Workers Compensation

We provide full legal representation in the field of Workers Compensation Law

  • Certified Workers Compensation Specialist

  • Contingency fee only (you don’t pay until you receive an award)

  • Serving San Francisco, Alameda, San Mateo, Contra Costa, Marin, Sonoma, and Sonora counties

  • Brindamos servicios en Español

Eric T. Johnson is a Certified Workers Compensation Specialist with nearly two decades of experience advocating on behalf of injured workers. If you have a work related injury, Law Offices of Eric T. Johnson can you help you obtain your lawful rights to an award, medical benefits, total temporary disability (wage loss), and in some cases vocational retraining. Workers compensation is a benefit delivery system for injured employees. However, the primary goal of most insurance carriers and self insured employers is to limit their expenses as much as possible, to maximize their profits. There is an inherent profit incentive for insurance companies and employers to cut corners as much as possible. This results in the common practice to withhold, delay or deny benefits to injured workers. Insurance companies or large self insured employers are not an advocate for injured workers and in most cases, will never be forthcoming with benefits that an injured worker may be entitled to. Our job is to maximize the benefits that injured workers are entitled to receive under the often confusing and complex rules of the California Labor Code that govern work related injuries. We work on a contingency basis, so if we don’t recover for you, there is no cost to you.


Workers Comp FAQ

Getting Representation

Why do I need representation?

If you are injured at work, a Workers Compensation attorney can assist you in obtaining your lawful rights to: medical treatment, total temporary disability (wage replacement) if you cannot return to work and an 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.


Will the insurance company look out for my interest?

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 than responsive to their needs or requests. Insurance companies are certainly not an advocate for injured workers.


How do I know if my case warrants representation?

Not all cases warrant representation. Generally, you may forego representation if:

  • the nature and extent of 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., or doesn’t affect activities of daily living.

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 chronic 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.


How much does it cost for representation?

You never need to pay an attorney out of pocket, or in advance. A Workers Compensation attorney works on a contingency basis. This means, they collect their fee only after obtaining an award or benefits. All fees have to be approved by an administrative law judge. The carrier will usually pay the attorney directly.


What if I already have an attorney and want a new attorney?

You are always entitled to seek new representation if you are not satisfied with the representation from your current attorney. All you have to do is file a Notice of Dismissal of Attorney with the Workers Compensation Appeals Board (WCAB) and copy your attorney and the insurance company. 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. If you do change your attorney, the overall contingency fee will be divided between your new attorney and your previous attorney, usually by agreement between the two attorneys. The overall contingency fee will not increase.

 

Qualifying for Workers Compensation

What if my injury did not occur at work?

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. The Law Offices of Eric T. Johnson can provide referrals to a personal injury attorney. Also, if your injury or illness has prevented you from being able to return to work, you may qualify for social security disability, service retirement disability, long term disability or state disability regardless of whether it was work related or not. Whatever the cause of your injury, it will be important to discuss options with an attorney experienced in assessing your level of disability, against factors that will determine your qualifications for any number of public and private benefits.


What Does AOE/COE mean?

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 worker’s burden to show that: the injury did in fact occur while at work, was in fact an employee as opposed to an independent contractor, and was engaged in 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.


What if my injury was not caused by any specific accident?

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, etc. If you suspect that your work activities are causing injury over an extended period of time, you should report it to your supervisor and hire an attorney. These kinds of cases are typically denied by the insurance carrier, so representation by an attorney will most likely be a necessity.


How do I initiate a claim if I am injured at work?

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 regardless of whether the doctor is assigned by the employer, or is your own private care physician under a private group health plan. Your employer is legally required to provide you with a claim form within 24 hours of you requesting it. The top half (of the DWC Claim Form 1) is completed by the employee and the bottom half completed by the employer. If your employer does not provide you with a claim form, or refuses to acknowledge your claim once you complete the form, then you should consult with an attorney. You can obtain the form online. The form itself provides instructions on how to complete it. You can also obtain the claim form from your local Workers Compensation Appeals Board (WCAB). Once you have the claim form, complete the top half 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 injured body parts on the DWC-Claim Form 1 or accident report. If you forget to list a body part, the carrier will deny it later if and when you ask for treatment for the affected body part.


How much time do I have to file a claim for workers compensation?

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 with the WCAB if no benefits have been provided, and/or the claim is denied.

  • 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 Adjudication of Claim.

  • 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 and legally 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. During the 90 day investigation period, the carrier is not required to pay total temporary disability indemnity, but they are required to provide medical treatment.


What is the Workers Compensation Appeals Board (WCAB), and can they assist me?

The WCAB is the special administrative court system set up by the State of California, whose sole jurisdiction is to hear and review work injury cases. It is often referred to as the “Board” by attorneys, judges and doctors. Every WCAB office has an Information and Assistance (I&A) officer who can help you with completing the necessary paperwork if you are unrepresented. The WCAB courts in the Bay Area are located centrally in San Francisco, Oakland, San Jose, Santa Rosa and Sacramento.


What if my initial orthopedic injury causes additional medical problems?

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

  • you become depressed and anxious;

  • you develop gastrointestinal 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;

  • You develop a neurological sympathetic chronic pain syndrome in your upper and/or lower extremities, such as Complex Regional Pain Syndrome (CRPS) which has a neurological etiology.

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, or may provide counsel regarding other benefits such as Social Security Disability.

 

Returning to Work

Can I go back to work?

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 CANNOT work. Working and receiving TTD benefits is considered workers compensation fraud, which is a felony and can be prosecuted. 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 they can accommodate the employee by modifying the duties of the position, to conform to the doctor’s restrictions. This is often referred to as “light duty” work, or temporary modified work, or alternate employment. If the employer cannot accommodate you, then TTD benefits should be paid by the insurance company, though this benefit is capped at two years of payment and must be paid within 5 years of the date of injury. Also, TTD is only payable if the medical conditions are not ‘Permanent and Stationary’. 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 and further TTD benefits.


What do I do if my employer discriminates against me?

If your employer retaliates against you for filing a workers compensation claim, you may file a 132a penalty petition directly against the employer. 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. The Law Offices of Eric T. Johnson can assist you in finding the right attorney for a discrimination claim, if warranted.


What if my employer has underpaid me, or failed to pay overtime, or has not given me break time?

This is NOT a workers compensation claim. It is a wage claim which you can pursue with the CA labor relations board, or alternative civil action. If you need representation for this, the Law Offices of Eric T. Johnson can refer you to an attorney that can provide representation in this area of law. Bring this issue to the attention of the attorney right away during your interview, because there are time limits to pursue the claim.


What if I can’t return to work at all?

If a medical doctor finds that your injury has incapacitated you entirely, or if the doctor has indicated that you are under significant and permanent work restrictions that prevent you from all meaningful employment, then you may also qualify for social security disability and Medicare benefits through the Social Security Administration (SSA) office. The Law Offices of Eric T. Johnson provides representation for social security disability benefits (see Frequently Asked Questions regarding Social Security Disability). Remember that qualifying for Social Security Disability does not necessarily require injury at work, it only requires evidence of a disabling medical condition that prevents all employment in the open labor market. You may file both a workers compensation claim and a social security disability claim at the same time, if part or all of the reason for your total disability is industrially related. There are certain conditions and limitations that apply when you are eligible to receive social security disability benefits and workers compensation benefits at the same time. Your attorney will need to explain this to you.

If a medical doctor indicates in their reporting that your industrial medical condition has resulted in a complete incapacity to return to any gainful employment in the open labor market, this would be considered a Total Permanent Disability (TPD) claim as opposed to a Partial Permanent Disability claim (PPD) under Workers Comp. The Law Offices of Eric T. Johnson is experienced in developing a record and litigating total disability claims. Usually this requires extensive development of the medical record, and an expert vocational evaluation.

 

Getting Medical Treatment

How do I find a doctor who will treat me and what is a Medical Provider Network (MPN), and do I have to treat with a doctor inside the MPN?

Recent changes in the workers compensation labor code have dramatically affected your choice of doctors that can provide medical treatment under the workers compensation system. In most circumstances, you will be required to treat within the employer’s or insurance carrier’s Medical Provider Network (MPN). This is an employer/ carrier selected group of physicians or health care facilities that are pre-authorized to treat for industrial injuries. Law Offices of Eric T. Johnson can assist by identifying a primary treating physician, within an updated MPN and confirm that selected doctor(s) are willing to treat for a given set of medical issues. This can be a time consuming and difficult task.

Generally, an employer or carrier MPN is not the same provider list as your private health carrier. If you are represented, you should discuss selection of an MPN doctor with your attorney, who will be most familiar with the physicians in the MPN. Under some rather limited circumstances, you will not need to treat within the MPN. But 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, and who to speak with to help secure a medical appointment. If the carrier fails to provide you with information to assist you in selecting a doctor or fails to authorize treatment, you should obtain legal counsel.


Can I use my private health insurance coverage to obtain medical treatment?

Sometimes you can use your own health insurance or private care physician to treat a work injury, but there are many caveats. If you are recently injured, and the insurance carrier accepts the claim, then generally you must select treatment from the medical provider network (MPN) if one exists. This assumes 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 provider will likely 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 system are familiar with the stringent reporting requirements. Your private doctor will not 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 system. 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, of if the workers compensation case has been denied on grounds that the medical treatment is not related to a work injury.

In a situation where the workers compensation case has been accepted, and the employee properly notified of the MPN, the employee can still potentially treat with their private health insurance, but the following caveats apply:

  1. The private health provider may deny treatment access and tell the employee that they are obligated to treat under the workers comp system because the injury is work related. In this case, the MPN provider will be the only recourse for the injured employee.

  2. The private health provider may still allow treatment access notwithstanding the industrial nature of the injury, but they are not going to be under any obligation to report to the workers compensation insurance carrier as would an MPN provider. They can still charge co-pays and deductibles for all treatment related expenses that shall not be compensable to the injured employee.

  3. The carrier will not be obligated to pay for mileage, co-pays or TTD benefits flowing from any unauthorized treatment. Any treatment outside the employers or carriers MPN not authorized by an administrative law judge, will be considered unauthorized treatment, and therefore, not admissible to prove Temporary Disability or Permanent Disability.

  4. The advantage of treatment with the employee’s private health provider is that UR/IMR process is completed circumvented. This means that treatment authorization is more likely to occur.

If an injured worker is treating outside an MPN, they should consult with an attorney to discuss potential advantages and disadvantages of doing so.


What is Utilization Review (UR) under workers compensation?

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 treatment request and determine whether the recommended treatment follows standard guidelines adopted by the State of California. This process is called Utilization Review (UR). The idea is that all treatment recommendations should conform to scientifically accepted, evidence-based treatment protocols pursuant to the labor code (which currently follows the MTUS guidelines). In theory, the UR procedure was set up to prevent treating doctors from requesting treatment procedures that have been untested, unproven or are 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.


Remedies to Utilization Review (UR) denial by carriers and what is Independent Medical Review (IMR)?

Utilization Review (UR) is a medical review or treatment authorization procedure enacted into law in 2003 and has led to quite a few problems for injured workers. For example, the carrier may inadvertently or deliberately fail to provide the UR doctor the complete medical file that provides sufficient rationale for the treatment request, thereby causing delay or denial of authorization for treatment. Sometimes the utilization review facility requests additional information from the requesting treating doctor, which may or may not occur. Sometimes utilization review will occur on treatment requests as minor as a 30 day refill of anti-inflammatory medications. Or it can occur for major surgical interventions. In short, the requesting doctor has to be sure that the treatment requests comply with the state mandated treatment guideline protocols.

However, there may be judicial remedy if the UR review doctor fails to provide a determination within the time frame mandated by law (which under no circumstances can be more than 14 days from the time that treatment is requested, and in some cases may be within 5 days of the request). When the UR denial is untimely, then the attorney may file an expedited hearing on a medical treatment issue with the Workers Compensation Appeals Board (WCAB). The attorney still has to prove the treatment is medically reasonable before an administrative judge. Otherwise, the remedy for appealing an adverse UR decision to physician request for authorization is to proceed to what is now called Independent Medical Review (IMR). This process involves filing and submitting an application with the medical director. The Law Office of Eric T. Johnson routinely files for IMR review for every UR denial on every active case in the office. Unfortunately, the process was set up to be completely non-transparent, and non-reviewable by an administrative judge. Moreover, to ensure the non-transparency within the review system, the reviewing doctors are completely anonymous and therefore cannot be questioned or cross examined. Accordingly, the IMR system as it currently is set up by law, appears to be a process that mostly benefits insurance carriers and employers because the vast majority of IMR reviews simply rubberstamp the UR denial, and leave no further remedy for the injured worker.


Is there a limit to the amount and type of treatment I can get?

Yes, there is a limit to the amount and type of treatment you will be authorized to receive. In terms of chiropractic care, occupational therapy, acupuncture 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.


What if the carrier refuses treatment that my doctor is requesting?

You should obtain the prescription or doctor request for any given treatment, and the Utilization Review (UR) denial. The doctor may appeal the UR denial. Sometimes, the UR will reconsider if your treating doctor and UR doctor engage in what is called a peer to peer review. Otherwise, the UR denial will have to be reviewed under the IMR system (see remedies to UR denial and IMR process above). Only if the UR is untimely, will the attorney be able to file for a judicial hearing.


Do I have to pay for medical treatment?

For an accepted claim, the answer is 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.


What does it mean if my doctor classifies me as “Permanent and Stationary?”

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.) One important consequence of a treating physician determination that a condition has achieved a permanent and stationary status, is that legally the carrier may end temporary disability benefits.


 

Other Benefits And Limitations Under Workers Compensation

What if the carrier doesn’t provide TTD benefits?

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 (SDI) through the Employment Development Department (EDD).


Am I entitled to retraining?

You are entitled to a Supplemental Job Displacement Benefit (SJDB). This is a non transferable training voucher that you may redeem at a certified postsecondary vocational school. The value of the benefit, for dates of injury after 2013, is $6000.00. Generally, it can be utilized only if you are declared by a medical doctor, permanently unable to return to your usual and customary employment. You will be entitled to the benefit if the following three conditions are met:

1.You have sustained some level of permanent impairment with work restrictions AND 2. Your employer is unable to offer permanent modified or alternate work within your work restrictions AND 3. The medical evaluator has indicated that you cannot return to your usual and customary position.

In addition to the $6000.00 voucher, you may be entitled to an additional $5000.00 voucher offered by the State of California. You have to qualify for the $6000.00 voucher in order to qualify and redeem the additional $5000.00 voucher.


What is meant by Permanent Partial Disability (PPD) and Permanent Whole Person Impairment, and Permanent Disability Rating?

Permanent Partial Disability (PPD) is the ultimate compensable award and is derived from the medical evidence usually following a medical evaluation. Ultimately, it is the medical evaluator’s assessment of your physical condition and limitation to the extent that your injury permanently precludes you from engaging in certain physical, social or work activities. It is an expression of a percentage of impairment caused by injury, disease or disfigurement. In the medical legal report (either a Panel Qualified Medical Evaluation and report, or the primary treating physicians final report), the evaluator will provide what is called a “Whole Person Impairment” (WPI) valuation based on a face to face examination. The doctor may provide a diagnostic related assessment, or a range of motion assessment, or alternative assessment based on criteria found in the 5th Addition of the American Medical Association Guides to Permanent Impairment. The whole person impairment rating is then adjusted by-factors such as age and occupation. Generally, older individuals have a higher adjustment to the rating computed. Likewise, workers injured in occupations that are more physically demanding, will have higher adjustments to the rating formula. All WPI valuations are adjusted upward to account for loss of some future earning capacity. The rating may be adjusted lower due to apportionment (see below, what is meant by apportionment). The rating system is complicated, and this is of course an area of expertise by a workers compensation attorney such as Law Offices Eric T. Johnson. I can show you how a rating and compensable award is derived with any given medical legal evaluation and report.

Once a final adjusted rating is determined, then the applicable tables are identified to determine the amount of the compensable award. The applicable tables for compensable awards are pre-determined by the date of injury and by operation of law.


Do I get “Pain and Suffering” Damages under Workers Compensation?

Workers compensation is a very different legal system than what you will find under civil or third party personal injury cases filed with California Superior Court system. In civil cases, the final award is determined by more subjective factors such as the level of “pain and suffering” caused by the negligent party to the aggrieved party. There might be a trial by jury assessing the extent of pain and suffering that an injury has caused to an individual and/or his/ her family, and loss of income potential.

Workers compensation is nothing like personal injury law, because the computation of damages is arrived by a completely different formulation and set of rules, criteria and case law. Legal or factual disputes to the computation of damages are resolved by an administrative law judge at the Workers Compensation Appeals Board. It is common for personal injury law to be confused with workers compensation law, because both involve personal bodily injury, and both can legitimately result in “pain and suffering.” But under workers compensation, the formula for determining damages is much more constrained and formulaic, as described above. Whether the resulting formulaic determination of damages under workers compensation is fair and equitable, is a topic of much political debate, discussion and legislation.


What is apportionment?

You may hear the term “apportionment to causation” as a term of art being used by doctors, judges and attorneys. This is the subject of a very complicated area of law in workers compensation matters. Recently, there have been some dramatic and quite unfavorable legislative changes for injured workers concerning factors apportioned to causation. In simple terms, apportionment refers to disability or impairment or even non-symptomatic risk factors 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 overall disability and injury, and this is expressed in the form of a percentage. Under the old law before the recent reforms, 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 legally valid.

In the case that you have incurred a prior work injury on the same body part that you currently claim 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%. This is true even if you completely recovered from your first injury.

The Medical Legal Evaluation and Discovery Process

How do I get an Agreed Medical Evaluator?

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 may 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. If no Agreed Medical Evaluator can be assigned to the case, then parties will go through the panel qualified medical legal evaluation process.


When do I proceed to a Medical Evaluation?

You can proceed to a medical evaluation any time there is a dispute over any of the following issues:

  1. The doctor has released you to full duties without restrictions and you disagree with the assessment.

  2. The doctor has issued a permanent and stationary report that you don’t agree with.

  3. 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.

  4. The doctor and/or adjuster have indicated that your injury is not work related. This is not a complete list of all potential disputed issues. Rather, it is a sample of the most common issues that can be cited to initiate the medical legal process. Either party can initiate a panel qualified medical evaluation, simply by disputing a treatment report.

    This is not a complete list of all potential disputed issues. Rather, it is a sample of the most common issues that can be cited to initiate medical legal process. Either party can initiate a panel qualified medical evaluation simply by disputing a treatment report.


What is the advantage of an Agreed Medical Evaluator (AME) versus a Panel Qualified Medical Evaluator (QME).

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 (at least as equitable as possible within the workers compensation system). Remember, you can only proceed to an Agreed Medical Evaluator if you are represented by an attorney. A panel QME on the other hand, will be a randomized selection of doctors, potentially resulting in the utilization of an inexperienced evaluator. Also, many Panel QME doctors are well known to favor insurance carriers in their evaluations by downplaying the impairment or disfigurement, emphasizing the non-industrial causation of injury or maximizing apportionment, or otherwise choosing a more conservative approach during the evaluation. Ultimately, an evaluator who favors the insurance (and there are multiple reasons to speculate why evaluators curry favor to the insurance industry), not surprisingly can result in less than desirable outcomes for injured workers.


If I am unhappy with my medical evaluation, can I go to a different doctor for a second opinion?

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. Once you obtain a PQME 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 and an objection is made. However, in most cases, once you have a report from a PQME 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, but it can happen.


Will my deposition testimony be requested and how will it affect my case? What will be asked, and what should I say during the deposition?

If you have filed a workers compensation claim against your employer, and assuming the claim is something of a serious injury case, chances are the employer or their insurance company will at some point take your recorded statement, or your deposition. A deposition is a formal legal proceeding, usually in an informal environment, where there is a court reporter tasked with “recording” your statements “for the record.” A deposition is often said to read like a screenplay. A deposition is a formal legal proceeding, (usually in an informal setting). It is a legal proceeding because you, the injured worker, will have taken an oath to “tell the truth, the whole truth, nothing but the truth,”….. under penalty of perjury. It goes without saying, if you go through a formal legal proceeding, it is a good idea to have legal counsel to help you. If you do have legal counsel, it is important to set aside at least an hour in advance of the deposition, to review what kind of questions will likely be asked in your case, and what kind of responses you should give.

The deposition usually will have relatively benign effect on the case (if it is not used to impeach credibility), and can even be a useful tool to provide relevant information to a pending medical evaluator. Therefore, it is important to be cautious during the deposition, and to be prepared. A deposition will focus on seven main topic areas that your attorney should focus on during pre-depo client meeting and preparation. The topic areas are as follows:

  1. Socio-biographical and employment history;

  2. Pre-injury medical treatment history (i.e., medical injuries or pathologies that predate the industrial injury);

  3. Mechanism of industrial injury, reporting of injury and subjective complaints at time of injury;

  4. Work status issues (current and past); pre-injury job duties;

  5. Post injury treatment (names of doctors and facilities, type of treatment received, surgeries, efficacy of treatment, etc.);

  6. Current subjective complaints;

  7. Limitations on Activities of Daily Living (ADLs).


What information can the defendants legally “discover” about me?

The carrier and employer through their defense counsel may subpoena records or take interview of percipient witnesses. The focus is most likely to be on the following:

  1. Pre-injury medical records that could potentially address issues of “apportionment” or causation of injury;

  2. Employer personnel file addressing any disciplinary actions;

  3. Past legal files involving litigation involving injuries;

  4. Prior criminal record (especially in past criminal cases involving fraud) potentially to use to impeach credibility;

  5. Adverse witness statements;

  6. Social Security statement if you have applied for Social Security Disability;

  7. Video surveillance (in any public setting where you have no expectation of privacy);

  8. Facebook/Social Media information available to the general public;

Whether the defendant undertakes the time and expense of pursuing records and/or the defense tactics outlined above really depends on a multiple number of factors. This should be discussed with counsel, especially during the pre-deposition meeting.

If your workers compensation claim results in a claim of serious injury, or you have lost significant time from work, or a medical evaluator or your treating physician has set forth significant limitations and restriction on your activities, chances are the adjuster for the insurance company (or the employer) has hired counsel to help defend the claim to reduce their exposure. This is true even if you are unrepresented. There are many strategies to defend a claim. One of the most typical defense tactics is to hire a private investigator to secretly follow you (the injured worker) about in your daily activities, and video record those activities, and then send the recordings to evaluators, doctors and judges for comment. This can obviously potentially undermine statements made by injured workers to doctors regarding the disabling effects of the injury. However, video surveillance is a rather expensive means to defend a case because it requires paying a private investigator for his time and materials. A much less expensive option is for the adjuster to spend a few minutes on his/her time on the computer, “Google” your name or look you up on Facebook or some other social media. What they find will depend on what you hold out to the public. If you have pictures of yourself playing golf with friends, holding the biggest catch of fish ever on the end of a fishing line, or just opening a bottle wine at a friend’s wedding, let’s hope that you are not claiming a serious disabling hand condition. Because if you are, those pictures will be circulated around to evaluators and judges, and you may have to explain any inconsistencies in the record. The point is, be careful what you tell doctors in terms of your limitations, and be sure that it is consistent with your capabilities. You do not want to overstate or understate your injuries. But if you do claim serious disabling injuries, be sure that you don’t furnish the defendants with pictures meant for friends and family, that can be misconstrued in a workers compensation claim. Set your Facebook Settings to the highest level of privacy, or simply don’t post provocative pictures of any sort online.

Resolving My Case

How long does it take to resolve my case?

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(s), the number of evaluations you require from different medical specialties, the severity of your injury(ies), the number of body parts affected, whether surgery is necessary, whether your case is accepted or denied or requires an administrative hearing to resolve disputes. The time it takes to resolve your case will depend mostly on whether the evaluators have determined your case as permanent/stationary and ratable. This depends on the nature and extent of your injuries, treatment necessary to cure and relieve the effects of the injury. The longer you actively treat, the longer that it will be to resolve the case.


What settlement options do I have?

You can obtain a stipulated award with open medical, or in the alternative, close your case and receive a lump sum payment by compromise and release agreement.

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 higher the impairment rating in your case, the longer the payments will continue. The weekly rate of the benefits depend on your wages at the time of injury, and/or the date of your injury. The permanent/partial disability rate (PPD) is capped (you should discuss with your attorney whether you will receive the capped rate of PPD). Your future medical award is for life. Future medical treatment may be subject to Utilization Review (UR) and treatment guidelines imposed by law, as well as the IMR process (see above). 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 (often referred to as C&R) 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, or otherwise seek care through your private insurance if available. The negotiated value of the future medical care is generally calculated based on the cost that the carrier would pay for the medical care (which is subject to a fee schedule), 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. Settlement options may vary depending on individual circumstances. Therefore, consultation with an attorney will help you understand what is the best option in your case.


Will Settlement of my Workers Compensation Case Affect my Social Security Disability Benefits?

If you are entitled to Social Security Disability under Title II (SSDI), and you have a pending workers compensation claim, Social Security may “offset” i.e., reduce your benefit by a certain amount while you are receiving Total Temporary Disability (TTD), Permanent Partial Disability (PPD), or State Disability Insurance (SDI). The general rule is that Social Security Administration (SSA) will limit you to 80% of your highest earnings, taking into account the combined monthly value of your workers compensation and SSDI benefits. Your average earnings, as calculated by the Social Security Administration, are typically your highest earnings in any one of the last five years prior to the onset of disability (note – there are other possible methods that SSA may use to calculate highest earnings). To illustrate, if your highest earnings are calculated at $2000.00 per month, then SSA will determine that 80% of your earnings are $1600.00 per month. You cannot receive more than $1600.00 per month in SSDI benefits and workers compensation benefits combined in this scenario. Moreover, the SSDI offset is a taxable event, while workers compensation benefits are not taxable. Therefore, in some circumstances, it may be beneficial to wait until the TTD benefits have been exhausted or near exhaustion before applying for SSDI. This is because the TTD benefits are generally paid at a higher rate than the PD benefits, and therefore more likely subject to SSDI offset, resulting in payment of taxes on benefits otherwise not taxable. This approach (to delay application for SSDI while receiving TTD) has to be weighed against the potential disadvantage of postponing Medicare benefits (you cannot receive Medicare until 29 months after the onset of disability, and you can only receive Medicare if you are found disabled under Title II or you reach retirement at age 65). Also, it is never recommended to defer applying for SSDI benefits if the eligibility date for the benefit is approaching expiration. This date is typically referred as the Date Last Insured (DLI), and it is important to fully develop the medical record as much as possible during the period of eligibility for the benefit, if you still have the opportunity to do so. You should discuss whether there is likely to be an offset against your workers compensation benefits with your SSA representative and decide strategically the best timing of your application for SSDI benefits.

If your workers compensation case is approaching settlement by Compromise and Release (C&R), it is advisable to have your workers compensation attorney put language directly into the body of the settlement document indicating the prorated amount of your Permanent Disability award over your life expectancy. This is called “Hartman Addendum”. The prorated amount of PPD is derived after subtracting from the award, allowable exclusions such as attorney fees and provisions for future medical care. Social Security claim examiners are instructed (POMS DI 52150.065) to calculate the PPD award prorated over the claimant’s life expectancy, but they will only do so if the workers compensation attorney specified the prorated PPD award in the settlement. In other-words, the attorney needs to “show the math” in the body of the settlement agreement. By doing this, the attorney can readily prevent or substantially reduce the amount of offset incurred by SSA. It will be incumbent on the claimant to provide the Compromise and Release (C&R) agreement to SSA to calculate any potential offset. If the C&R fails to demonstrate the methodology of prorating the PPD, they will calculate the potential offset by reverting to the standard PPD rate in California, which is $230.00 per week for disabilities 69% or under, or $270.00 per week for disabilities between 70-99%. It is a complicated issue, and best left in the hands of a qualified attorney.


What are the Benefits and Pitfalls of Applying for Social Security Disability Before the Conclusion of the Workers Compensation Claim.

You are an injured worker. You filed a workers compensation claim, and you are receiving Temporary Disability (TD), or maybe even Permanent Partial Disability (PPD). In either case, you are not able to return to work. In fact, you are not sure what kind of work you can do now. Maybe you are between the age of 50-60, and it just doesn’t seem feasible to go back to school, or retrain into something else. You don’t have many skills that you can apply to other kinds of jobs. Your job at the time of injury is just too physically demanding to return. What can you do?

If this scenario seems to apply in your situation, you may be considering filing for Social Security Disability, Title Two benefits. If you haven’t considered doing so, you should- but with a caveat.

Applying for and receiving Social Security Disability can be either a quick and easy process, or it could take a quite a bit of time and effort. Whether or not you get on disability from your initial application will depend on two simple but not mutually exclusive factors. The first, is simple luck of the draw. Yes, you may get lucky when you walk into a social security office and fill out an application, and find yourself eligible right from the beginning. Most people are not lucky, and have to go through the appeals process. The second factor of course, really boils down to the nature and extent of your disability, your age and your work history. The more disabled you are, the older you are, and the more physically demanding work you performed in the last 15 years of your work life, then the less likely that you will have to go through a review process with the Social Security Administration office.

In either case, once you get on Social Security, this will have an impact on how your workers compensation claim gets resolved, and the amount of time it takes to resolve the claim, or whether you will retain the option to compromise and release the case. The benefit to you, for obtaining social security even before the conclusion of your workers compensation claim, is that you now will have a guaranteed income stream even after your workers compensation benefits run dry. Also, you will become Medicare eligible, 29 months after the date in which you are found to be too disabled to work. This is known as your onset date of disability. For many workers compensation claimants, this may be, and usually is (but is not necessarily), the date of injury or last day of employment, if the workers compensation case involves a specific injury, and where the injured employee does not return to work after the injury. Medicare of course, is a medical insurance program funded by the federal government.

Once an injured worker becomes Medicare eligible, or even is projected to become Medicare eligible within 30 months, this triggers a mandate to insurance companies, by federal statute, to undertake what is called a Medicare Set Aside (MSA). This is an analysis of your projected future medical care costs over a claimant’s life expectancy, for the industrial injury. These costs have to be funded by the insurance carrier and then set aside in a special, self administered trust account by the claimant, following any compromise and release agreement reached by the litigating parties. To do this, the insurance carrier has to hire a company that reviews the entire medical file and then calculates the projected future medical costs, including doctor visits, surgeries, postoperative therapy, prescriptions, etc. This can become a very time consuming process. Once MSA is calculated it has to be submitted to the Centers for Medicare Service (CMS) for review and approval. This is usually the case when the applicant is already eligible for Medicare at the time that the MSA is developed. The time that it takes CMS to review and/or approve the MSA can take over 6 months. If one is seeking a quick compromise and release agreement in order to obtain a lump sum award, applying for SSA benefits can result in a significant delay in obtaining that compromise and release agreement.

If the Medicare Set Aside is too high, the insurance carrier may simply decline to settle the future medical care benefit, and one may be trapped within the workers compensation medical delivery system. Neither the carrier nor an injured worker can be forced to settle out the future medical care and there is no judicial recourse to force either party to surrender this option.


What is the Medicare Set Aside (MSA), how does it work, and what triggers its use?

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.


Is Workers Compensation a fair system?

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 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 lawsuit. 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 presumably requires a reigning in of workers compensation as a cost of doing business. The bottom line is that workers compensation, as a benefit delivery system 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 Attorney Association (CAAA) website to learn more information about what you can do to change the system. Go to www.caaa.org.

 

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