California Workers' Compensation
If you suffer injury or illness because of your employment, your employer is required by law to pay for workers’ compensation benefits. Under California law this can entitle you to several different classifications of benefits, including medical care, temporary disability benefits, permanent disability benefits, employment retraining benefits, and death benefits.
Workers’ compensation is a no-fault system, which means that there is no consideration of negligence on the part of the employer or employee in causing the injury. An employee injured on the job is entitled to prompt provision of appropriate benefits, and an employer is protected from independent civil liability and personal injury lawsuits. Below you will find brief explanations of many aspects of the workers' compensation system. This information is not provided as legal advice, but as general information. If you have specific questions about anything discussed on this page, please contact our office.
As with all other benefits available under California law, medical treatment requests must be supported by medical evidence and be reasonable and necessary.
Supported by medical evidence means that a prescription or treatment request must be made by a doctor with sufficient rationale given as to how the requested treatment is related to the industrial injury and why the requested treatment is appropriate. Such a prescription or request is submitted to the insurance carrier for approval.
In general, the question of “reasonable and necessary” is covered by the American College of Occupational and Environmental Medicine (ACOEM) Guidelines (Second Edition), which was adopted by the California Legislature as the default medical treatment guideline. If a variance from the guidelines is necessary, a doctor must specifically reference another evidence based medical guideline which supports the treatment being requested.
Medical treatment requests submitted to an insurance carrier are often reviewed as allowed under Utilization Review provisions.
Once properly submitted to the insurance carrier, there must be a review and determination within five days. A utilization review determination can approve, deny, modify or delay a request. The determination is to be made by a physician and must provide rationale for the decision.
A UR denial or modification can be appealed by the physician requesting the treatment, or by the injured worker or their attorney. Such an appeal is to be in writing, and invokes the use of a medical/legal review of the disputed treatment item.
Temporary Disability (TD) benefits are paid to an injured worker when their injury prevents them from doing their normal and customary job and puts them in a “Total Temporary Disability Status”. There must be medical support (a doctor’s order) for any period off work.
TD benefits are supposed to represent 2/3 of an injured worker’s average weekly earnings on the date of the injury. There are minimum and maximum rates which apply, which depend on the date of injury. There are also special rules in situations of seasonal employment.
For dates of injury prior to 4/19/04, an injured worker is entitled to up to 240 weeks of temporary disability benefits.
For dates of injury between 4/19/04 and 12/31/07 an injured worker is entitled to 104 weeks of temporary disability benefits, with the time limit measured from the first date of payment of the benefit.
For dates of injury after 1/1/08 an injured worker is entitled to 104 weeks of temporary disability benefits paid within 208 weeks of the date of injury.
Permanent Disability Benefits are intended to compensate an injured worker for the diminished future earning capacity which results from an industrial injury.
Upon reaching a "Permanent and Stationary" status in the opinion of a treating or evaluating physician, a thorough physical evaluation is conducted and an opinion on percentage of permanent physical impairments is given.
After various adjustments are made to the percentage of disability, taking into consideration the impact of the injury on future earning capacity, and an injured workers' age and occupation at the time of the injury, a percentage of disability is assigned. A percentage of disability can fall anywhere from 1% to 100%, and there is a dollar award which corresponds to the percentage of disability.
Permanent Disability benefits are paid out at a specific weekly rate, which depends upon the date of injury and percentage of disability. Permanent Disability benefits are payments towards a final award, and credit is often given to the insurance company for payments made up until the date of a settlement.
Applicant Attorney's fees are contingent upon the Permanent Disability Award, and in general can range anywhere from 9% to 15% of the total payable to the injured worker. The standard percentage in most cases is 12%.
Apportionment is a concept of division of responsibility for an injury. In general, an employer is only held responsible and liable for the percentage of disability which results from injury occurring while someone is in their employ. If there is pre-existing disability from a prior injury (whether industrial or non-industrial), or any contribution to an injury from non-industrial components, evaluating doctors are asked to give their opinion as to the percentage of the overall disability resulting from the industrial injury, and the percentage of overall disability resulting from other causes.
Apportionment affects only Permanent Disability Awards, since Medical Treatment and Temporary Disability benefits cannot be apportioned.
Attorney's Fees in Workers' Compensation Representation are contingent fees based on an award of benefits. Attorney's fees range from 9% to 15%, and are subject to approval by the Workers' Compensation Appeals Board. There is no situation in workers' compensation representation where you are required to pay for an attorney's services out of your pocket.
For injuries which occurred prior to 1/1/04, an employee who is prevented from returning to their usual and customary employment due to industrial injury may be entitled to Vocational Rehabilitation Benefits. This benefit provides for up to $16,000.00 to be used for schooling, vocational training, or establishing a small business which will enable the injured party to return to the labor market.
During active participation in vocational rehabilitation, the applicant is provided with a weekly living expense, called Vocational Rehabilitation Maintenance Allowance (VRMA).
Legal representation can be obtained specifically for vocational rehabilitation, and it is separate and distinct from representation in pursuit of other Work Comp benefits. Attorney’s fees are 12% of VRMA paid out in the claim, and is withheld from the benefit paid.
There is a "sunset" provision for Vocational Rehabilitation Benefits within the California Labor Code, which does away with all such benefits for all individuals as of 1/1/09.
For injuries which occurred after 1/1/04, an employee who is prevented from returning to their usual and customary employment due to industrial injury may be entitled a Supplemental Job Displacement Benefit. This benefit is payable only after the securing of a permanent disability award, and the amount of the benefit depends on the permanent disability award.
For injuries resulting in 1% - 14% PD - $4,000.00
For injuries resulting in 15% - 25% PD - $6,000.00
For injuries resulting in 26% - 49% PD - $8,000.00
For injuries resulting in 50%-99% PD - $10,000.00
In the event death caused by an industrial injury, a spouse or other partial or total dependent may be entitled to an award of compensation, including an allowance for burial expenses. When there is a minor dependent, benefits can continue until the age of 18 is achieved.
A deposition is a fact finding procedure allowed under the laws of discovery. It is a common tool utilized by Insurance Carriers for the purpose of getting a sworn statement from an injured worker or other relevant legal or medical witness.
A deposition is conducted in an informal setting, in the presence of a certified shorthand reporter. It generally consists of a question and answer format conducted by an attorney representing the insurance carrier and/or employer.
An injured worker is also entitled to legal counsel and representation during a deposition. The costs of the deposition and fees for legal representation must be paid by insurance carrier.
When an employee is not represented by an attorney, the services of a Panel QME can be utilized when either party disagrees with the opinion or treatment request provided by a treating physician.
The process is initiated by a Panel Request submitted to the Industrial Medical Counsel. In response to such a request, the IMC will provide a list of three physicians within the specialty requested. These physicians are randomly selected from a pool of QME physicians certified by the State of California.
The applicant has 10 days within to select the evaluating physician from the list of three. If there is failure to do so within the 10 days, the right to select the doctor switches to the defense.
Once a Panel QME evaluation is attended the physician becomes the only medical/legal evaluator who can be used in the claim. The doctor’s opinion can be questioned through written inquiry or the taking of a deposition, but no other Panel QME or AME (see below) can be utilized. It may be possible to contest a Panel QME’s opinion by a strong medical opinion from a treating physician, but it is very likely that a Panel QME would be followed by the court.
It is important to keep in mind is that if you are planning to seek legal counsel, do so prior to attending a Panel QME appointment if at all possible!
An AME is only appropriate when an injured employee is represented by an attorney. When there is representation, the law requires that the parties enter into discussion regarding the use of an AME. Either party can suggest a physician to act as AME within the appropriate medical specialty. While there are specific labor code sections covering the time periods within which agreement can be made to an AME, use of an AME is heavily encouraged by the Workers’ Compensation Appeals Board, thus time limits are commonly waived if agreed by the parties.
An Agreed Medical Examiner is a physician agreed to by the parties who conducts an evaluation or evaluations and reports to all parties. AME services are paid for by the insurance carrier.
An AME represents the final medical authority in a claim. As long as their reporting constitutes substantial medical evidence, their opinion must be followed by parties and the court. An AME can only be replaced or substituted by agreement of the parties or death or incapacity (i.e. retirement) of the physician who acted as AME.
If there can be no agreement to an AME, the parties can request a Panel QME list from the Industrial Medical Counsel (see above). When received, each side has the right to strike one of the three physicians listed. The remaining doctor will act in the capacity of Panel QME in the claim.
There is no additional recovery available to an applicant because an injury is caused by negligence of an employer or co-employee. However, in the event of wonton or reckless disregard for safety, additional recovery may be possible for “Serious and Willful Misconduct”.
The evidentiary requirement for proving S&W is very high. Successful proving of serious and willful misconduct on the part of the employer can result in an augmentation of a permanent disability award.
In situations where an employee has acted with wonton or reckless disregard for safety and injury has resulted, a S&W petition can be pursued by the employer, with the intent of reducing benefits payable to the injured worker.
When an individual suffers an injury on the job, caused by the actions or negligence of a 3rd party not associated with the employer, the may be independent grounds for a civil action which can be pursued contemporaneously to a workers’ compensation claim.
The common situation where this might arise is when an employee is in an automobile accident while on the job. If the accident is the fault of an independent third party, there may be liability on the part of that 3rd party.
Generally, there can only be recovery in the amount which would the maximum from the party with the highest level of coverage. The individual parties or insurers may have rights to contribution and/or subrogation between them.
It is a violation of California law for an employer to discriminate against an employee because they have sustained an injury on the job. This means that an employee should never lose their job, or suffer a reduction of wages or benefits in retaliation or response to having suffered or reported an injury.
If an employer acts in such a discriminatory manner, legal action can be pursued for compensation of lost wages or benefits, or for reinstatement of employment.
A Statute of Limitation is a statutory bar on pursuit of a particular type of legal action after the passage of a specified period of time. In California Workers' Compensation there are two applicable Statutes of Limitation.
First of all, an injury must be reported to an employer within 1 year of the date of injury. Reporting can be as simple as a verbal statement made to a supervisor, though it is always advisable to put such notice in writing to prevent future conflict.
Secondly, an injury must be filed with the Workers' Compensation Appeals Board within 5 years of the date of injury in order for the court to have jurisdiction over the claim. This is accomplished by filing an Application for Adjudication of Claim with the appropriate branch of the Workers' Compensation Appeals Board.
A Stipulated Award is an agreement to settle between the parties to various conclusions in the case. Items generally covered by stipulations include the injury which occurred, the parts of body injured, the periods of temporary disability and rate of benefits appropriate for those periods, percentage of permanent disability, future medical treatment provision, attorney’s fees, and satisfaction of liens.
By settling in this fashion, and injured worker retains the right to reopen a claim if still within the statute of limitations. See Petition to Reopen below.
A permanent disability award is paid out at the appropriate benefit rate until completely satisfied. When settling in this fashion there is not a lump sum payment of benefits, unless they are accrued benefits due.
A Compromise and Release (C&R) is a settlement which represents a compromise of all issues in the case and release of all liability. Such an agreement will generally settle all outstanding issues, including injury, temporary disability benefits, permanent disability benefits, and the right to future medical treatment in exchange for a lump sum settlement amount.
Settlement by way of a Compromise and Release is achieved by agreement of the parties only. There is way for one party to force another party to agree to a settlement amount, or enter into a compromise and release against their wishes. Additionally, a compromise and release cannot be ordered by the court without the agreement of the parties.
If an individual is eligible for Social Security Disability and/or Medicare benefits at the time they wish to settle by way of a C&R, Social Security and Medicare’s interests must be taken into consideration. Depending on the scope of the settlement, there can sometimes be an offset of SSDI benefits, or the requirement that a certain portion of settlement proceeds must be used for medical treatment before Medicare would be required to assume responsibility.
A claim which has previously been settled by way of a Stipulated Award, or for which there was a Finding and Award from the Workers' Compensation Appeals Board may be reopened if certain requirements are met. In order to be eligible for reopening, a claim must still be within the Statute of Limitations, which for workers' compensation is generally five years from the date of injury. A claim can be reopened for pursuit of new and further temporary disability or permanent disability benefits, where there has been a worsening of an injury and there is documentable medical evidence of such a worsening.
It is not necessary to reopen a claim solely for the purpose of pursuing or enforcing a future medical treatment award.
For members of the California Highway Patrol actively engaged in law enforcement, Labor Code §4800.5 provides that they are entitled to a leave of absence without loss of pay for up to one year if they must go off work due to a industrial injury or illness. In addition to this one year of full pay, there is still eligibility for another year of Temporary Disability Benefits when total temporary disability extends for more than a year.
There are also several presumptions of injury which apply to California Highway Patrol employees. These include but are not limited to hernia, heart trouble, pneumonia, tuberculosis, meningitis and certain back injuries arising during employment, or even after retirement or separation from service under certain circumstances.
The California legislature has determined that employees of the California Department of Corrections should be afforded special treatment and presumptions in certain situations.
When totally temporarily disabled, a CDC employee is eligible for Industrial Disability Leave (IDL) benefits for up to one year rather than Temporary Disability Benefits. The advantage of IDL over TD is payment an actual 2/3 benefit with no maximum rate, rather than a benefit subject to a maximum statutory rate. Additionally, in appropriate situations, there may be eligibility to Enhanced IDL, which is a full pay benefit for up to one year.
There are also several presumptions of injury which apply to employees of CDC with custodial responsibilities. These include but are not limited to hernia, heart trouble, pneumonia, tuberculosis, and meningitis arising during employment, or even after retirement or separation from service under certain circumstances.
The California legislature has determined that employees of city and county police, sheriff's departments and city firefighters should be afforded special treatment and presumptions in certain situations.
Under Labor Code §4850, local law enforcement and firefighters are entitled to a leave of absence without loss of pay for up to one year if they must go off work due to a industrial injury or illness. In addition to this one year of full pay, there is still eligibility for another year of Temporary Disability Benefits when total temporary disability extends for more than a year.
There are also several presumptions of injury which apply to local law enforcement and firefighters. These include but are not limited to hernia, heart trouble, pneumonia, tuberculosis, meningitis, low back injuries arising from the use of a duty belt and certain kinds of cancer arising during employment, or even after retirement or separation from service under certain circumstances.
The California legislature has determined that employees of the California Department of Foresty/CalFire should be afforded special treatment and presumptions in certain situations.
When totally temporarily disabled, a CDF employee is eligible for Industrial Disability Leave (IDL) benefits for up to one year rather than Temporary Disability Benefits. The advantage of IDL over TD is payment an actual 2/3 benefit with no maximum rate, rather than a benefit subject to a maximum statutory rate. Additionally, in appropriate situations, there may be eligibility to Enhanced IDL, which is a full pay benefit for up to one year.
There are also several presumptions of injury which apply to firefighters with CDF. These include but are not limited to hernia, heart trouble, pneumonia, tuberculosis, meningitis and certain kinds of cancer arising during employment, or even after retirement or separation from service under certain circumstances.