FAQS ABOUT CALIFORNIA WORKERS' COMP
Note: many of the FAQ topics below are analyzed in depth in articles posed under the Articles section of this blog. The following FAQs are general and offered for informational purposes. Consult an attorney if you have questions about the rights you may have in your particular case.
Q. What Injuries does California law cover?
A. It covers three main types if injuries. Specific injuries are injuries where there is a defined accident or injury (for example, something falls on you, you are hit by something at work, you hurt yourself lifting, etc). Cumulative trauma injuries are injuries that occur due to wear and tear in your job over the years. These may include degenerative knees, back and shoulder conditions, carpal tunnel syndrome, stress related heart problems, hearing loss, etc. Occupational diseases also are covered. This includes diseases such as asthma due to fumes and dust, asbestos related disease, hepatitis due to infectious blood exposure, etc.
Q. What if my injury causes complications?
A. Workers’ comp will be liable for complications that develop due to the original injury. This could include depression, ulcers, sleep problems and medication related disorders that develop because of the injury. It also could include problems that develop as a consequence of your injury. For example, if your injured knee causes you to put more weight on the other knee, the 2nd knee may also be a compensable consequence industrial injury. This is often the case where favoring one shoulder or one arm results in problems in the other upper extremity.
Q. Can I sue my employer for my injury? Can I get a jury trial?
A. Generally, no……with a few exceptions. Workers’ comp in California is a no fault law, so even if your employer or a co employee was negligent or at fault, you are limited to regular workers’ compensation and cannot receive a jury trial by suing your employer. The exceptions to that rule include where there is discrimination (including race, sex, age, disability, national origin discrimination, etc.), sexual harassment and fraudulent concealment of asbestos, intentional injury (such as assault and battery, etc), and other narrow categories.
Q. What if my injury was caused by or contributed to by the fault of someone other than my employer?
A. In that instance, you may be able to pursue workers’ comp AND a “third party case” against the person or entity that caused or contributed to the injury. This may include the following (if they are different than your employer):
-the owner, manager, or company maintaining dangerous/defective premises where an injury occurred
-the manufacturer, designer, seller or distributor of dangerous or defective products that played a role in your injury
-the owner of and driver of a vehicle involved in your injury
-the state or local governmental entity that contributed to your injury (for example, if misplacement of a road sign was a factor, etc.)
-a doctor who committed malpractice in treating your injury
There may be other situations which would give rise to a “third party” case as well. If there is a “third party” case you can sue for general damages, pain and suffering and wage loss, and you would have a right to a jury trial (workers’ comp does not provide this option). See the www.boxerlaw.com web-site section on personal injury for more information on your rights in these situations.
Q. What are the basic benefits under California workers comp?
A. There are 4 basic benefits:
1. Medical treatment for your injury
2. Temporary disability (up to 2 years for post 4/04 injuries) if you are certified as unable to work at your job (unless you are given modified duty). Temporary disability pays 2/3 of your average weekly wage (note: overtime should be included in calculations) up to a statutory maximum.
3. A retraining voucher worth between $0 and $10,000 depending on the percentage of disability you are ultimately awarded. The old $16,000 retraining benefit was ended by Arnold Schwarzenegger for injuries occurring after 1/1/04.
4. A settlement that is based on translation of a percentage of disability (a “rating”) into a set amount of dollars according to a state chart. How your rating is determined may be affected by whether your injury is pre 1/1/05 or post 1/1/05. This blog (www.workerscompzone.com) has many articles dealing with how ratings are determined.
Q. Can I choose my own doctor?
A. It depends. Yes, if before you were hurt you signed a valid predesignation of doctor form (caution: the predesignation requirements changed in 2004, so old forms may not meet the standard required). If you did not predesignate a doctor, you must see the employer’s doctor for the first 30 days and can then switch to a doctor of your choice. But if your employer has set up an “MPN” (Managed Provider Network) you will have to pick a doctor off of the network (unless the network fails to observe certain technical requirements.)
Q. What is the standard for medical treatment?
A. Medical treatment must be reasonable, necessary and related to your injury. It must also now meet state medical treatment guidelines, which have adopted a set of treatment standards known as ACOEM. This blog (www.workerscompzone.com) includes many articles dealing with ACOEM.
Q. What is utilization review?
A. The law permits insurers to refer medical treatment requests for outside review by a non-examining utilization review doctor. There are strict time frames and standards for utilization reviews. Utilization review denials can be challenged in court, but to succeed the challenge needs to have proper paperwork. See the Articles [link] section on this blog for further analysis.
Q. Are there specific treatment limitations?
A. Yes. For example, there is a 24 visit chiropractic treatment limit and a 24 session physical therapy limit (limits can be waived by the insurer, if they choose).
Q. What is a QME?
A. A QME is a medical doctor (“Qualified Medical Examiner”) who evaluates workers’ comp cases. You may receive a letter indicating you will need to see a QME because the insurer has objected to your treating doctor’s opinion regarding temporary disability, medical treatment, permanent and stationary status, extension of disability, etc. There are important time frames involved in picking a QME. Since the QME will decide critical issues on your case, it is not a decision to be taken lightly. You do not want to let the insurer pick the QME for you. If you have not consulted a lawyer, this is the time to do so. A lawyer will advise you on picking a QME. This blog (www.workerscompzone.com) has many articles that address QME evaluations.
Q. What other benefits may I be entitled to?
A. If you are unable to return to all types of work (not just your old job) for a
year or more, you may be entitled to receive Social Security Disability benefits. To learn more about Social Security disability click here to access the Social Security Disability page on www.boxerlaw.com. Also, some workers may be entitled to receive short term disability, long term disability
or retirement disability (for example PERS or county disability retirement). If your mortgage includes mortgage insurance or your auto loan includes disability provisions, you may also be able to collect.
Q. Will I receive my full wage loss?
A. California workers’ comp law does not provide for full wage loss. If you have a “third party” lawsuit you may sue for full wage loss.
Q. What are ratings based on?
A. Under the pre-Arnold Schwarzenegger law, the workers’ compensation system translated work restrictions (or “preclusions”) into a rating. The rating may also have been based on “objectives” (such as range of motion of a shoulder, for example or calf and thigh atrophy) or “subjectives” (where the doctor graded the severity of your pain). For post 1/1/05 injuries (and some pre 1/1/05 cases as well) the American Medical Association (AMA) guidelines are the standard. The AMA guidelines are a system that claims to measure impairment rather than disability. California has a system to translate the impairment percentage into a disability percentage. This new system of determining impairment and then disability is very inadequate for many workers. Studies of the system are ongoing and efforts to change the system will be a frequent topic on this blog.In some cases the courts may allow vocational or labor market testimony to "rebut the schedule".
Q. Can I get an award for lifetime medical?
A. Yes, if the facts justify it and if the doctors document the need for it.
Q. When is a good time to see a lawyer about my case?
A. Several articles in the Articles section analyze typical stages of a case and how having a lawyer at these stages may be helpful. Individuals who should definitely see a lawyer include the following:
-If you believe you may have been injured due to the fault of someone other than your employer (a “third party”) you should see a lawyer immediately. The personal injury section of www.boxerlaw.com has information on third party rights.
-You should also talk to a lawyer BEFORE you or the insurer selects a QME evaluator from a state-sponsored list of three QME doctors (known as a “QME panel”). The QME doctor who is picked will have great impact on your rights and you should get advice BEFORE the QME is selected.
-If the insurer wants to take your deposition (testimony under oath), you will need a lawyer.
-If the insurer is raising issues about apportionment (see below), you should consult a lawyer.
-If you are receiving Social Security Disability, a lawyer will need to help draft the settlement documents, since the settlement language can affect your eligibility for ongoing benefits
-If you are a high wage-earning worker rated under the AMA impairment system, you should see a lawyer to discuss the possibility of using vocational expert testimony to rebut the rating. This could change the outcome of your case
Q. How are workers’ comp lawyers paid?
A. On a contingency fee. You do not have to pay a lawyer a retainer. The fees are subject to approval by the workers’ comp judge. If you receive nothing, there is no fee. You do not have to advance money for costs in a workers’ comp case.
Q. How long will a case take?
A. This depends on your medical treatment and on how complicated your case is.
Q. What happens if my employer did not carry workers comp insurance?
A. This is illegal. You will be entitled to receive benefits from the California Uninsured Employers Fund (UEF). You may also have rights to sue your employer in civil court in this situation.
Q. What are carve-outs?
A. The law now allows some unions and employers to set up an alternate dispute resolution system as part of union contract negotiations. This does not affect most workers, but if you are covered by a carve-out you may still want to seek legal advice about your rights. Most carve-outs allow some forms of legal representation.
Q. What is the Subsequent Injuries Fund?
A. This is a state sponsored fund that may be liable to pay some extra monies to severely disabled workers. Unless your overall rating is determined to be in excess of 70%, it has no bearing on you (and even then, there are other criteria that must be met as well as offsets for other benefits).
Q. What is Serious and Willful misconduct?
A. This is a remedy for a very limited category of California work injury cases. Workers’ comp is a no-fault law, and you can not sue for negligence. If the employer is just negligent, you do dot have a serious and willful claim. But if the employer is more than negligent, you may have a serious and willful claim. These claims are usually found in situations where the employer violates serious OSHA safety orders, where the employer tells the employee to complete a task excessively and clearly dangerous and is outside the usual scope of work, where the employer’s request is close to intending the worker get hurt, etc. Each case of this nature must be analyzed on its own facts. If an employer if found guilty of serious and willful misconduct, the employee will receive a 50% boost in benefits s/he would have otherwise received.
Q. Can my employer terminate me after a work injury?
A. Under Labor Code 132A, it is illegal for your employer to discriminate against you because you have been hurt on the job or because you have pursued workers’ comp benefits. If there is a 132a violation you may be
entitled to receive back pay, reinstatement and a $10,000 penalty. But note that California law does not specify how long an employer must keep an employee on its books if the employee is not capable of returning to work. If you are covered by a union contract, the union contract language may affect this. If your employer terminates you or fails to consider reasonable accommodations you request, you may have rights to pursue a disability under FEHA (the California Fair Employment and Housing Act), which is
administered by the California Department of Fair Employment and Housing (DFEH). You can learn more about your reasonable accommodation rights by checking the employment law pages on www.boxerlaw.com
Q. What is apportionment?
A. There are two types of apportionment. The first is apportionment to other causes. The law now says that when addressing permanent disability, the doctors must assign approximate percentages of disability to all causes. In other words, your injury or condition may be industrial, but when evaluating permanent disability the doctors are to address all of the various causes of the disability. Before the Arnold Schwarzenegger workers’ comp reforms, it was hard for an insurer to deduct for things such as “pre-existing non-disabling pathology”, degenerative conditions, the aging process, etc. Under the change in the law and court cases interpreting this (including the Escobedo and Yeager cases), these deductions may be legal depending on the circumstances.
The second type of apportionment is apportionment to a prior award. In the past, an insurer did not get to take an automatic deduction from a disability percentage award just because the worker had received a percentage award in another case. Now the law specifies that at the time of a later injury an earlier percentage of disability awarded is presumed to still exist. The legal drafting of this provision is a bit unclear and the California Supreme Court will be considering how this provision is to be applied.
Apportionment is a major source of litigation in workers’ comp cases. Even if you are assigned a fair overall rating, apportionment can reduce the rating substantially. The California courts will be fine-tuning apportionment rules and principles for the next few years.
Q. Can the insurer do surveillance on me?
A. Yes. Clearly you do not give up all your privacy rights just because you have a claim. On the other hand, the insurer can hire investigators to do spot checks to see what you are up to. This can include taking films of you while in a public place or if you are visible from a public place. This could include you being followed into a store or a mall, for example, to see what you are capable of lifting and carrying, for example.
Q. Can injured workers be prosecuted for fraud?
A. Yes. Occasionally injured workers are charged with fraud. You should be extra careful to avoid claiming that you cannot do things you do or have done while you are under treatment for your injury. If you fail to disclose that you are working while collecting full temporary disability payments, you may be putting yourself in a fraud situation. There are other ways that
allegations of fraud could arise. This could include intentionally exaggerating your symptoms. Make it a rule to tell the truth to your treating doctors, the evaluating doctors, the lawyers and the court.
Q. Where can I get more detailed information?
A. Workerscompzone offers information in a number of different formats. In the right navigation, of this blog, you will notice buttons for podcasts, links/resources and articles. Check out all of these to get more detailed information. As always, however, if you have a pending claim we urge you to seek personalized legal advice from at attorney. This blog is not designed to give you specific legal advice about how your particular claim should be handled. To see our disclaimer, click here.
Q. If I want to get a lawyer but no lawyer will take my case, how can I get help?
A. Most of the California Workers’ Compensation Appeals Board district offices have an Information and Assistance Officer (known as I&A officer).
These individuals are not lawyers, but they are there to give some basic guidance to individuals going through the system. You can go see the I&A officer. Unfortunately, the 2003 and 2004 workers’ comp reforms have caused some attorneys to leave the practice. In some parts of the state it is hard to find an experienced attorney. We hope that some of the materials on this blog will be of some help to you, but there is no substitute for personalized advice from an attorney who can evaluate all of the factors in your particular case.
Q. When it comes time to settle my case, how is that done?
A. There are 2 types of settlements:
-stipulations (“stipulated award”) which may be with open future medical awarded or without further medical. A stipulated award can be reopened within five years of your injury if your condition worsens or your disability status or medical needs change.
-compromise and release, which may be with future medical or without open medical (caution: it is relatively rare for an insurer to offer a compromise and release with future medical open, though it does happen sometimes). A compromise and release cannot be reopened or set aside.
The pros and cons of these types of settlements are analyzed in Articles
section on this blog. If you are receiving Social Security disability or are eligible for Medicare, special care needs to be taken with any settlement. The settlement terms may affect your eligibility for ongoing Social Security Disability checks and/or Medicare benefits.
WE HOPE THE FORGOING FAQS ARE HELPFUL. For more information, visit us at www.boxerlaw.com and continue to browse through this blog.
Note: many of the FAQ topics below are analyzed in depth in articles posed under the Articles section of this blog. The following FAQs are general and offered for informational purposes. Consult an attorney if you have questions about the rights you may have in your particular case.
Q. What Injuries does California law cover?
A. It covers three main types if injuries. Specific injuries are injuries where there is a defined accident or injury (for example, something falls on you, you are hit by something at work, you hurt yourself lifting, etc). Cumulative trauma injuries are injuries that occur due to wear and tear in your job over the years. These may include degenerative knees, back and shoulder conditions, carpal tunnel syndrome, stress related heart problems, hearing loss, etc. Occupational diseases also are covered. This includes diseases such as asthma due to fumes and dust, asbestos related disease, hepatitis due to infectious blood exposure, etc.
Q. What if my injury causes complications?
A. Workers’ comp will be liable for complications that develop due to the original injury. This could include depression, ulcers, sleep problems and medication related disorders that develop because of the injury. It also could include problems that develop as a consequence of your injury. For example, if your injured knee causes you to put more weight on the other knee, the 2nd knee may also be a compensable consequence industrial injury. This is often the case where favoring one shoulder or one arm results in problems in the other upper extremity.
Q. Can I sue my employer for my injury? Can I get a jury trial?
A. Generally, no……with a few exceptions. Workers’ comp in California is a no fault law, so even if your employer or a co employee was negligent or at fault, you are limited to regular workers’ compensation and cannot receive a jury trial by suing your employer. The exceptions to that rule include where there is discrimination (including race, sex, age, disability, national origin discrimination, etc.), sexual harassment and fraudulent concealment of asbestos, intentional injury (such as assault and battery, etc), and other narrow categories.
Q. What if my injury was caused by or contributed to by the fault of someone other than my employer?
A. In that instance, you may be able to pursue workers’ comp AND a “third party case” against the person or entity that caused or contributed to the injury. This may include the following (if they are different than your employer):
-the owner, manager, or company maintaining dangerous/defective premises where an injury occurred
-the manufacturer, designer, seller or distributor of dangerous or defective products that played a role in your injury
-the owner of and driver of a vehicle involved in your injury
-the state or local governmental entity that contributed to your injury (for example, if misplacement of a road sign was a factor, etc.)
-a doctor who committed malpractice in treating your injury
There may be other situations which would give rise to a “third party” case as well. If there is a “third party” case you can sue for general damages, pain and suffering and wage loss, and you would have a right to a jury trial (workers’ comp does not provide this option). See the www.boxerlaw.com web-site section on personal injury for more information on your rights in these situations.
Q. What are the basic benefits under California workers comp?
A. There are 4 basic benefits:
1. Medical treatment for your injury
2. Temporary disability (up to 2 years for post 4/04 injuries) if you are certified as unable to work at your job (unless you are given modified duty). Temporary disability pays 2/3 of your average weekly wage (note: overtime should be included in calculations) up to a statutory maximum.
3. A retraining voucher worth between $0 and $10,000 depending on the percentage of disability you are ultimately awarded. The old $16,000 retraining benefit was ended by Arnold Schwarzenegger for injuries occurring after 1/1/04.
4. A settlement that is based on translation of a percentage of disability (a “rating”) into a set amount of dollars according to a state chart. How your rating is determined may be affected by whether your injury is pre 1/1/05 or post 1/1/05. This blog (www.workerscompzone.com) has many articles dealing with how ratings are determined.
Q. Can I choose my own doctor?
A. It depends. Yes, if before you were hurt you signed a valid predesignation of doctor form (caution: the predesignation requirements changed in 2004, so old forms may not meet the standard required). If you did not predesignate a doctor, you must see the employer’s doctor for the first 30 days and can then switch to a doctor of your choice. But if your employer has set up an “MPN” (Managed Provider Network) you will have to pick a doctor off of the network (unless the network fails to observe certain technical requirements.)
Q. What is the standard for medical treatment?
A. Medical treatment must be reasonable, necessary and related to your injury. It must also now meet state medical treatment guidelines, which have adopted a set of treatment standards known as ACOEM. This blog (www.workerscompzone.com) includes many articles dealing with ACOEM.
Q. What is utilization review?
A. The law permits insurers to refer medical treatment requests for outside review by a non-examining utilization review doctor. There are strict time frames and standards for utilization reviews. Utilization review denials can be challenged in court, but to succeed the challenge needs to have proper paperwork. See the Articles [link] section on this blog for further analysis.
Q. Are there specific treatment limitations?
A. Yes. For example, there is a 24 visit chiropractic treatment limit and a 24 session physical therapy limit (limits can be waived by the insurer, if they choose).
Q. What is a QME?
A. A QME is a medical doctor (“Qualified Medical Examiner”) who evaluates workers’ comp cases. You may receive a letter indicating you will need to see a QME because the insurer has objected to your treating doctor’s opinion regarding temporary disability, medical treatment, permanent and stationary status, extension of disability, etc. There are important time frames involved in picking a QME. Since the QME will decide critical issues on your case, it is not a decision to be taken lightly. You do not want to let the insurer pick the QME for you. If you have not consulted a lawyer, this is the time to do so. A lawyer will advise you on picking a QME. This blog (www.workerscompzone.com) has many articles that address QME evaluations.
Q. What other benefits may I be entitled to?
A. If you are unable to return to all types of work (not just your old job) for a
year or more, you may be entitled to receive Social Security Disability benefits. To learn more about Social Security disability click here to access the Social Security Disability page on www.boxerlaw.com. Also, some workers may be entitled to receive short term disability, long term disability
or retirement disability (for example PERS or county disability retirement). If your mortgage includes mortgage insurance or your auto loan includes disability provisions, you may also be able to collect.
Q. Will I receive my full wage loss?
A. California workers’ comp law does not provide for full wage loss. If you have a “third party” lawsuit you may sue for full wage loss.
Q. What are ratings based on?
A. Under the pre-Arnold Schwarzenegger law, the workers’ compensation system translated work restrictions (or “preclusions”) into a rating. The rating may also have been based on “objectives” (such as range of motion of a shoulder, for example or calf and thigh atrophy) or “subjectives” (where the doctor graded the severity of your pain). For post 1/1/05 injuries (and some pre 1/1/05 cases as well) the American Medical Association (AMA) guidelines are the standard. The AMA guidelines are a system that claims to measure impairment rather than disability. California has a system to translate the impairment percentage into a disability percentage. This new system of determining impairment and then disability is very inadequate for many workers. Studies of the system are ongoing and efforts to change the system will be a frequent topic on this blog.In some cases the courts may allow vocational or labor market testimony to "rebut the schedule".
Q. Can I get an award for lifetime medical?
A. Yes, if the facts justify it and if the doctors document the need for it.
Q. When is a good time to see a lawyer about my case?
A. Several articles in the Articles section analyze typical stages of a case and how having a lawyer at these stages may be helpful. Individuals who should definitely see a lawyer include the following:
-If you believe you may have been injured due to the fault of someone other than your employer (a “third party”) you should see a lawyer immediately. The personal injury section of www.boxerlaw.com has information on third party rights.
-You should also talk to a lawyer BEFORE you or the insurer selects a QME evaluator from a state-sponsored list of three QME doctors (known as a “QME panel”). The QME doctor who is picked will have great impact on your rights and you should get advice BEFORE the QME is selected.
-If the insurer wants to take your deposition (testimony under oath), you will need a lawyer.
-If the insurer is raising issues about apportionment (see below), you should consult a lawyer.
-If you are receiving Social Security Disability, a lawyer will need to help draft the settlement documents, since the settlement language can affect your eligibility for ongoing benefits
-If you are a high wage-earning worker rated under the AMA impairment system, you should see a lawyer to discuss the possibility of using vocational expert testimony to rebut the rating. This could change the outcome of your case
Q. How are workers’ comp lawyers paid?
A. On a contingency fee. You do not have to pay a lawyer a retainer. The fees are subject to approval by the workers’ comp judge. If you receive nothing, there is no fee. You do not have to advance money for costs in a workers’ comp case.
Q. How long will a case take?
A. This depends on your medical treatment and on how complicated your case is.
Q. What happens if my employer did not carry workers comp insurance?
A. This is illegal. You will be entitled to receive benefits from the California Uninsured Employers Fund (UEF). You may also have rights to sue your employer in civil court in this situation.
Q. What are carve-outs?
A. The law now allows some unions and employers to set up an alternate dispute resolution system as part of union contract negotiations. This does not affect most workers, but if you are covered by a carve-out you may still want to seek legal advice about your rights. Most carve-outs allow some forms of legal representation.
Q. What is the Subsequent Injuries Fund?
A. This is a state sponsored fund that may be liable to pay some extra monies to severely disabled workers. Unless your overall rating is determined to be in excess of 70%, it has no bearing on you (and even then, there are other criteria that must be met as well as offsets for other benefits).
Q. What is Serious and Willful misconduct?
A. This is a remedy for a very limited category of California work injury cases. Workers’ comp is a no-fault law, and you can not sue for negligence. If the employer is just negligent, you do dot have a serious and willful claim. But if the employer is more than negligent, you may have a serious and willful claim. These claims are usually found in situations where the employer violates serious OSHA safety orders, where the employer tells the employee to complete a task excessively and clearly dangerous and is outside the usual scope of work, where the employer’s request is close to intending the worker get hurt, etc. Each case of this nature must be analyzed on its own facts. If an employer if found guilty of serious and willful misconduct, the employee will receive a 50% boost in benefits s/he would have otherwise received.
Q. Can my employer terminate me after a work injury?
A. Under Labor Code 132A, it is illegal for your employer to discriminate against you because you have been hurt on the job or because you have pursued workers’ comp benefits. If there is a 132a violation you may be
entitled to receive back pay, reinstatement and a $10,000 penalty. But note that California law does not specify how long an employer must keep an employee on its books if the employee is not capable of returning to work. If you are covered by a union contract, the union contract language may affect this. If your employer terminates you or fails to consider reasonable accommodations you request, you may have rights to pursue a disability under FEHA (the California Fair Employment and Housing Act), which is
administered by the California Department of Fair Employment and Housing (DFEH). You can learn more about your reasonable accommodation rights by checking the employment law pages on www.boxerlaw.com
Q. What is apportionment?
A. There are two types of apportionment. The first is apportionment to other causes. The law now says that when addressing permanent disability, the doctors must assign approximate percentages of disability to all causes. In other words, your injury or condition may be industrial, but when evaluating permanent disability the doctors are to address all of the various causes of the disability. Before the Arnold Schwarzenegger workers’ comp reforms, it was hard for an insurer to deduct for things such as “pre-existing non-disabling pathology”, degenerative conditions, the aging process, etc. Under the change in the law and court cases interpreting this (including the Escobedo and Yeager cases), these deductions may be legal depending on the circumstances.
The second type of apportionment is apportionment to a prior award. In the past, an insurer did not get to take an automatic deduction from a disability percentage award just because the worker had received a percentage award in another case. Now the law specifies that at the time of a later injury an earlier percentage of disability awarded is presumed to still exist. The legal drafting of this provision is a bit unclear and the California Supreme Court will be considering how this provision is to be applied.
Apportionment is a major source of litigation in workers’ comp cases. Even if you are assigned a fair overall rating, apportionment can reduce the rating substantially. The California courts will be fine-tuning apportionment rules and principles for the next few years.
Q. Can the insurer do surveillance on me?
A. Yes. Clearly you do not give up all your privacy rights just because you have a claim. On the other hand, the insurer can hire investigators to do spot checks to see what you are up to. This can include taking films of you while in a public place or if you are visible from a public place. This could include you being followed into a store or a mall, for example, to see what you are capable of lifting and carrying, for example.
Q. Can injured workers be prosecuted for fraud?
A. Yes. Occasionally injured workers are charged with fraud. You should be extra careful to avoid claiming that you cannot do things you do or have done while you are under treatment for your injury. If you fail to disclose that you are working while collecting full temporary disability payments, you may be putting yourself in a fraud situation. There are other ways that
allegations of fraud could arise. This could include intentionally exaggerating your symptoms. Make it a rule to tell the truth to your treating doctors, the evaluating doctors, the lawyers and the court.
Q. Where can I get more detailed information?
A. Workerscompzone offers information in a number of different formats. In the right navigation, of this blog, you will notice buttons for podcasts, links/resources and articles. Check out all of these to get more detailed information. As always, however, if you have a pending claim we urge you to seek personalized legal advice from at attorney. This blog is not designed to give you specific legal advice about how your particular claim should be handled. To see our disclaimer, click here.
Q. If I want to get a lawyer but no lawyer will take my case, how can I get help?
A. Most of the California Workers’ Compensation Appeals Board district offices have an Information and Assistance Officer (known as I&A officer).
These individuals are not lawyers, but they are there to give some basic guidance to individuals going through the system. You can go see the I&A officer. Unfortunately, the 2003 and 2004 workers’ comp reforms have caused some attorneys to leave the practice. In some parts of the state it is hard to find an experienced attorney. We hope that some of the materials on this blog will be of some help to you, but there is no substitute for personalized advice from an attorney who can evaluate all of the factors in your particular case.
Q. When it comes time to settle my case, how is that done?
A. There are 2 types of settlements:
-stipulations (“stipulated award”) which may be with open future medical awarded or without further medical. A stipulated award can be reopened within five years of your injury if your condition worsens or your disability status or medical needs change.
-compromise and release, which may be with future medical or without open medical (caution: it is relatively rare for an insurer to offer a compromise and release with future medical open, though it does happen sometimes). A compromise and release cannot be reopened or set aside.
The pros and cons of these types of settlements are analyzed in Articles
section on this blog. If you are receiving Social Security disability or are eligible for Medicare, special care needs to be taken with any settlement. The settlement terms may affect your eligibility for ongoing Social Security Disability checks and/or Medicare benefits.
WE HOPE THE FORGOING FAQS ARE HELPFUL. For more information, visit us at www.boxerlaw.com and continue to browse through this blog.
Archives
