Frequently Asked Questions

We've posted information relating to the most frequently asked questions in regard to California Workers Compensation Law. Please contact us regarding the issues of your particular workers compensation case. We are here to help injured workers and injury victims.

Should I retain an attorney?

Medical Treatment

Temporary Total Disability Benefits

Permanent Disability Benefits

What if my claim is denied?

Can I continue to work if I file a workers' compensation claim?

What types of settlements are available?

Can I receive medical treatment if I have been released by my doctor?

Do I have a possible personal injury claim from my work injury?

Should I retain an attorney?

An injured worker has the option of representing himself/herself in reference to their work related injury. The only advantage is that the applicant avoids paying an attorneys fee by handling the case on their own.

The negative aspects of self representation is the fact that the insurance carrier has knowledgeable and experienced adjusters who will use the numerous and technical procedural requirements to deny or delay benefits to an injured worker. Governor Arnold Schwarzenegger recently made substantial changes to the workers compensation system all of which are detrimental to injured workers. Mistakes made in handling a case by an injured worker are frequently irreversible by an attorney at a later date. There are many time deadlines and procedural pitfalls that can jeopardize benefits or result in a complete denial of benefits.

A knowledgeable and experienced attorney can guide the injured worker through the procedural pitfalls to properly secure needed medical treatment, temporary disability payments and an award of adequate permanent disability at the conclusion of the case.

Medical Treatment

An injured worker is entitled to all reasonably necessary medical treatment to cure him/her from the affects of any and all work related injuries. The obligation of the employer to provide needed medical treatment arises when the injury is properly reported to the employer.

For injuries occurring since 2005 the employer controls medical treatment. The injured worker is required to select a treating physician from the medical provider network established by the employer and/or insurance carrier. The treating doctor is very important and generally controls all medical treatment received.

The injured worker can switch treating doctors as long as the new treating physician is selected from the medical provider network. Additionally, in a serious injury case the applicant is entitled to a second opinion.

Once the injured worker is released from further treatment by the primary treating doctor, a new treating doctor cannot be selected. Any treatment furnished by another doctor would probably be considered self-procured treatment and the insurance carrier would not be obligated to pay for that treatment.

Temporary Total Disability Benefits

If medically certified, the injured worker is entitled to Temporary Total Disability Benefits payable at the legal rate, bi-weekly, which is dependant on the average weekly earnings on the date of your injury. In computing your average gross weekly earnings, the amount you earn from a second or third job can be considered in determining your temporary disability rate.

The temporary disability rate is two-thirds of the injured worker's average weekly earnings. The maximum weekly rate for injuries varies from $881.66 for injuries occurring in 2007 all the way down to $196.00 for injuries occurring in 1983.

Labor Code Section 4656 limits temporary total disability payments to a maximum of 104 compensable weeks within a period of two years from the date of commencement of temporary disability payments. This law was implemented by Schwarzenegger in 2004.

The treating physician must certify that you are temporarily totally disabled in order to receive temporary total disability benefits from the carrier.

Temporary total disability benefits (subject to the limitation of two years of payments) are paid until the injured worker returns to work, is declared permanent and stationary, goes to work at a new job, retires from the work force or enters a vocational rehabilitation program.

Permanent Disability Benefits

Permanent disability has been defined as a disability which causes impairment of earning capacity, impairment of the normal use of a member (an arm or a leg), or a competitive handicap in the open labor market. It generally means that the injured worker has sustained a permanent diminished ability to compete in the open labor market.

If you have permanent disability, you will be entitled to permanent disability payments based on the percentage of disability you have sustained.

If an injured worker is deemed to be 100% totally disabled, then the worker will receive the temporary total disability rate for life.

For less than 100% disability the maximum rate for injuries occurring in the year 2006 is between $230.00 and $270.00. The rates are less for injuries occurring in prior years. The permanent partial disability payable is based on the percentage of disability the injured worker has sustained. Payments are made biweekly at the rates set forth in the Labor Code.

Permanent disability benefits begin when the doctors find that the injured worker's condition has medically stabilized or become what they call permanent and stationary or has reached maximum medical improvement.

For injuries occurring since 2005, the permanent disability will be based on the treating doctors opinion or possibly a Qualified Medical Examiner or an Agreed Medical Examiner who has examined the injured worker. Access to medical examinations has been severely restricted by Arnold Schwarzenegger's administration.

Unless settled by agreement, disputes between the doctors' opinions on permanent disability are decided at trial.

It is important to realize that an injured worker is not entitled to any money for temporary pain, suffering or discomfort, nor is the injured worker entitled to reimbursement for loss of wages. In a work-related injury, the injured worker is entitled to receive permanent disability benefits, temporary disability benefits and reasonable medical treatment.

What if my claim is denied?

The insurance carrier can put your claim on a ninety-day delay in order to investigate your injury. If your claim is denied, you will have the burden of establishing that the injury arose out of and occurred during the course of your employment.

The carrier may claim that you were an independent contractor, or that your injury was not caused by your employment, or that the injury preexisted your employment.

If your injury is denied, you should file for State Disability Benefits immediately. You will need medical certification to qualify.

If your injury is denied, then your claim will have a one-year statute of limitations. This means that you must file an Application for Adjudication of Claim with the appropriate Workers' Compensation Appeals Board within one-year of the date of your injury or your claim will be barred.

Can I continue to work if I file a workers' compensation claim?

The fact that you are working or have been returned to work does not affect your right to pursue permanent disability or further medical treatment.

Many injured workers return to the same job, although they have permanent disability to which they are entitled. The insurance Carrier does not always pay the permanent disability to which the injured worker is entitled according to the medical opinion of the doctors involved in the case.

Do not confuse the ability to work with the right to receive permanent disability benefits for an injury or the right to continuing medical treatment.

What types of settlements are available?

A workers' compensation case can be settled in one of three different ways.

First, the case can go to trial, in which case the judge makes a decision on all relevant issues. The judge will issue a Findings and Award.

Secondly, a case can be settled by way of a Compromise and Release, which is a full and final release of any and all claims. A Compromise and Release would terminate the liability of the insurance company for all benefits, with the possible exception of vocational rehabilitation benefits. This is a lump sum settlement. It forever settles any entitlement to further medical treatment.

Thirdly, a case can be settled by way of a Stipulation with a Request for Award. With a stipulation, payments for permanent disability are made bi-weekly and the injured worker will probably receive future medical treatment.

With a Stipulation with Request for Award the parties are agreeing to a certain level of permanent disability. The judge will decide whether the injured worker is entitled to future medical treatment based on the medical evidence in the case. If you are awarded further medical treatment you will be entitled to all reasonably and necessary treatment for the specified parts of the body injured for the balance of your life. The injured worker would also have the right to petition to reopen the case should the worker sustain new and further disability at any time within five years of the date of injury.

Can I receive medical treatment if I have been released by my doctor?

If you have been released from treatment by your primary treating doctor, you have no further right to treatment. You will either have to convince your primary treating doctor to reinstate medical treatment or you must go to a Qualified Medical Examiner to secure an opinion on the medical treatment issue. If the Qualified Medical Examiner, or QME, believes that you should receive additional medical treatment, the issue can be brought to trial for a decision by a workers' compensation judge.

Do I have a possible personal injury claim from my work injury?

The Labor Code precludes an injured worker from suing their employer for an injury caused due to the negligence of the employer in most situations. If the employer is willfully uninsured, the injured worker has the option of suing the employer in civil court and/or pursuing a workers' compensation claim against the uninsured employer.

In many situations the injured worker has a personal injury or products liability claim against a person or entity other than the employer. For instance, if the injured worker sustains an injury while operating a motor vehicle, when the accident is caused by another party. Many construction accidents involve negligence by an entity other than the workers employer. Injuries involving products often give rise to products liability claims that the injured worker can pursue against other companies.

If your claim is against a governmental entity, there is a requirement that you file a formal written claim with the appropriate governmental entity within six months of the date of injury. If you fail to file a written claim within this time period, it is likely that your claim would thereafter be barred.

It is important that an injured worker get knowledgeable and experienced advice on possible collateral remedies such as personal injury or products liability claims. There is generally a two-year statute of limitations in the State of California on personal injury or products liability claims occurring since the year 2003. It is important that an injured worker contact an attorney as soon as possible to secure advice on any statutory issues and to preserve evidence necessary to pursue any collateral remedies.

Our firm handles serious personal injury claims and wrongful death actions.