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Your right to workers' compensation benefits is mandated by the California Constitution. In accord with this, the legislature has enacted a multitude of laws governing the administration of workers' compensation benefits.  Courts of limited jurisdiction called the Workers' Compensation Appeals Board or WCAB have been created to resolve disputes involving work injuries. 

 

There are currently approximately seven different sets of laws which apply to workers' compensation cases. The date of your injury determines which set of law the WCAB will apply, however, the basic benefits have remained somewhat stable over time. It is very important to understand that the workers' compensation system provides for limited benefits for a work related injury. 

Medical Care

The first obligation of your employer and its insurance carrier is to provide you with medical care without any deduction. You should never see a bill.  You are entitled to all medical care which is reasonable and necessary to cure, or relieve you from the effects of your industrial injury.

 

You are also entitled to be paid mileage for your transportation to your medical appointments. Mileage is paid at the rate of 58 cents per mile for travel on or after Jan 1, 2019, regardless of the date of injury. At the conclusion of your case, your lawyer may be able to get an award of lifetime medical care from a Workers' Compensation Appeals Board judge.

Temporary Total Disability

If you miss time from work, you are typically entitled to receive a wage loss benefit called temporary disability. This is paid at two thirds of your average weekly wage up to certain maximums. 

 

The minimum TTD for 2019 is $187.71 and the maximum TTD for 2019 is 2/3 AWW (Average Weekly Wage).  The minimum TTD for 2020 is $194.41 and the maximum TTD for 2020 is 2/3 AWW (Average Weekly Wage). It is important to understand that California workers' compensation is a system of limited benefits. As of April 19, 2004 temporary disability is limited to a period of two years. The temporary disability is tax-free. 

 

Payments are not made for the first three days you are disabled unless you are hospitalized or unless you are unable to work for more than fourteen days. Once your doctor releases you to return to work or declares your condition to be stable, the temporary disability benefit stops. The TTD rate is affected by the California State Average Weekly Wage (SAWW).  In recent years the SAWW has been: 

Vocational Retraining

 

If your doctor gives you some restrictions, then it is up to your employer to accommodate those restrictions. If they can accommodate the restrictions, then you simply return to work within the modifications. 

 

The law previously provided for vocational retraining, however in 2004, the law changed and the vocational retraining program was eliminated.  It was replaced with a Supplemental Job Displacement Voucher (SJDV). For injuries occurring after 2013 injured workers can apply for a Return to Work (RTW) Supplement Program to receive a one time $5,000.00 payment. 

 

To be eligible for the RTW program payment an injured worker must have sustained an injury on or after 1/1/13 and must have received a supplemental job displacement voucher for the injury. To get the payment, the injured worker must apply electronically at a kiosk at the WCAB. There is no provision for the application to be filed by an attorney. 

 

The injured worker must take the voucher to the kiosk at the WCAB and apply for the payment. The deadline to apply is within 1 year of when the SJDV was served on the injured worker.

Permanent Disability

If the injury or illness results in a permanent handicap, then you may also be entitled to a recovery for permanent disability. Again, this is a very limited benefit. Again the law change in 2004 severely limited this benefit (the benefits were slashed by about 60%). This is a standard of recovery which is unique to workers' compensation.  It is important to note that you are not entitled to a recovery for pain and suffering. 

 

Your recovery is based upon the disability described by the doctors who evaluate you. The Workers' Compensation Appeals Board, the insurance company, and your lawyer all interpret the medical evidence to determine the percentage of disability that you have. Once the percentage is established, then the recovery amount is rather simple as it is scheduled in the labor code. Simply put, a certain percentage will relate to a certain dollar recovery under the labor code. 

 

You must understand that workers' compensation law is somewhat politically driven. The insurance company has a lot more money to lobby the lawmakers. With this in mind, you can imagine how fair the system is to injured workers. In sum, the sooner you accept that the workers' compensation system is more concerned with saving insurance companies money than with providing you benefits, the sooner you will understand why the system works so poorly for injured people. 

Death Benefits

If the injury or illness results in death, then a benefit will be paid to your surviving dependants. 

 

If you have questions about your rights and you do not wish to consult a lawyer, you should contact the State Office of Benefit Assistance and Enforcement. They can be reached toll free at 1-800-736-7401. 

Interplay Between a Cumulative Trauma Work Injury and a SSDI Filing

Often our office will interview a Social Security Disability Client and discover that their disability was in fact caused, at least in part, by their cumulative work duties over many years. In such cases, we will often file a cumulative trauma workers' compensation case concurrently with the SSDI case.

 

Very often the insurance company will immediately deny the workers' compensation case claiming that it was filed after the worker left the employment and/or the statute of limitations bars the benefits. The insurance company is often wrong on both of these efforts to avoid paying benefits. Here is why: 

An exception to the insurance companies post-termination defense arises when the date of injury, as specified in Labor Code section 5412 is subsequent to the date that applicant was given notice of termination.

Labor Code Section 3600 (a) (10) states, in pertinent part, that: "Except for psychiatric injuries governed by subdivision (e) of Section 3208.3, where the claim for compensation is filed after notice of termination or layoff, including voluntary layoff, and the claim is for an injury occurring prior to the time of notice of termination or layoff, no compensation shall be paid unless the employee demonstrates by a preponderance of evidence that one or more of the following conditions apply: .....(D) The date of injury, as specified in Section 5412, is subsequent to the date of the notice of termination or layoff.". 

Labor Code Section 5412 states that: "The date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment." 

As explained in the case of J. T. Thorp, Inc. v. WCAB (Butler) (1984) 153 Cal.App.3d 327, 336, 49 CCC 224: "The term 'disability as used in section 5412 is, of course, to be given the same meaning as elsewhere in the [Workers' Compensation] Act [citations], i.e., an impairment of bodily functions which results in the impairment of earnings capacity (Marsh v. IAC (1933) 217 Cal. 338, 344 [19 I.A.C. 159] [citations]. Accordingly, where an employee suffers from a cumulative injury or occupational disease, there is a "date of injury" only at such time as the employee suffers an impairment of bodily functions which results in the impairment of earnings capacity."

"A 'disability under the Workmen's Compensation law connotes an inability to work."(Herrera v. WCAB (1969) 34 CCC 382). In SCIF v. WCAB (Rodarte) (2004) 119 Cal.App.4th 998 [69 CCC 579], the Court of Appeal made clear that neither medical treatment nor modified work restrictions without wage loss, in and of themselves, are sufficient to constitute "disability" for purposes of Labor Code section 5412. As explained in Rodarte, Labor Code section 5412 requires compensable disability, either temporary or permanent. Permanent disability is not compensable until it is ratable. Except in the case of insidious, progressive diseases, a disability is not ratable until it is permanent and stationary. (Chavira v. WCAB (1991) 56 CCC 631]. 

Given all of this the first evidence of disability will often come well after the last date of work. It can be the PD found in a QME report for example. In such cases the invariable post termination defense by the insurance company will likely fail.

Potential Additional Rights

Depending on the facts of your particular case, you may be entitled to additional rights. For example, if your injury was caused through the fault of another person, or by a faulty piece of equipment, you may be entitled to a "third party lawsuit". In such a situation, you may recover pain and suffering damages, as well as other general damages.  If you believe that there is the possibility of a third party case, you should discuss the situation with an additional lawyer immediately (the time limits on such actions are limited and varied).

“Hiring the The Carlo Law Group was  the smartest thing I did in this entire process! Mr. Carlo & the entire staff made this entire ordeal so much easier!”

— KIM S.

LAW NOTICE:

"Making a false or fraudulent workers compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine."

Please contact us for a free confidential consultation.

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