What is Workers’ Compensation and When Should the Worker Seek Representation in Their Workers’ Compensation Case?
What is Workers’ Compensation?
Workers’ compensation insurance is an employer-paid insurance policy meant to cover work-related injuries. All employers in the state of California are required to maintain workers’ compensation insurance coverage for their employees. An industrial injury can occur on a specific date or can occur over time due to deleterious exposure at work. The worker must establish that the injury both arose out of the employment and occurred in the course of employment.
Only employees are covered by the workers’ compensation system; independent contractors are not eligible for benefits.
Filing the Claim and Statute of Limitations
When the employer receives knowledge from any source of a potential work injury, the employer is obligated to provide the employee with a DWC 1 claim form. Once the worker submits the claim form to the employer, the employer has 90 days to investigate whether to accept or deny liability for the claim.[1]
The Workers’ Compensation Appeals Board (WCAB) is the administrative body that adjudicates workers’ compensation claims and determines the parties’ rights and liabilities in the system. If a claim has been denied by the employer, the worker has one year from the date of the injury to file an Application for Adjudication with the WCAB.
Workers’ Compensation Benefits
There are only four benefits available to the injured worker in workers’ compensation: temporary disability, permanent disability, medical treatment, and a job retraining voucher.[2] Temporary disability is a tax-free payment made to the worker while he or she is off of work recovering from the injury. The rate of pay is 2/3 of their gross earnings on the date of injury, up to a statutory maximum.
Permanent disability is paid when the worker’s condition reaches a plateau and is unlikely to significantly change with or without medical care. The worker’s disability is rated on a scale of 0 to 100% permanent disability. The Legislature sets the rate of pay for each percentage of disability.
The permanent disability schedule factors in the extent of the worker’s permanent impairment, their occupation on the date of injury and their age. These benefits are also tax-free. Despite the existence of a permanent disability rating schedule, there is a great deal of litigation over the percentage of permanent disability that a worker receives for the injury, because there are alternative mechanisms to rate the permanent impairment. A 100% disabled worker receives his or her disability payments at the temporary disability rate for life (subject to cost of living adjustments).
If the worker establishes that his or her injury is work related, then he or she is entitled to medical treatment for the injury for life, paid for by the insurance company. The worker must use a doctor from the employer’s list of approved physicians, and individual treatment requests are subject to denial or modification through a process called utilization review.
If the worker suffers permanent disability as a result of the injury and is unable to return to his or her occupation after the injury, then he or she is entitled to a supplemental job displacement voucher for vocational retraining as well.[3]
Getting the Claim Approved
Workers’ compensation claims are often denied on either legal or medical grounds. The employer may challenge the claim on the grounds that the injury did not occur in the course of employment or that the claim was filed after the worker was terminated from the employment. Sometimes the employer denies the claim on the grounds that the medical condition is exclusively non industrial in nature.
If the claim is denied, then the worker should promptly file an Application with the WCAB. Once the WCAB has jurisdiction over the claim, the parties can subpoena records and conduct depositions.[4] However, unlike in civil litigation, discovery tools such as interrogatories and requests for production of records are strongly disfavored.[5] Furthermore, the employer may not file a motion for summary judgement or a demurrer.[6]
If the claim is denied or if the percentage of disability is in dispute, the worker will need to be examined by an independent doctor called a Panel Qualified Medical Examiner (QME). If the claim is denied based on medical grounds, the dispute over whether the injury is compensable under the workers’ compensation system is typically determined by the QME.
If, after the QME examination, the employer still maintains its denial of the claim, the worker can file for a hearing at the WCAB. There are no jury trials in workers’ compensation. Judges at the WCAB take in testimony, review evidence and serve as the trier of fact.
An appeal of a judge’s determination can be filed with the Workers’ Compensation Appeals Board, a body of seven commissioners who are appointed by the governor. If the parties wish to challenge the finding of the Appeals Board, they must file a writ with the Court of Appeal.
Benefits of Hiring an Attorney
If the worker suffers an injury at work that has been promptly accepted by the insurance company and he or she is receiving medical treatment without denials, then that employee may not need the services of an attorney. However, the workers’ compensation system is increasingly complex to navigate, and typically the worker will receive a better outcome on his or her claim with the assistance of counsel.
The worker should at least consult with an attorney when:
- The claim has either been denied by the insurance company or is under investigation
- The worker has been attempting to secure medical treatment for the injury but the doctor’s requests for treatment are denied
- The worker is unhappy with the doctor who is currently treating the injury
- The insurance company instructs the worker to submit to a QME examination
- The injury causes the worker to miss time from work
- The worker has been terminated after reporting a work injury
- The worker feels as though he or she will likely have permanent limitations due to the injury
- The worker received a settlement proposal from the insurance company and he or she believes that the percentage of disability proposed is inadequate
Furthermore, hiring an experienced attorney can help the worker navigate not only the complex legal system involved in workers’ compensation, but additionally, the attorney will be familiar with competent treating doctors in the area and will likely be familiar with the QME doctors who routinely evaluate work injuries. Simply put, an experienced attorney will know which doctors in the area are conscientious and which ones tend to perform perfunctory examinations of the patient.
Given the complexities of the workers’ compensation system, it is usually in the worker’s best interest to have an attorney assist him or her through the process, especially when considering the depth of knowledge and resources available to the employer and insurance company. This is true even if liability for the injury is accepted by the insurance company, because the proper rating of a worker’s permanent disability is often subject to dispute.
[1] Cal. Labor Code § 5402(b)(1)
[2] Cal. Const. Art. XIV, Sec. 4; Labor Code § 3207
5] Hardesty v. McCord & Holdren, Inc., 41 Cal. Comp. Cases 111 (1976)