay for the service yourself out of pocket, you might pay $3000.00. The value is further reduced by the possibility of you never actually electing to obtain the treatment. By way of example, let’s say the medical evaluators indicate that the most medical attention you will need due to your injury is 3 epidurals, the insurance company may offer you $2000 dollars to close out that medical benefit. If you accept the offer, and end up not needing any epidurals in the future, you come out with an extra $2000. However, if you need to pay for even one epidural in the future out of pocket, you will have lost $1000 in the agreement (since a single epidural could cost you about $3000). Therefore, you should well consider whether it is in your interest to settle your medical benefits.

A Diminished Future Earning Capacity Expert (DFEC), is a vocational or economics professional hired by your attorney, to rebut the recently enacted permanent disability schedule. This is typically done to prove up a higher rating than the schedule would otherwise typically allow. In some cases, particularly for high wage earners who are injured and can not return to their usual employment, the permanent disability schedule fails to calculate true loss of earning capacity. This is due to inherent flaws in the one-size fits all method of calculating impairment and ratings per the permanent disability schedule. As a result, for many individuals, the awards are insufficient to compensate for true loss of future earnings. Whether or not the impairment rating in your case can be rebutted, or should be rebutted, depends on a variety of factors. Your attorney will determine whether your case is suitable for a referral to a DFEC expert, because not all cases warrant the time and expense of proceeding to a DFEC expert. If you are referred to an expert, he/she will analyze a variety of factors impacting your diminished earning capacity, such as your age, occupation at time of injury, your work history, your retraining needs, your wages at the time of injury, and your permanent work restrictions. The expert will determine what kind of jobs you can reasonably expect to be able to acquire given your work restrictions and education level, and then calculate loss of wages assuming there is a differential between pre-injury earning capacity and post injury earning capacity. You should ask your attorney whether or not it is feasible to pursue the time and expense of hiring a DFEC expert in your case.

If you are entitled to Medicare at the time of your settlement, and you wish to Compromise and Release your claim, then you will need to set aside a certain amount of your Compromise and Release award, into a self administered trust fund, from which you will need to pay down the cost of your medical care. The sufficient amount of funds allocated for the trust must be determined, usually by a third party hired by the insurance carrier, to fully assess the anticipated costs of your future medical care needs. The analyst hired by the carrier will review your medical records in order to determine anticipated future medical costs. This procedure is required because in most cases, if you are entitled to Medicare, and you wish to Compromise and Release your claim, most carriers will insist that the Medicare bureaucracy pre- approve the settlement and the funding amount for the Medicare Set Aside. Once the agreement is approved, and you establish the account with the funds from the Compromise and Release, then any medical costs incurred as a result of your industrial injury, will have to be paid from this account. Once the account is depleted, then Medicare will be legally obligated to pick up the medical costs for your industrial injury. If you are a Medicare beneficiary, be sure to inform your attorney. This is a complicated area of Federal statute that overlays with State law, and should be explained thoroughly. Also, it is a very time consuming process and often delays settlements for months.

Unfortunately, most people come to realize that workers compensation, as a benefit delivery system, is hardly adequate to compensate individuals for the loss of quality of life, the pain, the suffering, the lost income, and the stress that the ordeal has caused to family and friends, etc. Recent changes to the law initiated by Governor Schwarzenegger have made the inequities in the system even more glaring to the injured worker, with significant limitation in free choice of physician, 2 year TTD caps, an average 50% reduction in award levels, the significant scaling back of vocational rehabilitation, chiropractic care, physical therapy, and so on. Workers compensation does not compensate for pain and suffering, as in a personal injury law suit. Rather, the award system is quite formulaic, derived from objective findings by evaluators, and are ultimately translated into impairment ratings based on the rigid permanent disability rating schedule. The whole system is quite conservative, and arguably is bent against the injured worker. Public policy currently favors the insurance industry and employers, on the pretext that a strong economy and healthy job market that presumably requires a reigning in of workers compensation costs. The bottom line is that workers compensation, as a benefit delivery system, indeed does not fairly compensate or dignify injured workers. The avenue for change is political, and starts with activism. You should be contacting your state assemblymen, senators and the governor to let them know how you feel. If you are frustrated or angry about how you have been treated, you may wish to visit the California Applicant’s Attorney Association (CAAA) website to learn more information about what you can do to change the system. Go to www.caaa.org.