In California, the following workers’ compensation benefits are available: (1) Medical and Hospital benefits; (2) Temporary Disability and Lost Wages; (3) Permanent Disability; (4) Supplemental benefits; and (5) Death benefits.
The employer has an obligation to provide injured workers the medical care that is scientifically proven to cure or relieve the effects of the injury. The medical and hospital benefits are unlimited as to time and amount. Moreover, medical care must be paid for by the employer regardless of whether or not the employee misses any time from work.
Pursuant to California Labor Code section 4600, expenses covered by the benefits include: medical, surgical, chiropractic, acupuncture, and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches and apparatus, including orthotic and prosthetic devices and services. However, the injured worker is limited to twenty-four (24) chiropractic appointments, twenty-four (24) physical therapy appointments, and twenty-four (24) occupational therapy appointments. The claims administrator may provide written authorization for additional appointments.
Medical treatment is subject to the Utilization Review (UR), which is the process required by employers or claims administrators in reviewing the injured worker’s medical treatment to determine if it is “medically necessary.” The treatment must be “reasonably required to cure or relieve” the effects of the injury. The medical care must follow scientifically-based medical treatment guidelines, which in California includes the Medical Treatment Utilization Schedule (MTUS) published by the California Division of Workers’ Compensation. Treatment not in the MTUS may be paid by the claims administrator if it follows other scientifically based guidelines that are generally recognized by the national medical community.
The employer will arrange treatment for the injured worker with the employer’s selected physician or medical facility within the Medical Provider Network (MPN), or with the employee’s pre-designated personal physician or medical group. The employee must have provided the employer with written notification of the name of the pre-designated physician or medical group prior to the date of injury, and the physician must have indicated a willingness to provide treatment in the event of an industrial injury or illness. A DWC Form 9783 may be used to provide notification to the employer and also be signed by the physician evidencing the physician’s agreement to the designation to treat a work injury.
The physician must be provided notice that the treatment is for a work-related injury. It is illegal for a physician or medical facility to bill the worker if there is knowledge that the injury is work-related.
Moreover, the physician must submit reports to the claims administrator describing the nature of the injury, the cause of the injury, the necessary treatment plan, and the type of work that the injured worker is able to perform while recovering from the injury. Generally, the physician and claims administrator must produce copies of these reports to the injured worker upon request.
If there is an issue with the treatment prescribed by the injured worker’s treating doctor, the injured worker’s attorney must send a written letter to the claims administrator stating the disagreement in the doctor’s medical report. The letter must be sent by the attorney within twenty (20) days after receiving the doctor’s report in order to challenge the doctor’s opinion. The injured worker’s attorney and the claims administrator may then agree on a doctor referred to as an Agreed Medical Evaluator (AME). If the attorney and claims administrator cannot reach an agreement, then the attorney or claims administrator may submit a request to the California Division of Workers’ Compensation for a panel list of three (3) Qualified Medical Examiners (QME), which are doctors who are certified by the California Division of Workers’ Compensation to conduct medical evaluations in workers’ compensation cases. The QME or AME will examine the injured worker and write a “medical-legal report.” It is important for the attorney to select the doctor with the appropriate medical specialty to provide a description of the injury, permanent disability rating, the cause of disability, future treatment, and the facts of the dispute. The medical-legal report will affect the benefits available to the injured worker.
If the injured worker cannot return to work while recovering from the injury, the injured worker may receive temporary disability payments for a limited period. The time when the injured worker cannot work is known as the disability period. Temporary disability benefits are payments for lost wages paid to the injured worker while they are recovering from the injury or illness and are unable to return to work. Temporary disability benefits are paid only while the injured worker is recovering.
Essentially, temporary disability benefits are payments to the injured worker if the injured worker loses wages because:
It is the responsibility of the injured worker to inform their employer of the treating physician’s recommendation not to return to work responsibilities. The injured worker has a duty to report the time absent from work. All time off related to the work injury must be reported by the injured worker on the Absence and Additional Time Worked Report Form (STD 634 Form). Temporary disability payments may change or stop when the treating physician reports that the injured worker is able to return to work. A statement from the treating physician is required each time the injured worker is seen regarding the work-related injury. All physician statements must be attached to the STD 634 and be provided to the injured worker’s employment supervisor.
Furthermore, although no time is charged against leave credits on the day of the injury, the injured worker must still submit a STD 634 Form with a notation identifying the date of injury. Generally, Administrative Time Off (ATO) is granted for any time lost on the day of injury.
Before the temporary disability benefits start, the injured worker will serve a waiting period of three (3) days, which do not need to be consecutive. However, the waiting period is waived if the injured worker is hospitalized, the injury was caused by a criminal act of violence, or if the injured worker is disabled for more than fourteen (14) days. Essentially, temporary disability payments are not made for the first three (3) days the injured worker is out of work unless the injured worker is hospitalized overnight or it is determined the injured worker cannot work for more than fourteen (14) days. Pursuant to California Labor Code section 4650, payments must begin within fourteen (14) days of the employer’s knowledge that a work-related injury or illness occurred, unless the employer contests the claim for workers’ compensation benefits. Payments should be made by the claims adjuster within fourteen (14) days of the injury so long as the treating doctor reports that the injury prevents the worker from performing their job. Payments shall then be paid every two weeks so long as the injured worker is eligible. The payments will be made directly from the California State Compensation Insurance Fund.
The State of California offers various types of temporary disability benefit programs under workers’ compensation: Temporary Disability, Industrial Disability Leave, with or without supplementation.
There are two types of temporary disability:
Generally, temporary total disability payments are equal to two-thirds (2/3) of the injured worker’s average weekly gross pre-tax wages at the time of the injury, within minimums and maximums set by state law. The injured worker cannot receive more than a maximum weekly amount or less than a minimum weekly amount as set by law according to date of injury. If the injured worker was earning more than that amount of wages before the injury, the injured worker could receive less than two-thirds (2/3) of that amount. For example, pursuant to the California Department of Industrial Relations, for injuries that occur in 2016 and the injured worker’s gross wages before injury were not more than $1,692.64 per week, the maximum amount of total temporary disability payments will be $1,128.43 per week. For injuries that occur in 2016 and the injured worker’s gross wages before injury were less than $253.89 per week, the minimum amount of total temporary disability payments will be $269.26 per week.
Temporary partial disability payments may be available if the employer offered the injured worker different work that can be done safely while the injured worker recovers. If the injured worker does not earn as much as before the injury, the injured worker may be able to receive temporary partial disability payments. The employer may also provide the injured worker a reduced work schedule. Generally, the payments are two-thirds (2/3) of the injured worker’s lost wages. For example, if the injured worker was making $300.00 per week before the injury, and is now back at work earning $210.00, then the injured worker’s lost wages are $90.00 per week – the temporary partial disability payments will be $60.00 per week. The law sets limit on the maximum and minimum amounts to be paid.
Temporary disability benefits are tax-free – the injured worker does not pay federal, state, or local income taxes on temporary disability payments. In addition, there are no Social Security taxes, union dues, or retirement fund contributions on temporary disability payments. Furthermore, California state employees are permitted to supplement temporary disability payments with accrued leave credits up to the amount of the injured worker’s full pay.
If the injured worker is an active member of the California Public Employees’ Retirement System (CalPERS) or the California State Teachers’ Retirement System (Cal STRS), then the injured worker may receive industrial disability leave (IDL) payments. Industrial disability leave is paid in lieu of temporary disability payments. IDL is a salary continuation program that is significantly better than the standard temporary disability benefit. IDL is available to employees for fifty-two (52) weeks within a two-year period from the first day of disability. IDL payments are based on the injured worker’s full net pay for the first twenty-two (22) working days of disability and thereafter calculated at two-thirds of the injured worker’s gross pay. The injured worker can supplement IDL payments with accrued leave credits up to the amount of their approximate full net pay.
While receiving temporary disability benefits, the injured worker will earn leave credits as if actually working. The injured worker may supplement the temporary disability benefit up to the injured worker’s full net salary with any accrued leave credits. Injured workers who have sufficient leave credits can supplement the temporary disability payments, but the temporary disability payments plus the supplemental check cannot be more than the injured worker’s net salary.
Leave credits needed for supplementation will be drawn in the following order: (1) sick leave, (2) compensated time off, (3) vacation or annual leave, (4) and other leave credits. The injured worker may specify a different order. The amount of leave credits necessary to supplement the temporary disability payments depends on many variables including the injured worker’s monthly salary, the number of days on temporary disability, the number of days in the pay period, and other pay that the injured worker receives during the pay period.
Temporary disability payments are issued by the California State Compensation Insurance Fund and sent directly to the injured employee. Temporary disability payments have no mandatory or voluntary deductions withheld. On the other hand, the supplementation payments are issued by the California State Controller’s Office. The supplementation payments are paid by the injured worker’s employer and are subject to all mandatory deductions including taxes, retirement contributions, garnishments, and union dues. Voluntary deductions, such as health, dental, and vision benefits or life insurance, may also be withheld. However, deductions can only be made so long as there are sufficient leave credits. Mandatory deductions will have priority over voluntary deductions. Nonetheless, the injured employee is entitled to the continuation of health, dental, and vision benefits even if the injured worker chooses not to supplement the temporary disability payments.
Temporary disability payments will end once the injured worker’s treating physician reports that the patient can return to the usual job, regardless of whether the worker in fact returns or not. Temporary disability payments will also end once the injured worker returns to the usual job or to modified or alternate work at the worker’s regular wages or wages associated with the maximum limit of temporary total disability payments. Furthermore, temporary disability payments will end if the treating physician reports that the injured worker’s condition is “permanent and stationary,” which means that the injured worker is not improving and not getting worse.
If the injured worker’s treating physician reports that the patient will never recover completely, then the injured worker may receive permanent disability benefits or a supplemental job displacement benefit.
Permanent disability benefits are recoverable when the injured worker cannot recover completely or the injury causes a permanent loss of physical or mental functions as measured by a doctor. Payment for permanent disability will be provided if the treating doctor reports that the injured worker will always be limited in the work that the injured worker can perform. The amount of permanent disability payments will depend on the type of injury, date of injury, the medical condition as described in the Permanent and Stationary Report or in a Medical-Legal Report, the extent of impairment, the injured worker’s age, occupation, and wages before the injury, the apportionment of how much the disability was caused by the job as compared to other factors, and a multiplication by an adjustment factor (i.e. if the injury occurred in 2013 or later, the adjustment factor is 1.4).
Generally, the injured worker’s primary treating physician will be a Qualified Medical Examiners (QME), which are doctors who are certified by the California Division of Workers’ Compensation to conduct medical evaluations in workers’ compensation cases. The primary treating physician must report that the injured worker is “Permanent and Stationary” (P&S). This means that the injured worker’s condition has stabilized and will not get better or worse. The injured worker has then reached maximal medical improvement (MMI). The P&S report must describe the lasting effect of the industrial injury or illness. The P&S report should describe: the injured worker’s specific medical problems, the injured worker’s “work restrictions” (i.e. the limits on the work that the patient can perform), the injured worker’s necessary future medical care, whether the injured worker may return to their old job, and an estimate of how much the injured worker’s disability is caused by the job as compared to other factors. It is important for the injured worker to actively communicate with the primary treating physician, the employer, and the claims administrator about: (1) the work the injured worker did before the injury; (2) the injured worker’s medical condition and the type of work that the injured worker can now perform; and (3) the type of work that the employer could make available to the injured worker.
Essentially, the P&S report must rate the injured worker’s impairment, which is how much the injured worker has lost the normal use of the injured body parts at issue. The physician must follow the guidelines published by the American Medical Association (AMA) when making the rating. In addition, a disability rater may be requested to make a rating based on the P&S report. The primary treating physician must then submit the P&S report to the claims administrator.
The Disability Evaluation Unit of the Division of Workers’ Compensation will then determine the injured worker’s “permanent disability rating.” The Disability Rating Determination describes the injured worker’s percentage of disability based off of the Schedule for Rating Permanent Disabilities. A rating of 100% means that the injured worker has a permanent total disability, which is very rare. If the rating is between 1% and 99%, then the injured worker has a permanent partial disability. Generally, the ratings are between 5% to 30%. The benefits are set by law and will not be reduced by any of the injured worker’s other income. The injured worker is entitled to permanent disability payments even if the injured worker returns to work. However, unlike temporary disability payments, the permanent disability payments may not be supplemented with leave credits.
The injured worker has the right to request in writing to the claims administrator or treating physician to obtain a copy of the P&S report and all medical records. If there is a disagreement with the P&S report, the injured worker may challenge the report by submitting a letter to the claims administrator within twenty (20) days after receiving the report. If the letter is not sent timely, the injured worker risks losing the right to challenge the report. Furthermore, the injured worker’s attorney may negotiate with the claims administrator the correct rating of the disability. If the parties cannot agree on a rating, the matter can be submitted to the workers’ compensation judge to make a decision.
If the injured worker is determined to have a permanent partial disability, the injured worker will receive the total amount of the permanent disability benefits over a fixed number of weeks. If the injured worker is determined to have permanent total disability, the injured worker will receive the permanent disability payments for the rest of the injured worker’s life. The permanent disability payments will commence within fourteen (14) days after the final temporary disability payment. If the injured worker was not receiving temporary disability payments, then the first permanent disability payment will commence within fourteen (14) days after the claims administrator is notified of the permanent disability. The permanent disability payments will then be made every fourteen (14) days. However, if the employer offers the injured worker employment that pays at least 85% of the wages and benefits, or if the injured worker obtains employment that pays at least 100% of the wages and benefits, then the permanent disability payments must be approved by a workers’ compensation judge. The permanent disability payments will end when the injured worker reaches the maximum amount allowed by law or the workers’ compensation case reaches a lump sum settlement. Generally, the lump sum settlement will be reduced by the amount of permanent disability benefits that were already received.
It is common that once the injured worker’s disability is rated, a settlement of the workers’ compensation case may be negotiated. If a settlement is reached, a worker’s compensation judge must review it to determine its fairness. If no settlement can be reached, the case can be presented to a workers’ compensation judge to give a Findings and Award which decides what benefits the injured worker will receive. To settle the case, the injured worker and the claims administrator may enter into stipulations concerning the amount of payments, medical care, and future changes. For example, it will be stipulated that the injured worker is to receive a certain amount of permanent disability payments for a certain amount of time. In addition, it will be stipulated that the claims administrator will continue to pay for the injured worker’s medical care as long as necessary. It can also be stipulated that if the injured worker’s condition worsens, then the injured worker has the right to request an additional increase in workers’ compensation benefits. Meanwhile, if the condition improves, the claims administrator may then also request that the benefits are lessened. Alternative to stipulations, the injured worker may enter into a Compromise and Release, which will include a one-time lump sum payment that will include payment for the permanent disability benefits not yet received. The claims administrator will no longer pay for the injured worker’s medical care. Instead, medical payments will be the responsibility of the injured worker. There will also be no right to request an increase in benefits if the injured worker’s condition worsens in the future.
If the injured worker is determined to have a permanent disability, the injured worker may also be eligible to receive medical care for the injury, a supplemental job displacement benefit, and Social Security disability benefits and other benefits that may be offered by the employer or union.
Supplemental Job Displacement Benefits may be available to help pay for retraining or skill enhancement if: (1) the worker qualifies for permanent disability, (2) the employer does not offer the worker their job back, or (3) the worker does not return to their former employer. The injured worker must have at least a permanent partial disability and is awarded regardless of the injured worker’s permanent disability rating. Furthermore, in order to obtain the Supplemental Job Displacement Benefit, the employer must not have offered the injured worker any regular, modified, or alternative work within sixty (60) days after the claims administrator received the Form DWC-AD 10133.36 Physician’s Return-to-Work and Voucher Report. The claims administrator must offer the voucher to the injured worker within twenty (20) days from the last date the employer may offer regular, modified, or alternative work.
The claims administrator will send the voucher by the Form DWC-AD 10133.32 Supplemental Job Displacement Non-Transferable Voucher. The voucher is redeemable for up to $6,000.00 and cannot be redeemed as part of any settlement.
The Supplemental Job Displacement Benefit is a voucher that serves as a promise to pay for the educational retraining and skill enhancement offered by eligible schools, which includes California public schools or a provider listed on the California Employment Development Department’s Eligible Training Provider List (ETPL). The voucher will pay for the tuition, fees, books, supplies, tools, and other related expenses. The voucher will also pay the fees for professional licenses, certification, exam preparation courses, and exam testing. The injured worker should contact an Information and Assistance Officer at the Division of Workers’ Compensation to obtain a list of qualified vocational and return-to-work counselors. The injured worker must submit the voucher to the school or counselor, which will then receive payment directly from the claims administrator. If the injured worker personally pays for the services, the receipts and the signed voucher must be submitted to the claims administrator within forty-five (45) days of paying the bill in order to receive reimbursement. The voucher will expire the later of two (2) years after being issued or five (5) years from the date of injury. All expenses and receipts must be submitted before the expiration.
The goal of the workers’ compensation program is to help the injured worker avoid financial losses from being off work. The treating doctor will submit a Physician’s Return-to-Work and Voucher Report. If the treating doctor reports that the injured worker is able to work, the doctor should report the “work restrictions” which are the clear and specific limits on the job tasks while the injured worker is recovering so as to protect the injured worker from further injury. The doctor should also report any necessary changes to the injured worker’s schedule, assignments, equipment, or work conditions while recovering.
If the employer offers the injured worker employment after the injury, the claims administrator must send the injured worker the Form DWC-AD 10133.35, entitled Notice of Offer of Regular, Modified, or Alternative Work. The claims administrator must send the Notice within sixty (60) days after learning that the injured worker’s permanent partial disability has become “Permanent and Stationary.” The employment must comply with the work restrictions in the doctor’s report, last at least twelve (12) months, and be within a reasonable commuting distance. The type of employment may be regular, modified, or alternative. “Regular work” must include the injured worker’s usual job position at the time of injury and pay the same wages and benefits that were paid at the time of the injury. “Modified work” includes the injured worker’s old job with compliant work restrictions and must pay at least eighty-five percent (85%) of the wages and benefits that were paid at the time of the injury. For example, compliant work restrictions may include: changing certain job tasks, time required on certain tasks, workstation environment, equipment, and location. “Alternative work” includes different work from the old job position and is compliant with work restrictions. Alternative work must pay at least eighty-five percent (85%) of the wages and benefits that were paid at the time of injury.
Once the Notice of Offer of Work is made, the injured worker has thirty (30) days to accept the offer. After that time period, the employer has the right to withdraw the offer. Moreover, if the employer makes an offer of work, the claims administrator is then not required to provide the injured worker a Supplemental Job Displacement Benefit regardless of whether the injured worker accepts or rejects the offer.
If the employer does not make an offer of modified or alternative work and the injured worker is reported to have permanent partial disability, then the claims administrator is required to provide a Supplement Job Displacement Benefit, which is essentially a voucher. In addition, the California Department of Industrial Relations administers the Return-to-Work Supplement Program (RTWSP), which is a one-time $5,000.00 payment to workers who have received the voucher and still experience a disproportionate loss of earnings. The supplemental payment is made to workers whose permanent disability benefits are disproportionately low in comparison to their earnings losses. The application for the one-time payment must be submitted to the RTWSP within one (1) year from when the voucher was sent to the injured worker. If the injured worker disagrees with the eligibility determination, the injured worker may appeal to the Workers’ Compensation Appeals Board (WCAB) within twenty (20) days. The injured worker must file a Petition for Reconsideration and serve a copy on the RTWSP (address 1515 Clay Street, 17th Floor, Oakland, CA 94612).
If the job-related injury or illness causes death, payments may be made to the deceased worker’s spouse, children, and other relatives or household members who were totally or partially financially dependent on the deceased worker. The amount of the payment is determined by the number of eligible dependents: $250,000 for one total dependent, $290,000 for two total dependents, and $320,000 for three or more total dependents. If there is one or more totally dependent minors, after payment of the amounts specified, death benefits will still continue until youngest minor’s 18th birthday. Disabled minors will receive benefits for their entire life. Death benefits are paid at the total temporary disability rate, but not less than $224.00 per week. If the death occurs within one (1) year from the date of injury, application for death benefits must be submitted: within one (1) year from date of death; or within one (1) year from the date the last benefit was furnished to the deceased worker; or within one (1) year from the date of death which occurred more than one (1) year from the date of injury. Application for death benefits may not be submitted more than 240 weeks from the date of injury.
In addition, reasonable burial expenses are also paid, not exceeding $10,000.00.
A “compensable consequence” is a new health problem that is caused by the original injury. In this situation, the injured worker is entitled to the same medical coverage and disability benefits provided by workers’ compensation as the injured worker was receiving for the first original injury. The injured worker is entitled to all benefits for the consequences of the work-related injury. Examples of compensable consequences may include: a subsequent fractured wrist caused by a fall that was a result of an injured knee from a work related incident; injury from an automobile accident while traveling to a doctor’s appointment for a work-related injury; injury from medical malpractice committed during the treatment of a work-related injury; or a back injury caused by a limp compensating for a work-related injury to the knee or ankle.
In addition to workers’ compensation benefits, there is other possible financial assistance available to an injured worker. For example, State Disability Insurance (SDI) and Unemployment Insurance (UI) benefits from the Employment Development Department may be paid when the workers’ compensation benefits are delayed or denied. It is good practice to file a claim for SDI or UI benefits if the worker is not able to work the job. This serves as a precaution in case there may be issues in the workers’ compensation claim. The Employment Development Department should be notified of the workers’ compensation claim.
The United States Social Security Administration (SSA) will also pay for Social Security disability benefits for total disability. The amount of the benefits may be reduced by the workers’ compensation payments received.
In addition, many employers and unions offer benefits such as sick leave, group health insurance, long-term disability insurance, and salary continuation plans.
The injured worker may also have a third party liability claim in cases where the injury was caused by a party other than the employer.
It is important to note, if the employer does not offer the injured worker the employment position desired due to the fact that the worker experienced a job-related injury or because the injured worker requested workers’ compensation, then the employer may be in violation of California Labor Code section 132a for employment discrimination.
In addition, if the employer denies the worker the desired employment position because of the fact that the worker has a serious and permanent disability despite the capability of performing the job with reasonable accommodation, then the employer may be in violation of the federal Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA).