Assisting Injured Workers: A Manual on Workers' Compensation for Legal Services Programs

The manual is reproduced below in HTML format. Below you will see a detailed table of contents. Each item will jump you to the portion of the manual that matches the table of contents. Also when you scroll through the document, the references in it will be live. Thus you will be able to click on the references to different laws, regulations, policies, etc. as you read the document and be directed to the source. The California Labor Code (LC) is available online. Citations links for California law jump to the general section and not to the exact paragraph.

Acknowledgments

This document was originally produced by Worksafe which extends its great appreciation to Susan Levin and the Katharine and George Alexander Community Law Center for their significant contribution in the development of this manual.  We would also like to thank the following people for their support and input in preparing this manual: David Rockwell, Glen Shor, Suzanne Marria, Hillary Ronen of La Raza Centro Legal, Henry Martin of The Watsonville Law Center, Andrea Anapolsky formerly of The Watsonville Law Center, and others in the workers' compensation and legal services fields.

TABLE OF CONTENTS

Why is Workers' Comp relevant to Legal Services Programs?

Chapter One: Introduction

Chapter Two: An Overview of the Workers' Compensation System and supplementary materials

Chapter Three: Benefits and Remedies Outside the Workers' Compensation System and supplementary materials

Chapter Four: How to Incorporate Workers' Compensation into Your Legal Services Program and supplementary materials

Chapter Five: The Nuts and Bolts of the Workers' Compensation and other Systems and supplementary materials

Appendix: Tables of Statutes, Regulations, and Cases

 


Why is Workers' Comp relevant to Legal Services Programs?

Nearly one million persons per year are injured on the job in California. Most will only need medical care and will go back to their jobs after full recovery, avoiding any dispute with the employer. However, nearly one in five will have to make their way through the knotty workers' compensation system to press the issue of compensation with their employer.

Injured workers, particularly low-wage workers and workers with limited ability to speak English, face enormous obstacles in obtaining basic information about their rights in California's workers' compensation system. Moreover, many of these workers' employers do not carry workers' compensation insurance, misrepresent the claims process, or terminate the employment of those who seek benefits following an injury. The issues facing low-wage injured workers are some of the most complicated in the workers' compensation system.

Recent California legislation makes it harder for workers to collect awards and obtain medical treatment. Due to the complexity of the issues raised by injured workers and the state laws dictating the amount of attorneys' fees that are paid, many attorneys cannot afford to continue to represent injured workers. Many private attorneys are insufficiently trained in workers compensation.

In the United States, immigrant workers are the most likely to suffer workplace injuries. A report by the AFL-CIO showed that Hispanic men have the greatest overall risk of injury and fatality of any gender, race or ethnic group. Immigrant Workers at Risk: the Urgent Need for Improved Workplace Safety and Health Policies and Programs, August 2005, AFL-CIO, p. 3.

Loss of income and disability due to a workplace injury may be at the heart of the worker's need for your legal assistance. It may be why she needs to file for bankruptcy. Why she cannot make housing payments and is being evicted. Or why she needs to apply for food stamps for herself and her family.

Legal Aid organizations stand on the front lines of advocating for low-income individuals, including low-income and immigrant workers. You are well-placed to serve and outreach to low-income workers to ensure that they receive their fair compensation for an occupational injury.

How can legal aid organizations assist injured workers with workers' compensation claims?

Because the workers' compensation system is so rule intensive and complicated, we caution against representation by legal aid organizations, unless they have a dedicated attorney on staff who works only on workers' compensation. Since we understand that the greatest part of legal aid organizations do not have the capacity to do so, we suggest the following model for assisting injured workers and incorporating workers' compensation into your legal services program:

  • Information and counseling: Enhance or establish a legal clinic which handles workers' compensation issues, the staff or volunteers of which will be supervised by a volunteer workers' compensation attorney. The goal will be, as much as possible, to provide enough information and assistance that the worker can advocate for her or him self through the various steps of the workers' compensation system. The more complicated cases should be referred out.

  • Referral: Establish or enhance a referral program with a pool of private attorneys and organizations who can be counted on as much as possible to accept cases of low-income workers.

  • Education, outreach, and policy change: Provide information to policymakers and the public on issues involving low-income and immigrant workers and their access to compensation for workplace injuries.

What will you learn from this Manual?

This Manual can be of general assistance for anyone attempting to navigate the California Workers' Compensation System. It may also be of assistance in incorporating workers' compensation into your legal aid practice by helping you to:

  • Have a general understanding of workers' compensation law in California;
  • Identify clients who have a potential workers' compensation claim;
  • Inform your clients of their right to compensation for a workplace injury;
  • Educate your clients on how to navigate the workers' compensation system or other actions they might pursue;
  • Obtain additional resources and referral sources for you and your clients;
  • Connect with a broader workers' compensation community interested in improving the system for your clientele; and
  • Consider different ways you could incorporate worker injury issues and advocacy into the infrastructure of your legal services organization.

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Chapter 1: Introduction

I. What is Workers’ Compensation?

A. Workers’ compensation is a state system of medical care and income benefits for workers in California who are injured on the job.

B. Workers’ compensation is the injured worker’s exclusive remedy against the employer, even if the injury was caused by the employer’s negligence. There is no consideration of “fault” unless there is gross intentional conduct.

C. Workers’ compensation benefits comprise temporary disability payments, medical treatment, payments for permanent disability, worker retraining, and death benefits.

D. All California employers are required by law to have workers’ compensation insurance or to be legally self-insured.

E. Employees who work for an employer who is illegally uninsured may seek redress through the Uninsured Employers Benefits Trust Fund or a civil complaint.

F. The statutory scheme for workers’ compensation is set forth in the California Labor Code (LC) and Title 8, California Code of Regulations. Case law has also been generated and is relied upon.

 

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II. A Brief Snapshot of the Workers’ Compensation System

A. To be eligible for workers’ compensation, an individual must be:

1. an “employee” within the meaning of the Labor Code and workers’ compensation;

2. injured;

3. on the job.

B. Benefits of the workers’ compensation system:

1. temporary disability payments;

2. medical treatment;

3. permanent disability payments;

4. worker retraining; and,

5. death benefits.

C. Special situations:

1. Employer is unlawfully uninsured.

2. Employer acted seriously and willfully.

3. Employer discriminated against employee due to an occupational injury.


For an overview of the workers’ compensation system, see Nolo Press, California Workers’ Comp: How to Take Charge When You’re Injured on the Job (5th Edition, Christopher A. Ball, pp. 2/1-8)

 

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Chapter 2: An Overview of the Worker’s Compensation System

 

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I. Who are covered employees within the workers’ compensation system?

To be eligible for workers’ compensation benefits, a worker must be an employee–not an independent contractor. “Employee” for purposes of workers’ compensation is defined as “every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed.”LC 3351.

Anyone rendering service to another, other than as an independent contractor, or unless expressly excluded, is presumed to be an employee. LC 3357.

A. Independent contractors are not “employees,” and are not covered.

1. Is your client an "independent contractor"

If your client has the right to control how she gets a job done, she may be an independent contractor, and excluded from workers’ compensation benefits. Independent contractors generally provide their own equipment and supplies and have a separate business location or work out of their homes.

Note: Many employers or insurers may try to insist that your client is an independent contractor--that does not necessarily mean he is. The key element in determining independent contractor status is that the individual retains the right to control the “manner and means of accomplishing the result desired.” S.G. Borello & Sons v. Dept. of Indus. Relations (1989) 48 Cal.3d 341, 350.

Note: For the fuller statutory description of independent contractor, see LC 2750.5

2. Does your client work for an independent contractor?

If your client works for an independent contractor, she is considered the employee of the contractor and can collect workers’ compensation from that contractor.

In the workers’ compensation system, when an independent contractor is operating without a license when a license is required, she and her employees are considered to be “employees” of the person for whom the services are provided. LC 2750.5.

A general contractor is liable for workers’ compensation to the injured employee of an unlicensed subcontractor; however, the unlicensed subcontractor may still be liable to the employee for civil damages for an injury.

B. Some household domestic workers are covered “employees;” some are not.

A household domestic worker is a person who works at a residence, and whose duties are “incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant.”LC 3351(d).

The following household domestic workers are covered by workers’ compensation:

1. Individuals who worked more than 52 hours in the 90 days prior to the injury and earned more than $100 in wages during the preceding 90 days. LC 3351, 3352(h).

2. And others who:

  • work over 52 hours/week for one homeowner;
  • are part-time gardeners at private residence(s) and work at least 44 hours/month; or,
  • are engaged in casual employment where the work contemplated is to be completed in not less than 10 days and labor costs are at least $100.

LC 3715(b); Hestehauge v. Charkins, et al., 70 CCC 1294, Cal WCAB, 9/23/05 (SFO No. 0452026), currently on appeal.

For many individuals who work at residences, working a 40-hour work week will not ensure workers’ compensation coverage if that employment is with many employers or work with one employer is relatively infrequent.

Although there appears to be some redundancy between those workers described in 1 and in 2 above, there is a major difference between the two: for employers whose workers are described in 1, there are no penalties for being uninsured; there are for the employers listed in 2 and for all other uninsured employers.

Where the residential worker is not covered by workers’ compensation, she or he may file a civil action for negligence or breach of contract. Fault will have to be proven.

C. Undocumented workers can recover workers’ compensation benefits.

Immigrants injured on the job, regardless of immigration status, are covered by workers’ compensation if otherwise eligible. LC 1171.5. A person’s immigration status is generally deemed irrelevant to the issue of liability. Inquiry into a person’s immigration status during discovery is prohibited. Id.

However, an undocumented worker might not be entitled to the whole panoply of benefits offered through the workers’ compensation system. For instance,

  • Job reinstatement could not be ordered (LC 1171.5).
  • An employer may terminate vocational rehabilitation, with a modified or alternative work, if he discovers that the worker’s immigration status prevents him from working in this country. 8 CCR §10131.
  • An immigrant must sign a declaration of immigration status if he applies for benefits with the Uninsured Employers Benefits Trust Fund or the Subsequent Injuries Benefits Trust Fund. 8 CCR § 15740. Note: Some practitioners say this requirement is not enforced and does not create a problem for their undocumented immigrant clients.

D. Temporary workers are covered.

Workers sent to jobs by employment agencies have been deemed by California courts to be employees for purposes of workers’ compensation. In Santa Cruz Poultry, Inc. v. Superior Court (1987) 104 Cal.App.3d 575, the worker was determined to be the employee of both the agency and hiring entity.

E. The post-termination defense can exclude some workers.

Terminated or laid-off employees are excluded from workers’ compensation unless the employee can establish:

  • The employer had notice of the injury before the employee had notice of termination or layoff. LC 3600(a)(10)(A);
  • Medical records of the injury existed before the employee had notice of termination or lay-off. LC 3600(a)(10)(B);
  • The injury is specific (i.e., neither cumulative or an occupational disease) and occurred before the effective date of the termination or lay-off but after the date of notice. LC 3600(a)(10)(C);
  • The injury is cumulative or an occupational disease that occurred after the date of the notice of termination or lay-off. The employee must demonstrate that before the notice of termination, he or she did not know (or should not have known) that the condition was caused by work. LC 3600(a)(10)

    Note: In the case of a cumulative injury or an occupational disease, the date of injury is that date when the employee’s injury first affected his ability to work and he either knew or should have known that the disability was caused by work. LC 5412.

The exclusion of terminated employees from workers’ compensation benefits creates an exception which could be easily exploited by an unscrupulous employer. If an employee does not immediately inform the employer of the injury (in writing is always best) or seek medical care, he stands a chance of making himself vulnerable to a retaliatory discharge that could go unchecked if the employee cannot establish that the employer knew of the injury. This underscores the importance of the worker immediately making a record of the injury, either through notice to the employer or by seeking medical care.

The exclusion of terminated employees from workers’ compensation benefits does not apply in the case of an employee who voluntarily resigns from his job.

If an employee is terminated following his occupational injury, he may have a claim for retaliation under LC 132a.

F. Federal, transportation, and defense workers are excluded from the workers’ compensation system.

Most federal employees (5 USC 8101-8193) and certain types of workers in the transportation industry, such as seamen, railroad employees (except office workers), longshore workers, and harbor workers (45 USC 51-60), and defense workers (42 USC , 1651-1654, 1701-1717 see Chapters 11 and 12.) are excluded. They are limited to federal remedies.

G. Others are excluded.

In addition, the Labor Code excludes a miscellany of other workers such as a sports event officiator who receives only a stipend for his services. For a more complete list of excluded individuals, see LC 3352-337.

 

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II. What does it mean to be “injured” within the workers’ compensation system?

An “injury” need not result from a single specific incident, but can also be one that develops over time.

A. Specific injury: Occurs as a result of “one incident or exposure which causes disability or need for medical treatment,” for example, falling from a ladder. LC 3208.1.

B. Cumulative injury: Occurs as “repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for treatment.” For example, repeated work at the keyboard causes wrist symptoms; repeated exposure to loud noise causes hearing loss. Id.

Note: The date of a cumulative injury is that date when the employee’s injury first affected his ability to work and the employee knew or should have known that the resulting disability was caused by work. LC 5412. For an employee to “know” that a disability is caused from work, the patient must generally be informed of this by a doctor.

 

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III. What does it mean to be injured “on the job” within the workers’ compensation system?

For an injury to have occurred “on the job,” it must have arisen “out of and in the course of employment” (AOE/COE). LC 3600. “Arising out of” conveys that there is a causal relationship between the employment duties and the injury; whereas, “arising in the course of” employment signifies that the injury occurred within the time and space limitations of the employment. See CEB, California Workers’ Compensation Practice, 4th Edition, § 2.33.

By law, an injury does not arise out of or in the course of employment under the following circumstances:

A. When the injury occurs as a result of the injured employee’s intoxication by alcohol or unlawful use of a controlled substance. LC 3600(a)(4).

B. When the injury or death is self-inflicted. LC 3600(a)(5),(6).

C. When the injury is a result of violence where the employee is the instigator of a physically violent altercation. See LC 3600(a)(7).

Note: An injury sustained in an altercation that grows out of a dispute over employment may be compensable, whether inflicted by a supervisor, fellow employee, or a subordinate. Conversely, an injury sustained from a dispute based on personal animosity will not be considered to have arisen out of employment. CEB, California Workers’ Compensation Practice, 4th Edition, § 2.28.

D. When the employee is coming or going to work. Exceptions: worker is driving during the work day for work purposes, or employer provides transportation or pays for travel expenses. See, for example, Zenith National Insurance Co. v. WCAB (DeCarmo) (1967) 66 Cal.2d 944, 948.

 

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IV. If a worker is injured and temporarily unable to work, he receives wage replacement payments called “temporary disability” (TD) while he is recovering.

A. An employee is eligible for temporary partial disability (TPD) if the injury or illness limits the employee to fewer hours of work, or to a lower paying job. The TPD benefit is 2/3 of “weekly loss in wages,” assuming that the employee’s part-time work results in less pay than he would have received if he didn’t work and received temporary TOTAL disability benefits.LC 4654.

B. An employee is eligible for temporary total disability (TTD) when she is unable to work at all for a period of time:

1. Benefit is 2/3 of the average weekly earnings (LC 4653, 4654), subject to statutory minimum and maximum rates (LC 4453).

2. For injuries in 2005, the minimum weekly payment is $126 and the maximum weekly payment is $840.

3. For 2006, the minimum is $126, maximum is $840 or [1.5 x state weekly average salary], whichever is greater.

4. For 2007, and thereafter, amount of minimum and maximum payments are as in 2006 plus cost of living adjustment (COLA).

C. When do payments start? What is the waiting period?
Temporary disability payments are not payable for the first 3 days of injury, unless the temporary disability period is longer than 14 days or the employee is hospitalized (LC 4652).

D. How often are payments made?
Payments should be made every two weeks. If payments are not made on time, they are automatically increased by 10% (LC 4650).

E. How long can payments last?
With a few exceptions, for injuries that occurred on or after April 19, 2004, temporary disability payments are limited to "104 compensable weeks within a period of two years from the date of the commencement of the temporary disability payment." LC 4656c(1)(2).

Some practitioners believe this means that even if your client collects only two weeks of temporary disability payments, she cannot collect anymore for that injury after the two-year window (104 weeks) has passed. Other say the case law has not been generated on this, so the issue is unclear.

Exceptions: if a client suffers from one of the following conditions or injuries, temporary disability payments may be extended to no more than 240 weeks within a period of five years from the date of the injury
(LC 4656 c (2)):

1. Acute and chronic hepatitis B

2. Acute and chronic hepatitis C

3. Amputations

4. Severe burns

5. HIV

6. High-velocity eye injuries

7. Chemical burn to the eyes

8. Pulmonary fibrosis

9. Chronic lung disease

F. For injuries that occurred before April 19, 2004, temporary partial disability payments cannot extend for more than 240 weeks within a period of five years from the date of the injury. LC § 4646(b).

G. Taxes: Temporary disability payments, permanent disability payments, proceeds from a compromise and release or a vocational rehabilitation maintenance allowance are not taxable as income.

H. What happens when the injured worker is ready to go back to work?

For post-April 19, 2004 injuries, employers with more than 50 employees must offer an employee who has become permanent and stationary regular, modified, or alternative work for a period of at least 12 months. If employment is not offered within 60 days, the employer is liable for permanent disability benefits increased by 15%. LC 4658(d)(1). The flip-side to this is that if the employer makes a suitable offer that is rejected, an employee?s permanent disability benefits will be reduced by 15%.

For more information, see Nolo Press, California Workers’ Comp, How to Take Charge When You’re Injured on the Job, 5th Edition, Christopher A. Ball, pp. 12/1-8.

 

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V. Medical treatments (LC § 4600)

In general, an employer is required to provide all medical treatment that is reasonably required to cure or relieve the worker from the effects of the injury. Within one working day of the employee filing a claim form with the employer, the employer must authorize treatment for the injury. While the claim is pending, treatment must continue until the claim is denied or until medical costs reach $10,000, whichever is the earlier date. LC 5402c.

A. What types of care are covered?
Medical, surgical, chiropractic, acupuncture, hospital, psychological.

B. What types of treatment are covered?
Nursing, medicines, medical and surgical supplies, crutches, appropriate apparatus such as orthotic, prosthetic devices, services of physical therapist. (LC 3209.5) Note: cost of travel is also covered. See Avalon Bay Foods v. WCAB (Moore) (1998) 18 Cal.4th 1165, 1173.

C. Medical treatment must be reasonable and appropriate.
The employer is only required to pay for medical treatment that is considered reasonable and appropriate. The temporary standard for what is seen as reasonable and appropriate is the “Occupational Medicine Practice Guidelines” published by the American College of Occupational and Environmental Medicine (ACOEM). Employers must establish a utilization review program to make sure treatment given to injured workers is consistent with these guidelines. See DWC Fact Sheet: “Answers to your questions about utilization review" (pdf).

D. Predesignating a doctor before an occupational injury occurs is an option for some workers.

An injured worker feels more confident of a doctor’s care if he knows her. Within the workers’ compensation system, a worker may identify who he wants as his treating physician if he were to be injured. However, this right to “predesignate” a doctor is very limited and may not apply to your client. To predesignate, all of the following must apply:

  • The employer provides non-occupational group health coverage;
  • The designated physician is the employee?s primary care physician who has previously directed his medical care and retains his medical records; and
  • The physician agrees to be predesignated.

LC 4600(d).

If all of the above circumstances apply, a worker may predesignate his physician.

Click here for a form that allows you to predesignate your own physician.

E. Medical Provider Networks (MPN’s)

As of 1/1/2005, employers may establish a network of physicians (75% of whom primarily treat occupational injuries and 25% of whom primarily treat non-occupational injuries) from which their occupationally injured employees receive medical treatment. (LC4616.3) This means that the employer designates a medical group to be the source of medical care for its injured workers. The process of obtaining medical treatment and changing doctors is different for workers whose employers have medical provider networks.

For more information on obtaining medical treatment when the employer has established a medical provider network, see Chapter 5, Section III: How to get medical treatment.

 

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VI. Permanent Disability (PD) (LC§ 4658)

Definition: The disability that remains after the healing period, and has become “permanent and stationary” or there has been a “maximal medical improvement.” An injured worker is entitled to payments for a permanent disability that affects the workers’ ability to compete in the open market.

The definition for the older term, “permanent and stationary,” is very similar to that of the current “maximal medical improvement:” a condition that is well stabilized and unlikely to change substantially in the next year with or without medical treatment.

For injuries occurring on or after 1/1/05, or injuries still causing temporary disability on 1/1/05, permanent disability is based on the percentage of whole body impairment determined as provided in the 5th Edition of the American Medical Association Guidelines to the Evaluation of Permanent Impairment (AMA Guidelines) and diminished future earning capacity based on empirical data. LC 4660.

A. Permanent disability payments are due within 14 days of the last temporary disability payment and due every two weeks thereafter. LC 4650(c).

B. Employers with more than 50 employees who offer work to the injured employee will be able to decrease the amount of permanent disability by 15%; if no work is offered, the PD will be increased by 15%.LC 4658(d)(1).

C. Apportionment: The underlying concept of PD is that an employer should only have to pay for the disability caused by the injury and that any pre-existing disability or restrictions should be “apportioned out.” (LC 4663, 4664)

D. Total permanent disability: Few permanent disabilities are determined to be “total.” However, the following are presumed to be “total:” 1) loss of both eyes or loss of sight in both eyes; 2) loss of both hands; 3) injury resulting in a practically total paralysis; 4) injury to the brain resulting in incurable imbecility or insanity.

Benefit amount: Temporary total disability amount for life, plus COLA for injuries on or after 01/01/03.

E. Partial permanent disability: Anything less than 100% is a permanent partial disability.
Based on the treating physician’s or medical evaluator’s report, a worker’s permanent disability will be given a percentage value or a “rating” by the Disability Evaluating Unit of the DWC. This percentage is the basis for determining how long an injured worker may receive permanent disability benefits. A permanent partial disability benefit is determined in the following way:

1. Disability rating (represented in a percentage) which is converted into the number of weekly benefits a person is entitled to, is multiplied by;

2. 2/3 of average weekly salary (personal disability indemnity rate) or the maximum weekly benefit amount for that disability rate, whichever is the lower amount.

 

Maximum Weekly Payments for Injuries Occurring after the Following Dates (Based on Percentage of Disability)

7/1/96

1/1/2003

1/1/2004

1/1/2005

1/1/2006

1-14.75% @ $140/wk

1-14.75% @

$185/wk

1-14.75% @

$200/wk

1-14.75% @

$220/wk

1-14.75% @

$230/wk

15-24.75% @

$160/wk

15-24.75% @

$185/wk

15-24.75% @

$200/wk

15-24.75% @

$220/wk

15-24.75% @

$230/wk

25-69.75% @

$170/wk

25-69.75% @

$185/wk

25-69.75% @

$200/wk

25-69.75% @

$220/wk

25-69.75% @

$230/wk

70-99.75% @

$230/wk

70-99.75% @

$230/wk

70-99.75% @

$250/wk

70-99.75% @

$270/wk

70-99.75% @

$270/wk

 

Minimum Weekly Payments for Injuries Occurring after the Following Dates (Based on Percentage of Disability)

7/1/96

1/1/2003

1/1/2004

1/1/2005

1/1/2006

$70/wk

$100/wk

$105/wk

$105/wk

$130/wk

Note: the above charts are from Workers' Rights Clinic, Employment Law Manual 2005-2006, The Legal Aid Society/Employment Law Center, p. 209.

 

Example: Joe was injured in 2005. He was given a permanent disability rating of 30%. His weekly average salary is $525/week. Two-thirds of $525/week = $350. The maximum weekly benefit for injuries occurring in 2005 with a permanent disability rating of 30% equals $220/week. Therefore his weekly benefit is $220, the lower of $350 and $220.

See LC 4658 for explanation of formula for converting disability rating into number of weeks a worker could receive permanent disability payments; and Nolo Press, California Workers’ Comp, How to Take Charge When You’re Injured on the Job, 5th Edition, 2004, (Nolo Press), pp. 13/1-11 and Appendix 3 for chart that converts disability rating into weeks of receiving benefits.

See Chapter 5, Section VI: How to get a rating for permanent disability.

 

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VII. Worker Retraining

A. Vocational rehabilitation injury pre 2004

Vocational rehabilitation provides limited help to injured workers whose restrictions prevent them from returning to their usual jobs. Until January 1, 2009, employees injured prior to January 1, 2004 are entitled to a maximum of $16,000 in vocational rehabilitation benefits, which can include payment for services of a counselor, schooling, and a maintenance allowance.

Vocational Rehabilitation is overseen by the Vocational Rehabilitation Unit, also referred to as the Rehabilitation Unit of the DWC.

B. Supplemental job displacement benefit injuries in 2004 and after

For workers who were injured in 2004 or after, there is no longer a “vocational rehabilitation” program or benefits. Instead, for workers who are permanently partially disabled, “supplemental job displacement benefits” are available if the employee does not return to work within 60 days after the termination of temporary disability benefits. LC 4658.5, 4658.6.

The benefit for this program is in the form of vouchers to be used for tuition, books, career counseling. The value ranges from $4,000 to $10,000, depending on the level of disability.

It is unclear whether this program would be off-limits for workers due to undocumented immigration status. But there is currently no express prohibition, as there is for vocational rehabilitation.

  • 1. A worker is not eligible for this program if within 30 days of the termination of temporary disability benefits, the employer offers and the employee fails to accept modified work, accommodating the individual’s work restrictions and lasting at least 12 months;

  • 2. A worker is not eligible for this program if within 30 days of the termination of temporary disability benefits, the employer offers and the employee fails to accept alternative work meeting all of the following conditions:
    • The employee can perform the essential functions of the alternative job;
    • The job will last at least 12 months;
    • The job will pay within 15% of what the employee was earning at the time of the injury;
    • The job is located within a reasonable commuting distance from the employee?s home at the time of the injury.
    • For more information, see Nolo Press, California Workers’ Comp, How to Take Charge When You’re Injured on the Job, 5th Edition, Christopher A. Ball, pp. 14/1-20.

 

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VIII. Death benefits

Where an injury causes death, the employer pays burial expenses up to a maximum of $5,000, and a death benefit to the dependents, including the spouse. LC 4701, et seq. The amount of death benefits depends on the number of dependents and the date of injury. See LC 4702. The death benefit is paid in weekly installments.

For more information, see Nolo Press, California Workers’ Comp, How to Take Charge When You’re Injured on the Job, 5th Edition, Christopher A. Ball, pp. 15/1-6.

 

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IX. Uninsured employers

If your client’s employer is illegally uninsured, she has recourse to three different actions:

1) File a civil action against the employer for negligence;

2) Notify the District Attorney;and

3) File a claim against the employer and Uninsured Employers’ Benefits Trust Fund (UEBTF).

For details on how to pursue a workers' compensation claim when the employer is uninsured, see Chapter 5, Section II: How to file a claim for uninsured employers' benefits.

 

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X. What if the employer deliberately engaged in serious and willful misconduct?

A. Under LC§ 4553, when a worker is injured by the serious and willful misconduct of the employer, the amount of compensation to an injured worker is increased by one-half.

B. To be “serious and willful,” the act must be deliberate, performed with knowledge of the probable consequences. The adjectives commonly used are “positive, active, wanton, reckless.”

C. In cases where there is a finding of serious and willful misconduct, there usually has been a violation of a Cal-OSHA safety order.

D. A separate pleading has to be filed with the WCAB within 1 year of the date of the employee’s injury.

E. Employer (not insurer) pays the employee directly for its intentional conduct.

 

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XI. What if the employer discriminated against the employee for filing a workers’ compensation claim?

A. Under LC 132(a) if an employer discriminates against an employee because he engaged in certain protected conduct such as filing a claim, the employer may be liable for a 50% increase of benefits, up to $10,000. Also, the employee can get reinstated and reimbursed for lost wages.

B. A separate pleading has to be filed with the WCAB within 1 year of the date of the discriminatory conduct.

C. Since this involves intentional conduct on the part of the employer, the employer (not the insuer) pays the employee directly.

 

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Chapter 3: Benefits and Remedies Outside the Workers’ Compensation System

 

In addition to, or instead of, a claim for workers’ compensation, there may be other actions or benefits that your client could pursue. To be on the safe side, it is important that you advise an injured worker about any possibility of a third party claim or any other potential remedy. In a case where an attorney represented the plaintiff in filing an initial claim only, and then referred the client on to another attorney, the court observed that “[A] lawyer, who signs an application for adjudication of a workers’ compensation claim and a lawyer who accepts a referral to prosecute the claim owe the claimant a duty of care to advise on available remedies, including third party actions.” Nichols v. Keller (1993) 15 Cal. App. 4th 1672, 1687.

The following list is not necessarily exhaustive. It is a brief overview of other actions or claims, whose availability depends on the circumstances of your client and his injury.

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I. Third Party Claim

If your client’s injury occurs because of the wrongdoing of a third party, she may pursue a civil action for negligence against that third party, including one based on product liability for chemical exposure. Example: A bread delivery van is struck by a motorist going through a red light. The injured worker has a workers’ comp claim against the bread company as well as a civil suit for negligence against the driver who struck him. There will be offsets to prevent double recovery.

 

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II. State Disability Insurance-Unemployment Disability Compensation

Most California employees are covered by the unemployment compensation disability program, which provides benefits for nonoccupationally-caused disabilities. Unemployment Insurance Code (UIC) §§ 2601-3272. For purposes of State Disability Insurance (SDI), a person is “disabled” if he is unable to perform his regular or customary work because of his or her physical or mental condition. UIC 2626. Undocumented workers currently may receive SDI benefits.

Your client would be wise to file a claim for SDI benefits with the Employment Development Department at the time of disability for several reasons:

If his workers’ compensation carrier delays responding to the claim for 90 days or denies the worker’s claim, the injured employee may receive SDI while the workers’ compensation matter is being resolved.

If your client’s workers’ compensation award is less than it would have been under SDI, he is entitled to the difference from SDI. UIC 2629.

Client should file a claim in order to freeze his salary at the level it is at the time of onset of disability. This is necessary because the EDD disposes of all wage histories after 18 months. If the client does not file a claim to freeze his salary, he will have no salary history upon which to base a benefit two years later, after temporary disability benefits run out.

For more detailed information on SDI and how an injured worker files a claim for SDI, seeChapter 5, Section X: How to file a claim for state disability insurance benefits.

 

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III. State Disability Insurance--Family Temporary Disability

A member of your client’s family who misses work while providing care for your disabled client may be eligible for Family Temporary Disability Benefits, also known as Paid Family Leave. UIC 3300-3306. The family member would file a claim with the Employment Development Department (EDD).

A “family member” is defined as a “child, parent, spouse, or domestic partner.”UIC 3301.

The program provides up to six weeks of wage replacement benefits. UIC 3301.

The caregiving family member has a guarantee of job security and insurance continuance under federal Family Medical Leave Act and California Family Rights Act (CFRA) for up to 12 weeks. Govt. Code 12945.2. However, these only cover public agencies and employers with 50 or more employees.

For more details on who is covered by the CFRA, see 2 CCR 7 297.0(d)(e).

 

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IV. Unemployment Insurance (UIC §§ 100-2115)

If your client is ready to return to work and has been released by the doctor, but there is no work available with the former employer, she may be eligible to receive Unemployment Insurance (UI) benefits. Even if she is only able to work with some limitations, she may be eligible for to receive UI benefits. However, she must be able, available, and looking for work.

Generally, a person is eligible for unemployment insurance benefits if she has been terminated from her job. A person is not eligible to receive UI benefits for any period of unemployment and disability for which he or she receives workers’ compensation payments. However, if a worker’s disability payments under workers’ compensation are less than they would be under UI, the worker is entitled to the difference from UI. UIC 1255.5.

Undocumented individuals are not eligible for UI benefits. UIC 1264. The courts do not consider undocumented workers “available for work.”UIC 1253c.

Contact EDD at 1-800-300-5616 (English) 1-800-326-8937 (Spanish) or at their website http://www.edd.ca.gov/fleclaim.htm to file a claim for UI or get questions answered.

 

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V. Sick leave or vacation time

If your client has any vacation or sick time benefit, she can use them. Receiving sick leave or vacation time does not relieve the employer or insurance carrier from paying workers’ compensation benefits for the same period; neither can the amount of payment be reduced. LC 3752. Undocumented workers, as all workers, have a right to be protected by wage and hour laws and cannot be terminated for complaining about work conditions.

 

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VI. Federal or State Medical Leave Act

The federal Family Medical Leave Act (29 USC 2601-2654) and the California Family Rights Act (Govt. Code 12945.2) guarantee workers the right to return to work after up to 12 weeks of time off due to serious illness or injury. The Acts also guarantee the continuation of insurance benefits, if any, during the time-off. This also applies to the family members who must care for the injured worker. See Section III of this chapter. Presumably this protection is applicable to undocumented immigrants; however, if the employer refuses to provide the leave and instead fires the worker due to discovering the worker’s undocumented status, that may be legal. (See Note at end of this section regarding the Immigration Reform and Control Act of 1986.)

 

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VII. Discrimination based on Disability (mental and physical) including HIV/AIDS or Medical Condition (cancer and genetic characteristics)

If your client believes she has been discriminated against by the employer due to her disability, she may have a claim against her employer for disability discrimination under the California Fair Employment and Housing Act (FEHA) (Govt. Code 12900-12996) or the federal Americans with Disabilities Act (ADA) (42 USC 12101-12213). The FEHA prohibits discrimination against workers, including undocumented workers, with disabilities or certain medical conditions, i.e. cancer and genetic characteristics.

A. An employer who discriminates against a person because of his/her disability may do so only if the employer can demonstrate that:

  • The person is unable to perform the essential functions of the job, and no reasonable accommodation exists that would enable the person to perform the essential functions of the job.
  • The person would create an imminent and substantial danger to himself/herself or a substantial danger to others by performing the job; and no reasonable accommodation can be made to remove or reduce the danger.

B. The following two reasons are not legally acceptable excuses for discrimination:

  • There is only a possibility of future harm to the person or to others.
  • Employing an individual with a disability will cause an employer's insurance rates to rise.

C. Timelines:

A worker must file a claim with:

  • The Department of Fair Employment and Housing (DFEH) within 1 year of the discriminatory acts if he want to pursue a state action under the FEHA;
  • The Equal Employment Opportunity Commission (EEOC) within 180 days if he wants to pursue his action in federal court under the ADA.

Note: Click here to find an EEOC office near you. Click here to find a DFEH office near you.

For more information on pursuing accommodations for your client's disability and filing a charge with the DFEH for disability discrimination, see Chapter 5, Section IX: How to get a workplace accommodation for disability.

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VIII. Victim of Violent Crime Indemnification

If your client was the victim of a violent crime in the workplace, she or he may be eligible for financial assistance and reimbursement for out-of-pocket expenses from the State Board of Control for financial assistance. Govt. Code 13959-13969.5. However, if any benefits are paid through a workers' compensation claim, the Victims of Crime Program is entitled to have a lien against the proceeds. See http://www.boc.ca.gov/victims/; or call 1-800-777-9229 to apply.

 

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IX. Uninsured Motorist Insurance

If your client was injured on the job by a negligent uninsured motorist, your client should contact his or his employer’s automobile insurance company. A worker’s or employer’s auto insurance covering uninsured motorists may be the source of medical payments or other personal injury damages suffered by the worker. The amount paid and payable by workers’ compensation will be deducted from any amount owed under the policy.

 

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X. Veteran’s Benefits

If your client has qualifying military service, s/he may be eligible for service- or nonservice-connected disability compensation. To file a claim, contact the Veteran’s Administration. Apply for VA disability pension benefits online at http://vabenefits.vba.va.gov/.

 

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XI. Public Benefits

Explore eligibility for Medi-Cal, SSI, and food stamps with your client (or investigate the possibility of increased benefits if the injured worker is already receiving any of these).

If your client has undocumented immigration status, check each program for any prohibition that may apply before starting the application process.

 

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Special note regarding immigration status and other claims and benefits:

The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for employers to knowingly hire or continue to employ undocumented workers.  Therefore, employers can generally terminate undocumented workers because of their undocumented status and can refuse to hire an undocumented worker due to immigration status.  This is a complex area of the law and the facts of each particular case affects the outcome.

 

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Chapter Four: How to Incorporate Workers' Compensation into Your Legal Services Program and supplementary materials

 

Based on our conversations with legal services programs which assist individuals with workers' compensation issues, we know that workers' understanding of their rights to workers' compensation benefits varies. Many workers have some sense of their right to medical care after a workplace injury. However, many have no idea there is a workers' compensation system that could help them. Placing a question or two about workplace history and any injury or illness within your intake process would be useful.

Workers seek assistance at various stages of the process and with an array of problems such as:

  • Worker was just injured and needs to file a claim. Employer is denying that injury took place;
  • After being injured, the employer said that he would "take care of everything" so worker didn't file a claim. The employer is not covering the medical bills or anything else, even though there are very serious injuries;
  • Client has lost confidence in doctor, wants to change physicians;
  • Claim has not been denied and doctor has indicated that client should be on temporary disability, but the client has received no temporary disability payments or medical care;
  • Medical care has not been offered or provided by the employer after the report of injury;
  • A worker is injured and employer takes worker to "quack" for medical treatment;
  • Client not feeling confident of attorney. He thinks the attorney may have "sold him out" based on the conditions of the settlement agreement. Client needs settlement agreement explained to him;
  • Client needs other documents explained to him;
  • Client has settled case by stipulation but now his injury or illness has gotten worse.

The above examples reflect the fact that many employers of low-wage workers do not carry workers' compensation insurance, misrepresent the claims process, or terminate the worker's employment if they seek redress or notify the employer of the injury or illness. If the worker speaks no or very limited English, the worker has to contend with that barrier as well. Due to the complexity of both the issues raised by injured workers and the state laws dictating how attorneys' fees are paid, many private applicants' attorneys are not accepting cases.

Your organization can assist injured workers with their occupational injury legal problems and help fill this legal gap. The following three-prong model provides guidance for incorporating workers' compensation assistance into your legal services program:

  • Information and counseling at evening drop-in advice clinic sessions or workshops supervised by a workers' compensation attorney and/or through distribution of written materials;

  • Referrals to private applicant's attorneys;

  • Education and outreach to policy makers and the public and policy change.

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I. Provide information and counseling at drop-in advice clinic

The greatest number of injured workers can be assisted through a drop-in advice clinic. The following model was developed based on the Model for Free Workers Compensation Legal Service Programs for Low Wage Injured Workers, prepared by the East San Jose Community Law Center (now Katharine and George Alexander Community Law Center), conversations with other legal aid clinics in California, and with Worksafe.

We believe that helping workers advocate for themselves is how limited resources can best be leveraged to provide legal help to the most people. Contact Worksafe to help facilitate a relationship with workers' compensation attorneys in your region who would be willing to supervise your attorneys, paralegals, and or/student interns at workers' compensation clinics or other advice clinics where workers' compensation is addressed.

Be prepared to provide effective referrals. Incorporate a follow-up system to your referrals.

A. Consider starting each clinic by presenting an overview of the clinic process and workers' compensation.

Some clinics, such as the one with the Day Laborer Program at La Raza Centro Legal (La Raza Centro) in San Francisco, begin with a presentation by their Counselors on the subject of the clinic. Their presenters are workers who have been trained by La Raza Centro on the subject matter, how to make oral presentations, and how to interview clients. If the workers have an overall view of the workers' compensation system, the volunteer or attorney at your legal clinic may have a more meaningful and productive intake interview or conversation with the client.

(Contact Worksafe for a script to use in an injured workers workshop.)

At this point, it might be useful to tell the attendees that the clinic's approach is to provide information, advice, and assistance in order to help workers advocate for themselves through the workers' compensation system. Where appropriate, a referral to a private attorney or another organization or agency will be provided. Tell clients they are welcome to return to the next scheduled advice clinic if their present issue is not resolved or if new problems arise.

B. If a worker still needs assistance or guidance with her particular problem after the presentation, begin the intake process.

1. Provide a disclosure statement to each worker which informs her of the following:

  • Clinic services do not constitute representation by the legal aid office;
  • Information discussed and collected during the clinic is confidential;
  • Clinic services are free to its low-income clients;
  • Referrals are made whenever appropriate;
  • Clients are interviewed on a first-come, first-served basis by a trained counselor who will seek advice from an on-site volunteer attorney (a workers' compensation applicants' attorney practicing in the local community).

Once clients have read the Disclosure Statement, they complete the Client Questionnaire.

2. Clients' names are listed on a roster in the order in which they complete the Client Questionnaires.

C. Clients are interviewed by a trained volunteer or a legal services staff attorney (counselor).

1. If the counselor is not an attorney, she begins each interview by introducing herself as a trained student or community volunteer working under attorney supervision, and explaining that she is not permitted to answer questions without first consulting with the attorney.

Note: At some legal services clinics, law student interns act as the counselors. If a law student is certified under State Bar Rules, she or he may represent a workers' compensation client before the Workers' Compensation Appeals Board.

2. The counselors then reiterate issues raised in the Disclosure Statement and tell the client that:

  • Clinic is for advice and guidance only, and does not constitute representation;
  • All information discussed and gathered is confidential;
  • Clinic services are free and may be sought as often as needed;
  • Clinic will make every effort to provide referrals and/or additional assistance if needed.
  • Counselors conclude this introductory phase of the interview by answering general questions regarding the format of the clinic.

3. Counselors gather case-related information from clients by first reviewing the Client Questionnaire the client has completed and making sure that each of the questions is answered clearly.

4. A detailed interview then takes place between the client and the counselor using the Intake Questionnaire.

A few clients have an in-depth understanding of the workers' compensation claims system and come to the Clinic with specific questions, while others are just beginning the claims process and have little or no knowledge of the laws and filing procedures. This intake questionnaire is developed to help determine where clients are in their claims processes, what specific issues the worker wants addressed, and how best the legal services program can assist the worker given its capacities.

5. Counselors discuss client cases with the attorney.

After the initial client interview, counselors excuse themselves and consult with the workers' compensation volunteer attorney or the legal services attorney who is supervising the clinic session. Using the Questionnaires, notes, and any documents the client has brought, clinic counselors synthesize the facts of the case, identify the legal issues if possible, and solicit feedback from the attorney.

If the attorney has questions about a case that the clinic counselor cannot answer with the information previously gathered, the attorney will help the clinic counselor develop targeted follow-up questions for the client.

6. A customized plan of action can then be developed for the client.

When the attorney has all of the necessary information, she and the counselor will consider the relevant workers' compensation law and the specific information, advice, or referral that is appropriate for the worker, keeping in mind the capacity of the legal services program.

After the attorney and the counselor discuss the issues, the counselor and the attorney will meet with the client and provide him options for a plan of action, and answer the client's questions.

In addition to legal advice at the clinic, a plan of action could include:

  • Providing a referral to a workers' compensation attorney (perhaps the volunteer attorney assisting at that clinic session) or a referral list of applicants' attorneys in the geographic area;
  • Providing written information, including sample letters, fact sheets, and forms;
  • Using a template in your office, helping the client prepare a letter from himself to the employer.

7. If any follow-up services are required, clients should be told that the clinic's services do not constitute representation by the legal services program or the clinic and that additional questions will be handled at future clinic sessions.

8. Clients are encouraged to attend additional clinic sessions when they need ongoing assistance with their cases. This legal clinic format enables and encourages many clients to handle claims on their own while learning the system with free, ongoing legal support.

9. To be on the safe side, send clients seen one-on-one at the clinic a closing letter to make sure the fact that you are not "representing" them is clearly communicated.

 

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II. Provide effective referrals.

A. Develop relationships with individual workers' compensation applicant attorneys and the California Applicants' Attorneys Association (CAAA): http://www.caaa.org.

1. Attend CAAA educational seminars to develop contacts and for your own education;

2. Attend CAAA regional meetings that generally convene once per month. There, you can learn the current Workers' Compensation Appeals Board procedures and law and meet other attorneys who represent injured workers.

3. Ask the attorneys if they would like to receive referrals from your office and, if so, what types of cases they might be willing to take.

4. If you are planning to present workshops, ask the attorneys if they would be willing to participate in them.

B. Develop a relationship with the Information and Assistance Unit (I&A) of the Division of Workers' Compensation. The I&A Office provides individual counseling, referrals, and free workshops which provide a 1-hour overview of workers' compensation and provide handouts. The goal of the workshop is to help injured workers "take charge of the process." Click here for a schedule of workshops; or your client can call 1-800-736-7401 for pre-recorded information on their rights under workers' compensation. In addition to workshops, the office is available for walk-in counseling; or the client can make an appointment ahead of time. At many offices, a worker can also get a referral to a private attorney from the office's volunteer referral list. Among other things, the I&A staff reviews settlement agreements for judges to provide an opinion on fairness of the amounts and other conditions.

You can establish a relationship with the I&A office near you by attending a local workshop and introducing yourself to the presenter. It can also be fruitful to meet over coffee or lunch with an advisor at the I&A office to discuss the services they provide and how you can help injured workers access their office most effectively.

 

C. Things to think about in setting up your own referral service:

  1. Should you "screen" the referral panel?

  2. Should you have a disclaimer on your referral list?

  3. Should you require the referrals to have legal malpractice insurance?

  4. Should you phone the attorney, discuss the case, and make the appointment or just hand the "client" a referral list?

  5. Should you even have a referral panel?

  6. How about directing your "client" to the Yellow Pages, or the County Bar Association, or to CAAA?

  7. Legal and State Bar issues around a referral system:
    According to the California State Bar Ethics Hotline, a legal organization is not required to be Bar certified to provide legal referrals, as long as the referring organization receives no referral fee. The Ethics Hotline cites California Rule of Professional Conduct 1-600(a) as authority. The Ethics Hotline also stated that an organization may refer a client to an individual attorney (as opposed to providing the client a list of attorneys), with the key requirement being that there is no fee exchanged for the referral.

 

D. Develop tracking and follow-up system for referrals.

In order to determine the effectiveness of your referral program, create a routine by which someone in your office (legal intern or other volunteer) calls referred workers two weeks after they have contacted your organization. If no one answers the phone, leave a message, clearly identifying yourself. Leave a message twice. If still no return call, it would probably be best to not call again.

Here are some questions you might want to include in a follow-up survey:

  • What was the name of the attorney to whom we referred you?
  • Did you call her or him or otherwise try to contact him? If yes, when? If no, why not?
  • Did you speak with the attorney? With someone else in his office?
  • If yes, were you able to explain any of the facts of your case?
  • Did you have an in-person meeting or consultation with the attorney? What was the outcome of the consultation?
  • Is the attorney currently helping you? On what?
  • Are you satisfied with the legal assistance you are receiving or did receive? If no, why not?

 

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III. Conduct education and outreach to policy makers.

Some policy issues to discuss could include the following:
  • Part-time exception to workers' compensation benefits under LC 3352(h);
  • Barriers to undocumented workers accessing claims against uninsured employers and the UEBTF;
  • Damages from 132a claims;
  • Access to quality medical care; and,
  • Other ideas?

See the Organize for Health and Safety section for more information about how to work for the improvement of OSH laws and regulations.

 

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Chapter Five: The Nuts and Bolts of the Workers' Compensation and other Systems and supplementary materials

I. How to file a claim for workers' compensation benefits.

A client may come into the advice clinic having recently injured his back while carrying boxes of produce at his grocery store job. The store owner said that he'd take care of paying for doctor bills, so client did not file a workers' compensation claim. Client isn't even sure if the store owner has workers' compensation insurance. He has not paid for doctor bills as promised.

Your client needs to get the workers' compensation process going, creating a duty of the employer/store owner to provide for his medical treatment and in order to alert the carrier, if there is one, that there is a claim pending.

A. Does the employer have workers' compensation insurance?

Have the client find out if the employer has workers' compensation insurance and, if it does, who its insurer is, by doing the following:

The employer is required to post the name of the insurance carrier and where to go in case of injury. LC 3550.
Write employer and ask her or him. Enclose a claim form and send the letter certified, return receipt. If he does get an answer, chances are he'll get one on the employer's letterhead, which will probably also tell your client the correct name of the business, which he will need in filing a claim.

OR

Write to WCIRB: Submit request for information or what's called a "Coverage Research Service Request" to the Workers' Compensation Insurance Rating Bureau of California.

If the employer is insured, see the following instructions to assist your client. If not, go to the next section on uninsured employers.

B. If the employer is insured, the injured worker must submit a workers' compensation claim form (DWC-1) to his employer and file an Application for Adjudication of Claim with the WCAB by doing the following:

1. The worker must give notice of the injury to the employer within 30 days of the injury. LC 5400. If the employee has not given written notice, he can do so by letter or by submitting a workers' compensation claim to the employer within 30 days of the injury. The injured worker is statutorily required to file a claim for a workplace injury within one year of the injury.

Note: The employer is required to give the worker a workers' compensation claim form at the time he reports his injury. However, if the employer is avoiding the issue and the payment of a claim, the employee should go ahead and obtain a form and submit it on his own.

Fact Sheet (pdf): How to file a workers' compensation claim form (includes DWC-1 form)

2. Prepare a cover letter to accompany the claim if there are issues that need to be addressed, such as threats of termination.

3. Send any cover letter and completed DWC-1 form to the employer certified, return receipt requested, with instructions to return a dated copy back to the employee and to the insurer.

4. File an Application for Adjudication of Claim with the WCAB, preferably within 30 days, with a Declaration pursuant to LC 4906(g). See "How to file an Application for Adjudication of Claim," Declaration pursuant to Labor Code 4906(g), in the Injured worker guides section found here: http://www.dir.ca.gov/dwc/iwguides.html.

5. Filing the completed DWC-1 Form with the employer tolls the statute of limitations under LC 5405 until the claim is denied or the injury becomes "presumptively compensable." LC 5402.

C. The employee should track the insurance carrier's response to his claim.

1. The employer and insurance carrier must begin making temporary disability (TD) payments to your client or respond with a "delay letter" within 14 days. The delay letter must explain the insurer's inability to determine whether benefits are owed. If the TD payments or the delay letter is not provided to the employee within 14 days, the employer is liable for a 10% penalty. LC 4650, 8 CCR 9812.

2. Your client may receive a notice from the insurance carrier that the claim is under investigation and that a decision will be reached within 90 days as to whether the claim will be accepted. See 8 CCR § 9812 for the various benefit payments and notices that must be sent by the insurer to the claimant.

Advise your client to call the insurance adjustor. Find out if there is information that he could provide to help confirm his eligibility for benefits.

3. If the carrier or administrator neither denies the claim nor notifies the claimant of the delay in determining the claim within 90 days after the claim is made, the claim is presumptively valid or compensable. LC 5402.

4. If the employer or insurance carrier does not dispute the claim, the client will receive medical care and be eligible for temporary total or partial disability until the client's injury is determined to be "permanent and stationary."

a. TD payments will be made every two weeks while the claimant is off work, and while the healing process is still in effect.

b. Consult LC 4656 regarding the duration of temporary disability payments. There are distinctions based on the date of injury and whether the disability is total or partial.

 

PRACTICE TIP: Throughout the course of assisting your clients through a legal clinic, make it clear to them how extensive or limited your assistance will be. For instance, make sure that if you are drafting documents for a client to sign and send, he knows he will continue the process on his own.

For more information, seeNolo Press, California Workers’ Comp, How to Take Charge When You’re Injured on the Job, 5th Edition, Christopher A. Ball, pp. 5/1-15.

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II. How to File a Claim for Uninsured Employers' Benefits

Suppose your client was injured recently and filed a claim with the employer, but the employer seems to be ignoring the claim and instead, wants to take your client to his own doctor. Your client suspects the employer may not carry workers' compensation insurance.

A. Your client needs to determine whether her employer is insured. She can submit a written request for information to the Workers' Compensation Insurance Rating Bureau of California (WCIRB) by letter or by what's called a "Coverage Research Service Request."

B. Options for your client to consider if her employer is uninsured:

1. File a workers' compensation claim against the Uninsured Employers Benefits Trust Fund (UEBTF), most commonly referred to as the Uninsured Employers' Fund (UEF).

§ Filing a claim with the UEBTF is probably the course most likely to lead to compensation for your client. The UEBTF is a legislatively-created agency designed to provide benefits to employees of illegally uninsured employers, regardless of the financial solvency of the employer. LC 3716.

§ The employer can be ordered to pay the attorney's fee (LC 4555) and a 10% increase for willful failure to secure insurance (LC 4554).

2. File an action at law against an employer for the worker's injuries. LC 3706.

§ Refer your client to a personal injury attorney to file a civil action for negligence.

§ Advise your client that this may not be the way to go, however, since the employer may be insolvent and not be able to pay any damages awarded to your client.

§ If your client files a civil complaint, he will have to prove there was negligence on the part of the employer.LC 3708 provides a rebuttable presumption of negligence of the uninsured employer and eliminates contributory negligence, assumption of the risk, or fellow servant as defenses.

§ An employee is entitled to all the usual remedies of a negligence action; however, the employer gets credit for any amount awarded by the WCAB against any damages he must pay the injured employee.

3. Contact the county district attorney or the California Department of Insurance.

It is a misdemeanor to be unlawfully uninsured. LC 3700.5.

§ Your client can report his employer's lack of insurance to the local county District Attorney's Office. Check to see if your county has a workers' compensation fraud department which in many counties is the department that prosecutes uninsured employers. You could also try to speak with a white collar crime department or a general fraud department if there is no workers' compensation fraud department. A short lapse of insurance by an employer who has no prior history of violating the law will probably not result in a penalty. Some district attorneys offices suggest reporting uninsured status to the local police department where the employer is located.

§ Your client could also report the uninsured status to the California Department of Insurance, Fraud division, which investigates allegations of uninsured status and refers cases to district attorneys' offices for prosecution.

§ Advise your client that this action will not result in any benefits or award to him, and it is unclear whether the district attorney will in fact pursue such a complaint.


C. How to file a claim with the WCAB against an uninsured employer and the UEBTF

The following is an overview of the process involved in filing a claim with the UEBTF. It is especially complicated and long; therefore, it is generally best pursued with the help of a workers' compensation attorney. If possible, provide the injured worker a referral or, if you are anticipating representing or assisting a client with this claim, seek the assistance of a workers' compensation attorney.

1. Properly name the employer:

In order to obtain a valid award against an uninsured employer, which is a prerequisite for an award against the UEBTF, the injured employee must correctly name the uninsured employer on all forms, both in the caption and in the body of the form or pleading, and effect service of his application for benefits in the manner required by the CCP for a default judgment. CCP415.10-415.50.

  • Fictitious Names: The caption on all forms should state the employer's true name and fictitious name; e.g., "Sam B. Jones, an individual" and "dba Sam's Diner."
  • Corporations: After the correct corporate name, write the words "a corporation"; e.g., "American Insurance Company, Inc., a corporation." If an employer is a closed corporation, name both the corporation and the substantial shareholders; e.g., "Acme Corporation, John Doe individually and as a substantial shareholder."
  • Partnership and unincorporated associations: State the firm name and the names of each individual partner or member; e.g., "Great Atlas Company, a partnership, and Sam Smith and Robert R. Jones."
  • Fictitiously named parties, i.e., there are unknown or unidentified defendants; e.g. "Neverbilt Company, Inc., a corporation and First Doe to Tenth Doe." Since the caption is not part of the pleading, an allegation should be made in the body of the application that certain parties are being named by fictitious names in their capacities as employers, insurance carriers, or as other proper parties, in case an unnamed individual raises a statute of limitations defense.

Chester Yant, Jr. v. Snyder & Dickenson (1982) 47 CCC 254, citing with approval California Workmen's Compensation Practice (CEB 1973).

You may want to check public records such as the California Secretary of State Corporation website, your city or county's building permit department, your county's Fictitious Business Names website, and the California State Contractors Licensing Board website to check on the correct name of the employer and to see who is designated to accept service of process.


2. If the injured worker was employed by a contractor, she needs to determine whether the contractor was licensed:

§ To determine if an employer is required to have a license, go to the California State Licensing Board's website: www.cslb.ca.gov/licensing/classifications.asp.

§ If the employer was performing services for which a license is required, you may check the validity of the employer's license by performing a license query by license number here: https://www2.cslb.ca.gov/OnlineServices/CheckLicense/LicenseRequest.asp.
A licensed employer would be named as the responsible employer.

§ If the employer was not licensed, the homeowner or general contractor should be joined in the claim and named in the Application for Adjudication of Claim as the "employer." The homeowner is liable unless excluded by LC3352(h) (part-time exception) but the contractor is not excluded.

3. On the line of the Application for Adjudication of Claim asking for the employer's insurance carrier, state "none" or "none known, still investigating."

4. Make sure the packet of documents to be filed and served is complete and includes the following. (See "Answers to your questions about the Uninsured Employers Fund" with forms at http://www.dir.ca.gov/dwc/iwguides.html)

  • Application for Adjudication of Claim, Declaration pursuant to LC 4906(g).
  • Special Notice of Lawsuit. Make sure you serve this on the employer before joining the UEBTF. LC 3716(d).
  • Claim form.
    • Petition to Join the Uninsured Employers Fund as a Party Defendant.
    • Proposed Order of Joinder.
    • Exhibits, such as any information you have regarding the employer's correct name, the letter of no coverage from WCIRB, the licensing status, etc.
    • Cover letter to UEF: Write a paragraph that explains what happened, the extent of the injury, the basic claims etc. You may propose a Medical Evaluator if appropriate. Also send a copy of this letter to the employer.
  • Applicant's medical file.
    • Verification under penalty of perjury that the applicant was employed by employer at time of injury in course of employment. LC3715(c).
    • Petitions under LC 4554 (10% penalty for failure of the employer to secure compensation insurance) and 4555 (award of reasonable attorneys' fees). UEBTF doesn't pay these increases -- employer does.
    • File a lien for non-medical costs.
  • Proof of Service from the process server
Note: Don't forget to serve the uninsured employer with all medical reports and lien claims.

5. Serve this packet on the UEBTF nearest your client, the applicant, the employer, and any medical provider who may want to file a lien. Click here for a directory of UEBTF offices.

 

D. In response to the claim, the UEBTF may:

1. Write to the WCAB with a request that it change how the employer was named; i.e., from Joe's Car Wash to Joe's Car Wash, Inc. This shouldn't require any response from you.

2. Object to the service as being defective. If appropriate, you should re-serve the "packet."

3. Send you a form letter requesting information about the case, some of which you may have already sent them. Read the letter carefully to see if a reply is warranted.

4. File a "Determination that the Employer was Prima Facie Uninsured" with the WCAB. This provides the employer with the opportunity to contest a finding of being illegally uninsured.


E. Then what?

1. Proceed with your case as you would if the employer was insured, using a legal medical evaluator or not, writing a settlement demand to both the UEBTF and the employer, filing a Declaration of Readiness, going to trial or effecting a settlement.

2. In a claim against an insured employer, a settlement or a trial marks the end of the case. In a case against the UEBTF, the UEBTF enters into the settlement and participates in the trial -- not the employer. Since the UEBTF will be attempting to collect compensation from the employer, certain processes take place to ensure due process for the employer following settlement or trial, such as the following:

  • After trial, the worker must serve the employer with a 10 day notice of intent to submit a decision of the workers' compensation judge. 8 CCR 10562.
  • The employee must serve the employer with a 20 day Notice of Intent to Approve Compromise & Release or Stipulated Award. LC 3715(e).
  • If the worker gets an award, it will be against the employer, not the UEBTF. The employer has 10 days after service of the award to make payment. If he does not, make demand on UEBTF for payment. LC 3716(a).

3. Even though the Board has the duty to serve the award, it is good practice for you to serve the employer along with a demand for payment. Then, assuming you receive no payment, you can submit a demand letter to the UEBTF with your demand to the employer for payment.

4. The UEBTF does not pay penalties.

5. The UEBTF does not pay medical expenses that were paid by Medi-Cal.

6. Bankruptcy

If the employer files for bankruptcy while the workers' compensation claim is pending, seek legal assistance right away from an attorney who specializes in bankruptcy law.

 

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III. How to Get Medical Treatment

An injured worker who contacts your office might not know that he can be compensated for the medical costs of a workplace injury. Maybe he has filed for workers' compensation but the employer is not paying for or providing medical care.

He may not have confidence in his doctor and want to change. Here are some ways you can help guide the worker through the process of obtaining medical treatment from a doctor in whom he has confidence:

A. Make sure your client has notified his employer of his injury and that he has filed a claim for workers' compensation, triggering the employer's obligation to provide medical treatment.

For injuries or illnesses occurring in or after 2005, the employer must authorize the provision of treatment within one working day of filing a claim. The employer is required to pay up to $10,000 for medical care until the claim is accepted or denied. LC 5402c.

It is unclear whether there is any obligation to reimburse if the claim is denied after the treatment has been covered by the employer. Some practitioners say "there is no obligation." Others say the issue is undecided.

If your client has filed a claim but the employer has not authorized medical treatment, advise your client to write a letter to the employer, advising him of the legal obligation to cover medical treatment. Suggest that your client follow-up with a phone call.

B. Some injured workers can control choice of doctor; all have a right to change doctor.

1. Your client may be able to see the doctor of his choice even if he did not predesignate. Your client can see a doctor of his choice from the beginning of treatment if any of the following circumstances apply:

  • Employer voluntarily lets employee decide;
  • Employer denies the workers' compensation claim;
  • Employee was not properly notified of his right to pre-designate;
  • After employer was told of the injury, the employer did not give the injured employee claim forms and information about workers? compensation benefits; or
  • Employee requires emergency care.

If any of these circumstances apply to your client, your client should write a letter to the employer, advising him of the employee's right to choose own doctor.

For more information on controlling choice of doctor, see Nolo Press, California Workers’ Comp, How to Take Charge When You’re Injured on the Job, 5th Edition, Christopher A. Ball, pp. 9/7-15.

2. Your client can see a doctor of his own choice 30 days after reporting the injury unless:

  • the employer has established an MPN; or
  • the injured worker is eligible to receive nonoccupational treatment provided by the employer and is receiving care for his injury from health care organization.

If neither of these circumstances applies to your client, he should write a letter to the employer, advising the employer of his right to choose his own doctor and whom he has designated.

At any time, if an injured worker is dissatisfied with the doctor chosen by the employer, he has the right to request a change. LC 4601.

 

C. If your client's employer has established a medical provider network.

The employer must notify employees if it has established a medical provider network. 8 CCR 9767.12. Notice of a workplace injury triggers the employer's obligation to send the employee to a doctor for a medical evaluation and then begin treatment. LC 4600.

The process of medical treatment within a medical provider network:

  • After the initial appointment, the employee may elect to be seen by another doctor in the network.
  • If the employee disputes the diagnosis or the treatment prescribed by the treating physician, he may see another two physicians in the network.
  • If, after the third physician's opinion, care remains disputed, he may request "independent medical review" based on the treatment utilization schedule.

If your client's employer has established a medical provider network, make sure she files or has filed a claim with the employer. She might want to include a letter to the employer, advising him of the legal obligation to provide medical treatment.

 

D. Help your client send the doctor's report of disability to the employer.

If a doctor who sees your client reports some disability or impaired ability to work, your client should make sure to send a copy of the report to the insurer with a request for temporary disability payments. Help your client write a letter with the request.


E. Explore other options for obtaining medical care.

Even though the employer is required to pay for medical treatment immediately for injuries that occurred in 2005 or after, he may still refuse to do so. For workers who were injured before 2005, there is no similar obligation. Moreover, these days, it is easy to spend $10,000 for medical treatment. So what are the options for those workers?

  • Emergency care: If your client needs medical treatment immediately, suggest he go to an emergency ward of a county or private hospital where he cannot be denied care.
  • No or low fee medical treatment: There may be county medical centers and community clinics that will provide services for free or on a sliding scale. Consult the "government" section in the white pages of the phone book for the nearest county medical center.
  • Personal health insurance: Employee may be able to rely on his own health insurance including Medi-Cal.
  • Expedited hearing: Your client can file for an "expedited" hearing within the workers' compensation system whereby the hearing will take placed within 30 days of filing a declaration of readiness. File a "Declaration of Readiness to Proceed to Expedited Hearing."
    Note: See LC 5502 for instances where an expedited hearing is appropriate in addition to resolving the issue of medical treatment.
  • Medical lien: A medical lien is a claim for payment of a debt for medical treatment that is secured by the proceeds from the workers' compensation claim. Advise your client to call a doctor to see if she will treat the injured employee based on a lien on the future workers' compensation benefits.

For more information, see Nolo Press, California Workers’ Comp, How to Take Charge When You’re Injured on the Job, 5th Edition, Christopher A. Ball, pp. 9/1-20.

 

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IV. How to Amend or Reopen a Case

A. Amending a Claim

It is fairly easy to amend a claim when a worker discovers that other body parts were injured. Simply amend the Application for Adjudication of Claim to reflect additional body part injuries. Then serve the new Application on all interested parties, and file it with the WCAB as if it were the original. You might want to refer the client to the I & A Office of the DWC as they are able to help injured workers on this and other issues.

B. Reopening a case

If your client's injury has worsened or has been exacerbated and the case has not been settled, then your client can simply continue to be treated by his doctor.

If your client has settled by entering into a Compromise and Release (C&R), then he will probably not be able to get his medical care paid for as he signed away his right to future payments when he settled. (For more information on settlement agreements, see Chapter 5, Section VII: Section VII. How to settle a case.)

If, however, your client entered into a Stipulation, he has a right to obtain further medical treatments. If your client's claim is not more than 5 years old, you can assist him in filing a Petition to Reopen the Case for new and further disability. The new and further benefits he is seeking must be clearly specified. For example:

Since the date of the Award, I have new and further permanent disability, temporary disability, need for additional medical treatment and need for vocational rehabilitation or supplemental job displacement benefits.

Worker should also state that he has had to see a doctor again and can no longer do his job due to renewed pain.

See "How to File a Petition to Reopen" at http://www.dir.ca.gov/dwc/iwguides.html.

 

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V. How to Obtain a Medical Legal Evaluation if Claim is Disputed.

Your client works at a canning factory where over time she developed carpal tunnel syndrome. She suffers debilitating pain and can no longer do her job. She has filed for workers' compensation, but the employer and insurance carrier are saying that she is not injured and is able to continue her duties.

A comprehensive medical legal evaluation is often required to resolve disputes during the course of the workers' compensation process. Disputes typically arise over whether there is an injury, whether the injury or illness is work related, whether the treatment is consistent with the treating guidelines, and whether there is a permanent disability and its extent.

A. What is contained in a medical evaluator report?

The following is an excerpt from Nolo Press, California Workers’ Comp, How to Take Charge When You’re Injured on the Job, 5th Edition, Christopher A. Ball.

The evaluating doctor who is writing the report discussing your permanent disability has been given additional duties under the new rating schedule (2005 and thereafter).

The doctor must first give you what is called an "impairment rating." The doctor does this by using the AMA Guides (American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition), which uses different scales to describe impairment for different parts and regions of the body. This is a huge book that is difficult to understand and difficult to work with. Therefore, it is very important that your doctor is familiar with the AMA Guides and how to use them, because you will have to rely on your doctor's conclusions.

The various impairments for the different parts of the body injured are then combined and converted by the doctor (using a formula) to what is called a "whole person impairment," or WPI. For example, an upper extremity impairment in the range of 0% to 100% is equivalent to a whole person impairment in the range of 0% to 60%.

B. How to choose a medical legal evaluator:

1. There are different rules pertaining to medical evaluators depending on whether a claimant is represented by an attorney. If the worker is represented by you or someone else, the parties must try to agree upon an evaluator or "Agreed Medical Evaluator." If the worker you are assisting is not represented, then he chooses a "Qualified Medical Evaluator" to examine him and evaluate his injury. LC 4060-4062.3.

2. If the represented parties cannot agree to an AME, they may request the assignment of a 3-member panel of evaluators from the DWC Medical Unit. If there is still no agreement between the parties, each side may strike one evaluator from the panel. The remaining evaluator will serve as the AME. LC 4062.2.

3. Ask local workers' compensation applicant attorneys for suggestions of doctors in the field of medicine your client needs, or what doctors to make sure are stricken from a panel.

C. How to obtain a medical legal examination:

1. Once the evaluator is chosen, your client should call her and set up an appointment.

2. Your client should notify the other side of the time of the appointment.

3. Explain to your client what will occur at the medical evaluation:

The doctor will perform a medical exam. She will take a lengthy history about the accident, medical care the worker has received so far, and what symptoms he is experiencing including the locations, intensities, and durations of the symptoms. The doctor will also inquire about any other injuries or medical problems that might be contributing to the worker's condition, such as diabetes or an injury in a car accident. Your client should think about these questions ahead of time so that the doctor can take a complete and accurate medical history.

4. Your client should send the doctor a copy of all the medical reports and records to date and a detailed letter that explains what areas he wants her to address in her report.

5. If the case has some unusual facts, your client should be ready to explain that to the doctor thoroughly; for instance, the worker might want to elaborate on exactly how he fell from scaffolding or to what chemicals he was exposed.

6. Your client might also want to provide the doctor with a job analysis so that she clearly understands the injured employee's job duties.

D. What happens after the examination and evaluation:

1. Your client will probably get the report back about a month after the appointment.

2. Your client should review it for accuracy.

3. A copy of the report should be sent to the other side.

4. The other side will pay the doctor for the costs of preparing the report.

5. In almost every instance, the doctor's report will be admitted into evidence in lieu of sworn testimony at the time of trial.

6. This is a good time to initiate settlement negotiations, if they are not already underway.

For more information, see Nolo Press, California Workers’ Comp, How to Take Charge When You’re Injured on the Job, 5th Edition, Christopher A. Ball, pp. 10/1-14.


 

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VI. How to Get a Rating for Permanent Disability.

Permanent disability (PD) compensation payments must begin when the treating physician, Qualified Medical Evaluator or Agreed Medical Evaluator indicates: 1) that the medical condition has become permanent and stationary (or there has been a maximal medical improvement) or, where the injury occurred after April 19, 2004, where the worker has been on TD for two years; and, 2) that there is some permanent disability. PD's are rated and given a value which affects the amount of permanent disability benefit.

A. What is the process for rating a permanent disability for workers injured in 2005 or after, and workers injured before 2005 but still receiving TD in 2005 or after?

(The following is an excerpt from Nolo Press, California Workers’ Comp, How to Take Charge When You’re Injured on the Job, 5th Edition, Christopher A. Ball.)

Once the doctor gives his or her opinion on your "whole person impairment," you can obtain a final permanent disability rating from the Workers' Compensation Disability Evaluating Unit (DEU).

What does the DEU do to determine my final permanent disability rating: The DEU rater takes the whole person impairment rating from your doctor's report and adjusts it for your diminished future earning capacity, occupation, and age at the time of injury. Just like under the "?old schedule," a permanent disability rating can range from 0% to 100%.

The DEU rater uses the following steps to arrive at a permanent disability rating:
1. Adjustment for Diminished Future Earning Capacity
2. Occupational Grouping
3. Occupational Variant
4. Occupational Adjustment
5. Age Adjustment
6. Final Permanent Disability Rating
7. Rating Formula

Can I use the new rating schedule to rate my own permanent disability? We recommend that you let the DEU rate the report for you. The raters at the DEU have undergone extensive training in the new rating schedule procedures. Rating a permanent disability yourself under the new rating schedule is both time consuming and difficult -- the manual is rather complicated and involves numerous steps.

For those of you who are very ambitious, the new rating manual does contain detailed step-by-step instructions on how to convert a "whole person impairment" into a permanent disability rating. These instructions are contained in pages 1-4 to 1-16 of the new rating manual.

You can view the new rating manual at the California Division of Workers' Compensation's website at www.dir.ca.gov/dwc/PDR.pdf.

See forms, "Request for Summary Rating Determination of Primary Treating Physicians Report" or "Request for Summary Rating Determination of Qualified or Agreed Medical Examiner" at http://www.dir.ca.gov/dwc/forms.html.

B. If the worker dies before the sum of the permanent disability benefits is paid out, the remainder of the award is NOT paid to his estate.

C. Life pension:

If the permanent disability is greater than 70%, upon the conclusion of the award the worker will receive an additional weekly sum for the remainder of his life. This "life pension" is computed as follows:

(% of disability minus 60) x .015 x weekly earnings.

For more information, see Nolo Press, California Workers’ Comp, How to Take Charge When You’re Injured on the Job, 5th Edition, Christopher A. Ball, pp. 18/1-35.

 

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VII. How to Settle a Case.

An injured worker may come to the legal clinic with a draft settlement agreement that his attorney negotiated on his behalf. He wants your help in reviewing it. He suspects his attorney "sold him out" because the agreement does not seem as favorable as he expected.

A. Help your client determine if his case is ready to settle by deciding if the following conditions apply:

1. Your client's doctors have all said that his injury is "permanent and stationary," i.e., the medical condition has stabilized and further treatments at this time will not help your client;

2. Your client has obtained all the medical reports needed to establish the nature and extent of permanent disability, need for future medical treatments, and has participated in any medical evaluation that the employer has requested;

3. Your client's disability has been "rated." See Section VI in this chapter;

4. You and your client have figured out a monetary starting point for discussions by determining how much your client's claim is worth. (See B. below)

B. Determine how much your client's case is worth and what kind of settlement is appropriate for him.

See excerpt, Nolo Press, California Workers’ Comp, How to Take Charge When You’re Injured on the Job, 5th Edition, Christopher A. Ball, "Figure Out a Starting Settlement Figure," pgs.19/5-14, 13/7-11, at the end of this section.

1. What goes into a settlement:

  • Permanent disability award (based on rating system that puts a value on injuries)
  • Life pension - for severe disabilities over 70%
  • Past due TD payments
  • Reimbursement for mileage
  • Medical expenses you paid
  • Future medical expenses
  • Right to petition to reopen case
  • Penalties - for example, for late payments
  • Past due vocational rehabilitation maintenance allowance or supplemental job displacement benefit

Note: Your client and the insurance company might be having a hard time settling on whether any vocational rehabilitation is due or on the worth of past due vocational rehabilitation maintenance allowance (VRMA). This aspect of the case can be settled separately.

2. Decide whether a Stipulation or a Compromise and Release (C&R) is better for your client. The traditional wisdom was to pursue a Stipulation instead of a C&R if the client might need future medical treatment. Some attorneys say it is difficult to get medical treatment at all these days, so it might not make sense to hold out for medical treatment in the future.

If your client is fully recovered and unlikely to need future medical treatment, then it's probably an easier decision. A C& R could be better because your client might receive a little more money, and receive it sooner. However, emphasize to your client that by entering into a C&R, he is waiving his right to any future payment of medical care.

Comparison of Ways to Settle a Workers' Compensation Case

 

Stipulations with Request for Award

Compromise and Release

Permanent disability

 

Paid every 2 weeks at permanent disability rate until settlement is paid off

One lump sum payment for the full value of permanent disability.

Medical benefits

 

As long as reasonably necessary; you must make written demand on company for authorization for treatment.  May later negotiate buyout of right for future medical treatment.

Money for future medical treatment is included in the lump sum payment.

Right to reopen case

 

No later than 5 years from date of injury, you may petition to reopen your case for new and further permanent disability.

Money for waiving right to reopen case is included in the lump sum settlement.

Vocational Rehabilitation

 

No effect.

No effect.

Above chart from Nolo Press, California Workers’ Comp, How to Take Charge When You’re Injured on the Job, p. 19/5.

C. Initiate or respond to settlement offer.

1. If your client is representing himself, the client should call the insurance representative with whom he has been dealing, and be ready to propose a figure. The first demand should be more than your client expects to receive; however, to preserve credibility, make sure it's reasonable. Asking for 10-25% more than the calculated figure is considered a reasonable starting point for settlement negotiations.

2. Memorialize conversation with a follow-up letter.

Note: Tell your client to expect to negotiate the amount of permanent disability. A dispute is likely to arise if the insurer and the employee are using the ratings of two different medical reports. If your client's doctor's report has rated a 30% permanent disability and the AME report, 20%, a reasonable compromise might be a 25% permanent disability.

See "Information Guidelines for Submission of Settlement Documents," "Stipulation and Award and/or Order," "Stipulations with Request for Award," and " Compromise and Release" at http://www.dir.ca.gov/dwc/forms.html.

For more information, see Nolo Press, California Workers’ Comp, How to Take Charge When You’re Injured on the Job, 5th Edition, Christopher A. Ball, pp. 20/1-24.

 

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VIII. How to File a Declaration for Readiness to Proceed if Dispute Continues, and Participate in a Mandatory Settlement Conference.

Suppose that three weeks ago, a worker filed a workers' compensation claim when she slipped and fell on an oil slick in the mechanics shop where she works. She broke both her right leg and right arm. Her doctor notified both employer and adjustor of the occupational injury on the same day it occurred. She called both her employer and the insurance adjustor, but neither has returned her calls. Your client comes to the legal clinic not knowing what to do next.

A. File a Declaration of Readiness to Proceed.

1. Make sure your client has already filed a claim (DWC-1 form) along with an application for adjudication.

2. Advise the client to complete the Declaration of Readiness to Proceed, and file it with the WCAB office nearest her. See form at http://www.dir.ca.gov/dwc/forms.html.

3. After filing the Declaration, your client will receive a date to appear at a Mandatory Settlement Conference (MSC).

4. By law, the MSC must be conducted at least 10 days, but no more than 30 days, after the Declaration of Readiness is filed; however, many offices do not meet this statutory goal. LC 5502.

5. If for some reason there is no MSC, the trial must take place at least 10, but no more than 75, days from filing the Declaration; again, many offices do not meet this goal.

6. Your client will have an opportunity to negotiate a settlement at the MSC.

B. Participate in a Mandatory Settlement Conference.

1. When a settlement is reached at the Mandatory Settlement Conference:

  • A settlement agreement is drawn up and executed, and the papers and the supporting medical evidence are submitted to a judge for approval.

  • Many Workers' Compensation Appeals Boards allow applicants to submit a settlement and have a judge approve or disapprove it on the spot.

  • If your client can't avail herself of this procedure, then he should submit the settlement to the Board by mail and wait for an approval.

  • After approval, the client will probably receive her settlement check in a couple of weeks.

Note: If the worker you are assisting is undocumented, she may have problems negotiating her check. Most big banks will open an account with two pieces of identification -- passport and school registration, for example. If your client wishes to return to her country of origin, you might consider having someone open an account there and then submit the settlement check to a local bank for wiring to the foreign bank.

2. When settlement is not reached at MSC:

  • If your client and his employer and insurer are still at an impasse, she will be asked to fill out a pretrial conference statement, which delineates the issues and stipulations, and lists each party's proposed disability rating, witnesses, exhibits, and an estimate of the time needed for the trial. LC 5502(e)(3).

  • Some judges want the medical records to be offered at the time of the conference, so your client should be ready to submit these.

  • Discovery will probably be closed.

  • Trial must be held within 75 days after the declaration of readiness to proceed was filed. LC 5502(e)(1). Most offices do not meet this goal.

For more information, see Nolo Press, California Workers’ Comp, How to Take Charge When You’re Injured on the Job, 5th Edition, Christopher A. Ball, pp. 22/1-14.

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IX. How to get a Workplace Accomodation for Disability.

Suppose your client works at a corner grocery story bagging groceries and stocking shelves. He was carrying heavy boxes of apples from a delivery truck into the store's produce section. As he was doing so, he wrenched his back, requiring several days of bed rest. The doctor advised him that he should not be lifting more than 10 pounds. He is now ready to go back to work, and believes that if he has a dolly to use when transporting heavy boxes, he could do his job. He wants to know if he can demand that the employer provide him that equipment.

A. The Fair Employment and Housing Act (FEHA) prohibits discrimination based on disability and medical condition, among others. Govt. Code 12940, et seq.

1. Disability

There are two categories of disability: physical and mental.

§ Physical disability: any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that affects one or more major life activity; any health impairment that requires special education or related services; or having a record of, or being regarded as having, a disability.

§ Mental disability: any mental condition, disorder, impairment that affects a major life activity; requiring special education or related services; having a record of, or being regarded as having, a mental disability.

2. Medical condition

Additionally, the FEHA prohibits discrimination based on medical condition, i.e. cancer and genetics. People with medical conditions are also entitled to reasonable accommodations.

B. The FEHA provides that employers with five or more employees have a legal obligation to provide reasonable accommodations of disabilities.

1. When an employee has a disability, the employer must explore all possibilities of reasonable accommodation prior to rejecting the person for a job or making any employment-related decision by entering into an "interactive process" with the employee.

2. An accommodation is reasonable if it does not impose an undue hardship on the employer's business. The determination of whether an accommodation is reasonable for the employer requires a fact based analysis. The larger an employer, the more likely an accommodation would be deemed "reasonable" as there are more employees to absorb any shift in duties and the employer presumably has a greater financial capacity to fund the employee's needs.

3. An employer may get help from government agencies and outside experts to determine whether accommodation is possible.

 

C. Help your client think about how his workplace could be changed to enable him to do his job. A reasonable accommodation can include, but is not limited to, the following:

1. Changing the job duties;

2. Changing the work shift;

3. Providing leave for medical care;

4. Accommodating work schedules;

5. Relocating the work area; and/or

6. Providing mechanical or electrical aids.

 

D. Your client could request an accommodation from his employer.

1. In a letter, your client could advise his employer about its obligations under the Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA) to accommodate a disability.

2. The letter should let the employer know that she has an obligation to work with the employee and engage in the interactive process to come up with an appropriate accommodation.

3. Your client should follow up with a phone call to the employer; engage in the "interactive process" as much as the employer is willing.

 

E. If the employer is not willing to engage in the interactive process and refuses to reasonably accommodate the worker, advise your client to file a charge of discrimination with the Department of Fair Employment and Housing (DFEH).

1. Filing a charge with the DFEH is a legally required precursor to filing a civil complaint for discrimination under the FEHA. Advise your client of the statutes of limitations for state claims of disability discrimination: Under the FEHA, the employee has one year from the date of the discriminatory act to file a charge with the DFEH.

2. The discriminatory act could be, for example, the employer sending the worker home refusing to provide a needed accommodation, or the employer refusing to engage in the interactive process to determine a reasonable accommodation.

3. Your client may also file a charge with the federal Equal Employment Opportunity Commission to pursue a claim for discrimination under the ADA in federal court. Your client must file a charge based on the ADA with the EEOC within 300 days from the date of discriminatory conduct.
Note: The normal 180-day filing deadline is extended to 300 days when the charge is also covered by a state anti-discrimination law.

4. If the Department does not pursue your client's case, it will issue a "Right to Sue Letter," after which your client will have one year to file a civil complaint for discrimination. You must file a compliant in federal court within 90 days from receiving a right to sue letter from the EEOC.

5. Advise your client that he may want to consult with a private employment law attorney. Provide a referral or refer him to the local county Bar Association Lawyer Referral Service.

See DFEH online Complaints section for more information.

 

F. Remedies that can be awarded by the Fair Employment and Housing Commission, the administrative body which decides claims brought before it under the FEHA, if the Department of Fair Employment and Housing (DFEH) decides to pursue your client's case:

  1. Back pay
  2. Hiring
  3. Promotion
  4. Reinstatement
  5. Out-of-pocket expenses
  6. Front pay
  7. Policy changes
  8. Training
  9. Reasonable accommodation
  10. Affirmative relief
  11. Actual damages, including damages for emotional distress.

In addition to the above, the FEHC may order administrative fines against private employers. These administrative fines combined with any damages awarded for emotional distress cannot exceed $150,000 per aggrieved person per employer.

If an individual decides to pursue his or her case in a private lawsuit, the remedies are identical with two exceptions:

  • There is no limit on the amount of emotional distress damages; and,
  • Instead of administrative fines, unlimited punitive damages may be awarded
    Remedies may also include the payment of attorney's fees and other court costs.

 

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X. How to File a Claim for State Disability Insurance Benefits.

Suppose an injured worker has received a delay letter saying that the insurance company cannot make a decision yet, but will notify her of acceptance (or not) of her claim within 90 days. Your client is currently unable to work at all and will be in dire straits financially if she has no income. She wants to know what her options might be as far as income.

As mentioned earlier in this Manual, you should advise clients to file claims for SDI whenever filing for workers' compensation in order to freeze their employment and income history. This will be important if your client is still unable to work due to disability at the end of the 2-year limit.

Additionally, your client may be eligible to receive state disability benefits while her workers' compensation case is pending. The employee must agree ahead of time to reimburse the unemployment disability carrier with any award from workers' compensation. UIC 2629.1. If your client's workers' compensation award is less than it would have been under SDI, she may be entitled to the difference from SDI. UIC 2629.

Benefits: The amount of SDI benefits are almost equal to workers' compensation temporary disability benefits. UIC 2655. SDI payments last for 52 weeks. Note, though, that SDI does not include any medical treatment benefits -- just income.

A. Find out if your client is eligible for SDI. SDI benefits can be paid only after your client meets all of the following requirements:

  1. She must be unable to do her regular or customary work for at least eight consecutive days.
  2. She must have been employed or actively looking for work at the time she became disabled.
  3. She must have lost wages because of her disability or, if unemployed, have been actively looking for work.
  4. She must have earned at least $300 from which SDI deductions were withheld during a previous period.
  5. She must be under the care and treatment of a licensed doctor or accredited religious practitioner during the first eight days of her disability. (The beginning date of a claim can be adjusted to meet this requirement.) She must remain under care and treatment to continue receiving benefits.
  6. She must complete and mail a claim form within 49 days of the date she became disabled or she may lose benefits.
  7. Her doctor must complete the medical certification of her disability. A licensed midwife, nurse-midwife, or nurse practitioner may complete the medical certification for disabilities related to normal pregnancy or childbirth. (If client is under the care of a religious practitioner, request a "Practitioner's Certificate," DE 2502, from the SDI office. Certification by a religious practitioner is acceptable only if the practitioner has been accredited by Employment Development Department.)

Note: The EDD may require an independent medical examination to determine your client's initial or continuing eligibility.

Note: Your client should apply for benefits even if she is not sure she is eligible. If she is found to be ineligible for all or part of a period claimed, she will be notified of the ineligible period and the reason.

B. Your client may not be eligible for SDI benefits if she:

  1. is claiming or receiving Unemployment Insurance or Paid Family Leave benefits;
  2. became disabled while committing a crime resulting in a felony conviction;
  3. is receiving workers' compensation benefits at a weekly rate equal to or greater than the SDI rate;
  4. is in jail, prison, or recovery home because she was convicted of a crime;
  5. fails to have an independent medical examination when requested to do so.

C. Other exclusions that apply to many low-income workers:

  1. Unemployment Insurance Code (UIC) 629 excludes domestic service workers who do not earn over $1,000 during any quarter in the previous year. When a business, rather than a private homeowner, employs the worker and pays the wages, the worker is not excluded.
  2. UIC 640 excludes workers who provide services outside the employer's regular business, unless the cash paid for such service is $50 or more and the worker is regularly employed by the employing entity. "Regularly employed" means that the employee has worked at least a part of each of some 24 days during that or the previous calendar quarter. This is considered the casual worker exception.
  3. UIC 2606.5 excludes some in-home support service workers who earn less than $750 every quarter in the current and preceding calendar year.

  4. In-home supportive services include domestic services and services related to domestic services, heavy cleaning, personal care services, accompaniment by a provider when needed during necessary travel to health-related appointments or to alternative resource sites, yard hazard abatement, protective supervision, teaching and demonstration directed at reducing the need for other supportive services, and paramedical services which make it possible for the recipient to establish and maintain an independent living arrangement provided to aged, blind, or disabled persons, who are unable to perform the services themselves and who cannot safely remain in their homes or abodes of their own choosing unless these services are provided. Welfare and Institutions Code 12300.

D. Benefit Amounts

1. The amount of SDI benefits are almost equal to workers' compensation temporary disability benefits. UIC 2655. SDI continues for 52 weeks or until the end of the disability, whichever is sooner.

2. Your client's claim begins on the date the disability began. SDI calculates the weekly benefit amount using the employee's base period. The date the disability began determines the base period, unless the claim effective date is adjusted by SDI.

3. If your client's claim begins on or after January 1, 2010, you may determine the base period for your client's claim using the following. If the claim begins in:

  • January, February, or March, the base period is the 12 months ending last September 30. (Example: A claim beginning February 14, 2010, uses a base period of October 1, 2008, through September 30, 2009.)
  • April, May, or June, the base period is the 12 months ending last December 31. (Example: A claim beginning June 20, 2010, uses a base period of January 1, 2009, through December 31, 2009.)
  • July, August, or September, the base period is the 12 months ending last March 31. (Example: A claim beginning September 27, 2010, uses a base period of April 1, 2009, through March 31, 2010.)
  • October, November, or December, the base period is the 12 months ending last June 30. (Example: A claim beginning November 2, 2010, uses a base period of July 1, 2009, through June 30, 2010.)

This base period covers 12 months and is divided into four consecutive quarters. An employee's base period includes wages subject to SDI tax which were paid approximately 5 to 17 months before the disability claim begins. The employee's base period does not include wages being paid at the time the disability begins. For a disability claim to be valid, the employee must have at least $300 in wages in the base period.

4. For claims beginning on or after January 1, 2010, weekly benefits range from $50 to a maximum of $987, depending on the person's income.

5. If you think it would be better for your client's claim to begin later so that she will have a different base period, she can call EDD at 1-800-480-3287 before filing the claim. She may not change the beginning date of the claim or adjust the base period after she has established a valid claim.

6. The quarter of your client's base period in which she was paid the highest wages determines her weekly benefit amount.

7. In the following circumstances, the employee may want to contact the EDD office for additional information:

  • If she does not have sufficient base period wages and remains disabled. She may be able to establish a valid claim by using a later beginning date.
  • If she does not have enough base period wages and she was actively seeking work for 60 days or more in any quarter of the base period, she may be able to substitute wages paid in prior quarters.
  • Additionally, she may be entitled to substitute wages paid in prior quarters either to make the claim valid or to increase the benefit amount if during the base period she was in the military service or did not work because of a labor dispute.

The employer must agree to reimburse with interest the EDD with any award from workers' compensation. UIC 2629.1.

 

E. The SDI Application Process.

Note: Your client need not apply in person to receive benefits. EDD provides services primarily by telephone, by mail, and in person. Call 800-480-3287 (Eng), 866-658-8846 (Spanish) or visit http://www.edd.ca.gov/

Note: If you are an authorized agent filing for benefits on behalf of a client who is physically incapacitated, mentally incapacitated, or a deceased claimant, call 800-480-3287 for required forms and instructions.

Advise your client to:

1. Carefully decide the date she wants the claim to begin. (See "Benefit Amounts" above)

2. Typewrite or hand-write to complete the form.

3. Review all answers for to be sure they are correct and complete.

4. Sign her name in "Claimant's Signature" spaces in both Item 31 and Item 32 and print the date in the "Date Signed" spaces in both items. If she prefers to complete a Health Insurance Portability and Accountability Act (HIPAA) Authorization in large print, she may also complete, sign, and date page 4.

5. Complete all items on the "Claim Statement of Employee" and sign it.

6. Make photocopies of the claim for her records.

7. Mail or bring the claim form (completed, signed "Claim Statement of Employee" plus the blank "Doctor's Certificate") to her doctor for completion of the "Doctor's Certificate" portion. Certification may be made by a licensed medical or osteopathic physician and surgeon, chiropractor, dentist, podiatrist, optometrist, designated psychologist, or an authorized medical officer of a United States Government facility. Certification may also be made by a licensed nurse-midwife, nurse practitioner, or licensed midwife for disabilities related to normal pregnancy or childbirth. If your client is under the care of an accredited religious practitioner, obtain a "Practitioner's Certificate," DE 2502, by calling 800-480-3287; ask the practitioner to complete and sign it. (Rubber stamped signature facsimiles are not accepted.) If the employee is receiving temporary workers' compensation benefits and is filing for reduced SDI benefits for the same days, the Doctor's Certificate is not required.

NOTE: The United States Postal Service (USPS) will not deliver mail (including benefit checks) to a private mail box (i.e., a mail box rented to you by a non-USPS commercial enterprise) unless it is preceded by the initials "PMB."

8. Mail the claim no earlier than 9 days--but no later than 49 days--after the first day she becomes disabled to avoid loss of benefits. Mail the completed, signed "Claim Statement of Employee" together with the completed, signed "Doctor's Certificate" to the closest SDI office listed below:

State Disability Insurance
P.O. Box 60006
City of Industry, CA 91716-0006

State Disability Insurance
P.O. Box 32
Fresno, CA 93707-0032

State Disability Insurance
P.O. Box 469
Long Beach, CA 90801-0469

State Disability Insurance
P.O. Box 513096
Los Angeles, CA 90051-1096

State Disability Insurance
P.O. Box 781
San Bernardino, CA 92402-0781

State Disability Insurance
P.O. Box 120831
San Diego, CA 92112-0831

State Disability Insurance
P.O. Box 1466
Santa Ana, CA 92702-1466

State Disability Insurance
P.O. Box 1529
Santa Barbara, CA 93102-1529

State Disability Insurance
P.O. Box 201006
Stockton, CA 95201-9006

State Disability Insurance
P.O. Box 10402
Van Nuys, CA 91410-0402

 

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Appendix: Tables of Statutes, Regulations, and Cases

 

California Labor Code Sections

 

Who is Covered?

undocumented workers generally covered
unlicensed independent contractor is employee
"employee;" household worker is covered
part-time household workers not covered
no penalty for uninsured homeowner
"employee" presumption
more exclusions
generally, terminated employees excluded
some domestic workers can file claim with UEBTF
excluded employee can file tort action

 

What is "on the job?"

"on the job"

 

What is "injury?"

"injury"
date of cumulative injury
payments for temporary partial disability benefits
notify the employer within 30 days
presumption of compensability if not denied within 90 days
file claim within 1 year

 

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Wage loss

4657 "weekly loss in wages"
"average weekly earnings"

 

Temporary Disability

WC benefits not affected by receipt of other benefits such as vacation or sick leave
minimum and maximum benefits for Temporary Total Disability
when Temporary Disability (TD) payments start
untimely TD payments
formula for benefit amount
TD payments last 240 weeks or 2 years
exception to 2-year cutoff
determining "weekly loss in wages"
4646
TD payments for injuries from 1/1/79-4/19/2004

 

Medical Treatment

what kinds of treatment are covered
predesignation of doctor
utilization review
medical treatment when employer has medical provider network
duty of employer to provide medical treatment up to $10,000 until claim is denied or accepted

 

Permanent disability

definition: obligation of large employers to offer work
what permanent disability (PD) benefit is based on
when PD payments due
apportionment of PD

 

Supplemental job displacement benefits

 

Death benefits

 

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Serious and willful conduct

amount of compensation

Discrimination

 

Medical Evaluations

QME
Medical evaluator - represented, not represented

 

Hearing/mandatory settlement conference

verification under penalty of perjury
declaration by parties and their attorneys attached to application for adjudication of claim stating that there has been no profit taken or offered from any referral
Declaration of Readiness to Proceed
Pretrial conference statement
Trial held within 75 days of filing declaration of readiness to proceed.

 

Uninsured employers

misdemeanor
civil action
rebuttable presumption of negligence of uninsured employer
file against employer and the UEBTF
10% penalty
attorneys' fees

 

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California Code of Civil Procedure Section

default judgement (UEBTF action)

 

California Unemployment Insurance Code Sections

Unemployment Insurance
excludes some domestic workers from SDI and unemployment insurance
excludes casual employment from unemployment insurance and SDI benefits
must be "available to work" to collect unemployment insurance benefits
employee entitled to any difference between workers' compensation temporary disability benefits and unemployment insurance compensation
undocumented workers not eligible for unemployment insurance benefits
state disability income program (SDI) for nonoccupationally injured workers
some in-home support service workers are excluded from state disability benefits
disabled defined
7-day wait
reimbursement of benefits
WC and SDI
benefits
timeline to file
temporary disability benefits for caregiver of injured person

 

California Government Code Sections

Fair Employment and Housing Act (FEHA)
1295.2
CFRA
Victims of crime

 

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California Code of Regulations Sections

UEBTF
family care and medical leave
notices, forms etc employer must give to employee

 

United States Code

42 USC §§
51-60,
1651-1654,
1701-1717

Federal and other employees limited to federal remedies
29 USC §§ 2601-2654
Federal Family Medical Leave Act
42 USC 12101-12213
American with Disabilities Act

 

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California Rules of Professional Conduct

1-600(a)
referral programs

 

Cases

S.G. Borello & Sons v. Dept. of Indus. Relations (1989) 48 Cal.3d 341
defines independent contractor
Santa Cruz Poultry, Inc. v. Superior Court
(1987) 104 Cal.App.3d 575
temporary workers covered by workers' compensation
Zenith National Insurance Co. v. WCAB (DeCarmo) (1967) 66 Cal.2d 944
exception to coming and going rule
Avalon Bay Foods v. WCAB (Moore)
(1998) 18 Cal.4th 1165
covered treatment
Nichols v. Keller (1993) 15 Cal. App. 4th 1672
lawyer duty to advise on other available remedies
Chester Yant, Jr. v. Snyder & Dickenson
(1982) 47 CCC 254
pleading requirements for uninsured employer claim

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