California workers’ compensation law is a no fault system which means that it doesn’t matter if the injury was your fault or the fault of the employer; benefits are to be provided regardless of the negligence of either the employer or the employee. Workers’ Compensation is the exclusive remedy for an injured worker against the employer except in very limited circumstances. If you are injured on the job you generally have no other remedy against the employer. Workers’ compensation law does not provide for pain and suffering or lost wages (except for temporary disability discussed below) as part of the damages that can be recovered.
California workers’ compensation law requires that the injured worker prove that the injury arose out of and occurred in the course and scope of employment. In the California Workers’ Compensation system, injuries can be either:
(2) Cumulative injury. A cumulative trauma injury is one that occurs over a period of time. Some common examples would be repetitive keyboarding that leads to carpal tunnel, or prolonged lifting which leads to back problems, or prolonged kneeling which leads to knee injuries or continuous exposure to dust which leads to lung disease, or continuous stressful conditions which leads to heart problems. Cumulative injuries must be proved with medical evidence from a doctor.
(3) Psychiatric, mental or emotional injuries are also recognized under California Workers’ Compensation Law , but are extremely difficult to prove. The work stresses must be the predominant cause of the injured worker’s problem and the stress cannot arise out of a “good faith personnel action.” Claims for psychiatric injury are usually denied by employers and insurance companies and the courts consider almost anything an employer does a “good faith personnel action” unless it is outrageous or illegal conduct.
Psychiatric injuries can also result from a specific event such as a bank robbery or a physical assault on the job, or as a result of a specific injury that has resulted in very serious physical disabilities considered to be catastrophic. What is considered catastrophic has not yet been defined by the courts. In any case for psychiatric injury though, the injured worker must have been on the job for at least six months to bring a psychiatric claim at all.
There are four basic benefits under the California Workers’ Compensation Law:
1. Temporary Disability.
Temporary disability (TD) is paid to injured workers when they are unable to work as a result of their work injury and the treating doctor states so. TD benefits can continue until either the injured worker is released to return to work by the treating doctor or until the condition is found by the doctor to be permanent and stationary or to have reached maximum medical improvement. The injured worker may not receive TD for more than 104 weeks within a five year period from the date of injury.
Temporary total disability (TTD) is paid at a rate of two-thirds of the injured worker’s average weekly wage up to a maximum set by law each year. For injuries occurring after January 1, 2019 temporary total disability benefits will increase to $1251.38 a week. In 2018 temporary total disability benefits increased by 3.6% based on the increase in the state average weekly wage but this year the increase in the state average weekly wage was only 2.97%. The maximum TTD benefit will increase to $1,251.38 per week, on Jan. 1, 2019 for all injuries after that date and other injured workers receiving temporary total disability more than two years after their date of injury. This rate will also apply to injured workers who were injured after 2003 and have been declared permanently totally disabled. For those with a life pension benefit (those whose disability is more than 70%), and for installment payments on death claims (which are paid at the temporary disability rate of the decedent) their rate will increase by 2.97%. The minimum TTD benefit will increase to $181.87 from last year’s minimum of $182.29 a week.
For injuries occurring after January 1, 2017 the TTD rate is $1172.57 a week. For 2017 dates of injury the minimum TD rate will be $169.26. For injuries after January 1, 2016 the temporary disability rate is $1248.43 per week and the minimum is $169.26. For injuries after January 1, 2015 the maximum temporary disability rate is $1103.29 a week and the minimum is $165.49 a week. For injuries after January 1, 2014 the maximum temporary disability rate is $1074.64 a week. For injuries after January 1, 2013 the maximum TD rate is $1066.72 a week and the minimum $160 a week. For injuries after January 2012 it is $1010.50 a week maximum and $151.57 minimum.
Permanent and stationary or maximum medical improvement means the worker’s medical condition has stabilized and is not expected to get better or worse. Permanent and stationary does not mean the injured worker no longer needs medical care, only that it has reached a plateau. TTD benefits are often disputed in Workers’ Compensation Law, with employers and insurance companies trying to force the doctor to declare the condition permanent and stationary in order to terminate temporary disability benefits. If your doctor declares you permanent and stationary and you disagree you can request a second opinion. But you may not receive temporary disability benefits more than five years from the date of injury except in extreme cases enumerated in the Labor Code.
2. Medical Treatment.
California Workers’ Compensation Law insures the injured worker all reasonable and necessary medical care to cure or relieve from the effects of a work injury. Unfortunately the treating doctor’s recommendations for medical treatment are frequently denied by the insurance company after the treatment has been reviewed and deemed unnecessary by an outside doctor who has never seen the injured worker– a process known as Utilization Review (UR). In August 2012 Governor Jerry Brown signed a major workers’ compensation reform law, SB 863, which has dramatically impacted the injured worker’s ability to obtain medical treatment. Now all medical treatment denied by UR will be resolved solely by an Independent Medical Review (IMR) Process (an anonymous doctor that the injured worker never sees) with no right of appeal. The IMR process was challenged as violating the California Constitution in the case of Frances Stevens v. Outspoken Enterprises but the Court of Appeal First District disagreed and upheld the constitutionality of IMR.
For treatment of a work injury, the employer or insurer may establish a medical provider network (MPN) to treat work injuries. If your employer has an MPN you must receive treatment for your work related injury through that list of doctors. If you dispute the MPN doctor’s treatment you must obtain a second opinion from within the MPN. If there is no MPN you can select your own treating physician after 30 days from the date of injury. As an injured worker you are entitled to only one treating doctor at a time and this doctor manages your case. The primary treating doctor can refer you to other specialists within the MPN, to help coordinate the treatment you need. In theory medical treatment for a work related injury is a life time benefit as long as the treatment is reasonable and necessary, related to the work injury, and complies with the California Medical Treatment Guidelines (MTUS). At this time any dispute over medical treatment must be decided soley by UR and then IMR. The only time you may have a medical treatment dispute heard by the Workers’ Compensation Judge is when a UR denial is untimely.
3. Permanent Partial Disability.
If you are injured on the job, after you are declared permanent and stationary you will then be evaluated by a doctor to determine whether you have any impairments or permanent disability as a result of your work injury either by a state appointed Qualified Medical Examiner or by your treating doctor, if he or she is willing to provide an impairment rating.
Under California Workers’ Compensation Law the injured worker is not entitled to any benefits or monetary award for pain and suffering.
Permanent disability is determined on a scale from 0% to 100%, with 100% permanent and total disability cases ones that make it impossible for the injured worker to work in any capacity. Workers’ Compensation Law also provides for permanent partial disabilities — those that are below 100%..
Each percentage of disability equals a certain amount of money. The higher the percentage is the higher the amount of money. The percentage of permanent disability is not determined by how extensive or serious the injury was at the time of injury; but at the point of maximum medical improvement.
Once the permanent disability has been established, the injured worker is entitled either to an Award of permanent disability which is paid in weekly amounts with medical care; or what is called a Compromise and Release which is a lump sum payment but with no further medical care paid for by the workers’ compensation insurance company.
The level of permanent disability is usually contested by the insurance companies and this dispute must be resolved by a Qualified Medical Examiner (QME). Disputes as to the nature and extent of permanent disability can be negotiated through a settlement but if negotiation is not possible it will be determined by a workers’ compensation judge after a trial. There are no juries in Workers’ Compensation Law.
4. Vocational Retraining.
For injuries after January 1, 2005 but before 2013 injured workers who cannot return to their usual and customary job will receive a non-transferable voucher of between $4000 and $10,000 payable to a state accredited school chosen by the injured worker. For injuries after January 1, 2013 the voucher is still only payable to a state accredited school but is a flat rate of $6000 and must be used within 2-5 years. After January 1, 2013 the voucher may not be settled by the injured worker for a cash payment. If you are injured after Januar 1, 2013 and your employer does not offer you modified,alternative, or regular work within 60 days of being declared permanent and stationary, you are entitled to apply for a one time payment of $5000 from the State of California Return to Work Fund.
If an injured worker can perform the essential functions of the job he or she may be entitled to a “reasonable accommodation” from the employer which would allow the injured worker to return to his or her regular job with certain accommodations or modifications as long as the accommodations or modifications do not create a “hardship” on the employer.
5. Serious and Willful Misconduct
While Workers’ Compensation Law does not allow the injured worker to sue the employer for negligence, if the injury was caused by the serious and willful misconduct of the employer additional penalties may apply against the employer, of a 50% increase in workers’ compensation benefits. Serious and willful misconduct can be found if the employer had advance notice of a dangerous condition but did nothing to remedy the situation and the employee was injured as a result of the employer’s failure to act on the dangerous condition. Advance notice is usually an important consideration. Serious and willful misconduct may also be found if the employer violates California Safety Orders leading to the work injury, but again, serious and willful misconduct is different and distinct from negligence or even gross negligence on the part of the employer.
6. Death Benefits
If an injured worker dies as the result of a work injury and leaves dependents, those dependents can claim death benefits under Workers’ Compensation Law. The amount of death benefits is determined by the number of dependents and the degree of dependency, as well as whether there are minor children. The standard for death benefits under Workers’ Compensation Law is whether or not the work injury has “caused or hastened the injured worker’s death.” There must be medical evidence to prove the dependent’s claim for death benefits on behalf of the injured worker’s family.