Frequently Asked Questions

Do I Need An Attorney/When Should I Retain An Attorney?

It may be in your best interest to retain an attorney to secure your entitlement to workers’ compensation benefits if you experience any of the following:

  • If you are concerned about whether you are receiving benefits as required by law. If benefits are being denied or delayed by the insurance carrier. If you have sent paperwork to the insurance carrier and they keep “losing” your paperwork.
  • If your employer will NOT allow you to return to work.
  • If you receive forms in the mail that you do not understand. If the insurance carrier asks you to select a Panel Qualified Medical Evaluator (PQME).
  • If the claims examiner/adjuster offers to “help” you complete any forms.

What Is The Workers’ Compensation Benefits Legal Process?

The Life of a Claim at Our Office:

When you retain our office, we will file a formal claim with the Workers’ Compensation Appeals Board (WCAB), sending a copy to your insurance carrier. This claim will be assigned a case number by the Board and then no further action will be taken by the WCAB until one of the parties indicates it is ready to proceed to hearing.

After your file is opened, we will obtain your medical records from the insurance company informally, or if necessary, by court order. Upon receipt of your records, which usually takes between 45 to 60 days, we will conduct an investigation into the events surrounding your injury. We will then monitor your case to determine when your condition becomes permanent and stationary and begin negotiations for settlement. If we are unable to settle your case, we will file the necessary documents to set your case for trial.

Please note that while our office will negotiate with your employer’s insurance company, we will not settle your case unless we have your full authorization. You will be advised of settlement negotiations along with our evaluation of your claim, so that you will be able to make an informed decision regarding resolution of your case.

Key Terms:

Claim: assertion that an injury arose out of an in the course of employment Workers’ Compensation Appeals Board (WCAB): the court for all industrial injuries. The WCAB carries out administrative law hearings and there is no right to trial by jury. If your case goes to trial, the Workers’ Compensation Judge makes all the decisions.

Medical-Legal Evaluator: a Qualified Medical Evaluator or Agreed Medical Evaluator utilized to conduct medical examinations and provide medical opinions that determine medical treatment, temporary disability, and permanent disability.

Primary Treating Physician: the physician who provides regular medical treatment. This physician must be authorized by the insurance carrier.

Permanent & Stationary/Maximum Medical Improvement: the point at which your condition will remain unchanged with or without further medical treatment.

Settlement: a legally-binding resolution of your workers’ compensation case.

    • Compromise & Release Agreement: a settlement option that results in a lump sum award and restricts you from re-opening your case if new disability arises from the same injury.
    • Stipulations with Request for Award: a settlement option that results in a small monetary award and “open” access to future medical care (related to your injury) provided by the insurance carrier.

How Much Does An Attorney Cost?

Attorney fees are set by the Workers’ Compensation Appeals Board and are usually 12% to 15% of your award or settlement. Our fee is 15% and we do not charge a retainer fee. We are also entitled to a similar fee for representing you in any additional penalty actions against the insurance company. If you do not recover any benefits, you will not be charged any attorney fees.

What Benefits Am I Entitled To?

Medical Treatment

You are entitled to reasonable and necessary medical care to cure or relieve the effects of your industrial injury. The medical treatment must be paid for by your employer or its workers’ compensation insurance carrier. Under the law, the employer or their insurance company controls medical treatment (choice of doctor and treatment) for at least the first 30 days following your injury. After 30 days, you are entitled to select a physician of your choice; however, the physician must be a member of the employer’s Medical Provider Network (MPN). If you wish to change your physician, please let our office know before you begin treating with a different physician, as treating with an unauthorized physician may adversely affect your case.

If the workers compensation insurance carrier denies your case, your private medical insurance may be used to pay the medical bills. If this situation occurs, contact our office immediately as we may need to make arrangements to ensure treatment is provided.

Temporary Disability

Temporary Disability is the benefit paid to you during the time your physician says you are completely unable to work, due to your injury. The benefit rate is two-thirds (2/3) of your average weekly earnings, up to a maximum weekly rate of $1,074.64. It normally takes about two (2) weeks before the first payment is sent. In some unusual cases, it is possible to obtain supplemental benefits from the State of California Employment Development Department (EDD), also known as State Disability Insurance (SDI). However, generally, you may not receive temporary disability benefits from both the workers’ compensation insurance company and EDD.

SDI is a backup benefit source if the workers’ compensation insurance company will not pay temporary disability benefits. These benefits are available by applying through the Employment Development Department. If you apply for such benefits, it is important that you advise EDD that you have applied for workers‘ compensation benefits and your request has been delayed or denied. The SDI application must be completed by you and your doctor. Benefits normally start within seven (7) to fourteen (14) days from application.

Click on the following link to learn more about State Disability Insurance:

http://www.edd.ca.gov/disability

Permanent Disability

Permanent disability is the benefit paid if you are determined to have some percentage of residual disability. Permanent disability benefits are not payable until your medical condition has stabilized. It is the doctors involved in your case who make the determination of whether your condition has stabilized and this is called reaching a permanent and stationary status. What this means is that your condition has leveled off and the doctor believes your condition will stay substantially the same in the future. You should understand that a finding of permanent and stationary status does not mean that you have fully recovered from your injury, but rather have reached maximum medical improvement.

Supplemental Job Displacement Benefits (SJDB Voucher)

Employees who are permanently unable to do their usual job, and whose employer does not offer other work, may also qualify for the SJDB voucher. The voucher amount is $6000 for all permanent disability ratings and can be used for training at a California public school or any other provider listed on the state’s eligible training provider list. It can also be used to pay licensing or certification and testing fees, to purchase tools required by a training course, to purchase computer equipment of up to $1,000 and to reimburse up to $500 in miscellaneous expenses. Up to 10 percent, or $600 may be used to pay for the services of a licensed placement agency or vocational counselor. No more than 10 percent of the value of the voucher can be used for vocational & return to work counseling.

Click on the following link for more detailed information about the voucher:

http://www.dir.ca.gov/dwc/sidb/SJDB_FAQ.html

Information Extracted from the Department of Industrial Relations Website at:

http://www.dir.ca.gov/dwc/sidb/SJDB_FAQ.html

What Is A Medical Provider Network (MPN)?

A medical provider network (MPN) is an entity or group of health care providers set up by an insurer or self-insured employer and approved by DWC’s administrative director to treat workers injured on the job. Under state regulations, each MPN must include a mix of doctors specializing in work-related injuries and doctors with expertise in general areas of medicine. MPNs are required to meet access to care standards for common occupational injuries and work-related illnesses. The regulations also require MPNs to follow all medical treatment guidelines established by the DWC and allow employees a choice of provider(s) in the network after their first visit. Additionally, MPNs must offer an opportunity for second and third opinions if the injured worker disagrees with the diagnosis or treatment offered by the treating physician. If a disagreement still exists after the second and third opinion, an injured worker in the MPN may request an independent medical review (IMR). The MPN program became effective Jan. 1, 2005 and employees can be covered by an MPN once a plan has been approved by the DWC administrative director.

For more detailed information about MPNs, click on the following link:

http://www.dir.ca.gov/dwc/mpn/dwc_mpn_main.html

Information Extracted from the Department of Industrial Relations Website at:

http://www.dir.ca.gov/dwc/mpn/dwc_mpn_main.html

Do I Have To Pay For Expenses Related To My Claim?

The insurance carrier is required to provide you with transportation expenses for all travel to your doctor(s), physical therapist(s), pharmacy, laboratories, etc. In your client folder we have enclosed several Medical Mileage Expense forms to help you keep an accurate record of these expenses. You need to keep your log of mileage, parking and bridge toll costs on these forms to submit periodically for reimbursement. However, if you need an additional Medical Mileage Expense form, click on the following link to download and print more copies:

http://www.dir.ca.gov/dwc/WorkerscompensationBenefits.htm

While you are entitled to reimbursement for transportation costs related to your medical treatment, the law unfortunately does not allow reimbursement for transportation costs related to the legal processing of your claim(s). Therefore, you should not include mileage, parking and bridge toll costs, which arise due to visits to our office (except for a deposition) or to the Workers’ Compensation Appeals Board.

In some circumstances, it may be necessary for you to advance payment for medical needs like the purchase of medications or medical aides such as a cane, brace, hot packs, etc. We would ask that you avoid advancing costs if at all possible unless the treatment need is urgent. If you must advance a cost, please keep receipts and record these expenses. If your injury claim is denied or delayed by the insurance carrier, you may need to obtain medical treatment on your own or through your private health insurance while your workers’ compensation claim is in dispute. Keep copies of all billings, insurance statements, receipts, co-payments, etc. This information may then be submitted for reimbursement once your claim is accepted.

You should submit the Medical Mileage Expense forms directly to your insurance carrier; but please do not do so without making a copy of the form and your attached documentation for your records. This is critical, as without a dated copy you have no proof that the material was submitted. If you are unable to make copies of your paperwork, please stop by our office and we will make copies for you.

Insurance carriers are allowed 60 days from submission of your expense forms to reimburse the expenses. If you have not received your reimbursement within this time period please let us know and we will follow up and file a Petition for Penalty if the delay has been unreasonable. Please understand that we cannot prove that you are entitled to reimbursement for any medical expenses if your primary treating physician has not prescribed the treatment. Likewise, we will not be successful on your behalf if you have not saved the receipts and documentation we need to prove what expenses you have advanced. Unfortunately, if you have not documented your expenses, we will not be able to assure that you are correctly reimbursed.

If you have any questions or concerns or you need additional forms, please do not hesitate to contact our office.

Please understand that the submission of mileage for reimbursement is under penalty of perjury. We will not review or correct any calculations, thus please be careful when assessing your figures. If an error occurs, it may cause months of delay until the issue is resolved.

What If The Insurance Company Is Not Authorizing My Treatment?

Request for Authorization (RFA) Form

Recent legislative changes now require medical treatment authorization to follow a new process. A treating physician must request medical treatment using the “Request for Authorization” (RFA) form. If the treating physician fails to use the RFA form, then the insurance carrier may deny the medical treatment.

If your treating physician needs a copy of the RFA form, please click on the on the following link to download and print one for his/her use:

http://www.dir.ca.gov/dwc/DWCPropRegs/IMR/IMRFormRFAClean.pdf

Independent Medical Review (IMR)

In addition to the RFA form, there is new procedure for addressing medical treatment disputes. If the treating physician correctly submits the RFA form and necessary information, the insurance carrier may conduct Utilization Review before authorizing the request medical treatment. If Utilization Review recommends a denial, delay, or modification of medical treatment, then the injured worker is entitled to apply for Independent Medical Review (IMR) by a company named Maximus, in order to obtain an objective opinion regarding the appropriateness of the requested treatment and Utilization Review determination. The IMR application and relevant medical documents are reviewed by an anonymous panel of physicians who issue a final decision; once the IMR decision is issued, the injured worker or the insurance company may appeal the decision only in very limited circumstances.

How Do These Changes Affect Me?

    • As a client of our firm, we will assist you with the IMR process and complete the IMR application for you if you decide to challenge the Utilization Review determination.
    • The IMR process is extremely technical and time sensitive, so please contact our office immediately following receipt of an adverse Utilization Review determination or a letter from Maximus.
    • For more detailed information about IMR, click on the following link: https://www.dir.ca.gov/dwc/IMR.htm

What Do I Need To Know About Medical Legal Evaluations?

When your primary treating physician indicates that your condition has reached Permanent and Stationary/Maximum Medical Improvement status or a treatment dispute arises with the insurance company, you may be required to attend a medical evaluation. The purpose of such an evaluation is to determine your medical condition. These evaluations may be scheduled by our office or your employer’s insurance carrier. Also, at our discretion, this office may agree with your employer’s insurance company on one physician to examine you. This type of examination is called an Agreed Medical Evaluation (AME) and the parties are bound by the doctor’s medical opinion. The AME procedure is favored by Workers’ Compensation Judges, as it expedites the settlement process.

When a medical appointment is made for you by the insurance carrier or this office, you must attend. You will be charged for any appointment that you miss, even if you notify the evaluator prior to your evaluation. The “missed appointment” or “no show” fee can reach up to $600 and the fee will be deducted from your final settlement award. You will be given sufficient notice by mail of any medical appointments. After your primary treating physician, consulting physician, or medical-legal evaluator examines you, a detailed report regarding the nature and extent of your disability will be sent to our office. We usually receive a copy of the medical report within 4-8 weeks of your examination/evaluation.

Your case cannot be settled until all of the medical reports are provided to both our office and your employer’s insurance company. The reports will be rated, which is a procedure where the report is assigned a percentage of disability. The rating process is set by law and the disability percentages are outlined by the State of California. Once a percentage of disability is obtained, this figure is then converted into a monetary figure. Please note that the monetary figures are based solely on loss of work ability. Your settlement value will NOT compensate you for pain and suffering, lost wages, or cost and time involved in medical treatment. If you wish to legally pursue these issues, please consult our office for a referral.

Our Advice: Medical examinations/evaluations are the most important aspects of your case that are under your control. The successful, expedient resolution of your case is entirely dependent upon your cooperation in attending all scheduled appointments. Also, developing positive relationships with all of your physicians is beneficial to your recovery and resolution of your case.

How Does Settlement Work?

There are two settlement options in Workers’ Compensation. The parties may agree to either Stipulations with Request for Award or Compromise & Release Agreement. Please note that if you are still working for the same employer, you Stipulations With Request for Award may be the only option available to you. Also, the insurance company is not obligated to offer you a Compromise & Release Agreement, even if you prefer a lump sum settlement. Please remember that the attorney fee is deducted from the settlement award. The settlement options are summarized below:

Stipulations with Request for Award

With this type of settlement, you will receive from $140 up to a maximum of $230 per week until your settlement amount has been reached. For example, if your rate is $170 per week and your settlement was for $1,700, you would receive $170 for ten weeks ($170 x 10 = $1700). The advantage of this type of settlement is that you will keep your right for future medical treatment paid for by the insurance carrier for the rest of your life. Keep in mind that future treatment may be contested by the insurance carrier. The carrier will only cover treatment outlined by the physicians in your claim. In other words, this is not like free health insurance for you and your family, just insurance for your injury from this claim. If you are receiving Social Security Disability (SSDI) or Medicare benefits, your benefits may be reduced due to the settlement.

Compromise & Release Agreement

With this type of settlement, you would receive the amount you would get with Stipulations with Request for Award, but you would also get additional money on top of this amount in exchange for paying for all future medical treatment out of your own pocket. The advantage of this type of settlement is that you would receive the entire amount in one lump sum. However, you would be responsible for the cost of all future medical treatment related to your injury. You also would NOT be able to reopen your claim for further benefits if your disability worsens. By giving you extra money, the insurance company has “bought” the right to NOT provide any further benefits to you.

Do I Need An MSA (Medicare Set-Aside Arrangement)?

If there is an indication that you are currently utilizing or will eventually claim Medicare or Social Security Disability Benefits (SSDI), then a Medicare Set- Aside Arrangement (MSA) may be required before you can settle your case by way of Compromise & Release Agreement. The MSA is constructed to ensure your continued access to medical treatment while protecting the interests of Medicare. The MSA must be approved by the Centers for Medicare and Medicaid Services (CMS).

What Is An MSA (Medicare Set-Aside Arrangement)?

A Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) is a financial agreement that allocates a portion of a workers’ compensation settlement to pay for future medical services related to the workers’ compensation injury, illness, or disease. These funds must be depleted before Medicare will pay for treatment related to the workers’ compensation injury, illness, or disease.

All parties in a workers’ compensation case have significant responsibilities under the Medicare Secondary Payer (MSP) laws to protect Medicare’s interests when resolving cases that include future medical expenses. The recommended method to protect Medicare’s interests is a WCMSA. The amount of the WCMSA is determined on a case-by-case basis. Please review the Determining if a WCMSA is Reasonable document to assist you with your WCMSA submission.

Information Extracted from the Centers for Medicare and Medicaid Services Website at:

http://www.cms.gov/Medicare/Coordination-of-Benefits/Workers-Compensation-Medicare-Set-Aside-Arrangements/WCMSAP-Overview.html

Should I Be Concerned About Video Surveillance?

Over the last decade we have seen an increase in the number of our clients who have come under surveillance. Though we find this activity to be offensive, it is nevertheless legal. The insurance carriers are allowed to watch your activities or videotape them when you are visible to the public, and you do not have a reasonable expectation of privacy, (e.g., your front yard, inside an open garage, at a gas station).

Surveillance is very expensive. Therefore, the private investigators usually pick times when they know you will be out and observable to conduct their surveillance (e.g., doctor’s appointments, depositions, court dates). Sometimes to see if you are at home a private investigator posing to be someone else such as a salesman will call or knock at your door. This conduct, however, is illegal. Should you feel you have come under surveillance, please call my office and let my staff know.

Only a small percentage of people come under surveillance. Usually surveillance is requested on seriously injured people who have major limitations, and/or disabilities, and those who have a large monetary claim. Surveillance can also be triggered by personal animosity of a boss or an ex-spouse who calls the workers’ compensation adjuster and makes accusations of lying or exaggeration. A Qualified Medical Evaluator or treating physician who questions the legitimacy of a claim can also trigger surveillance. Surveillance is sometimes requested by the insurance carrier if they have had a report of illegal activities such as an applicant working while they care collecting total temporary disability indemnity. Sometimes surveillance is just an arbitrary request by the adjuster.

If you think you are being followed or watched, do not hesitate to call the police. A legitimate private investigator usually advises the police of his presence. Because you have a workers‘ compensation case does not mean you should ignore normal suspicions or safety precautions regarding suspicious activity in and around your house.

If you feel you are under surveillance, conduct your life in a normal and routine manner. The investigator is looking to videotape you performing activities that you have told a physician, attorney, or your employer you cannot perform. Since physical recovery, increased activity and “good days” are a normal part of the disability and healing processes, you may be more active than your physician would expect. Accordingly, you should report any increase in ability to perform activities to your health care professional. If your pain or symptoms increase as a result of over activity, you should report this also. Your health care professional needs accurate information to allow him in making decisions regarding your disability and medical treatment. We do not want the fear of being watched to affect your life. Most of our clients’ lives have been already devastated by their injuries. Being followed is an unwanted, unwarranted indignation and intrusion.

If we believe a client of ours has been the subject of surveillance, the law provides that we are entitled to a copy of any video recordings. We want to get a copy of those recordings as soon as possible so that we can represent your interests with the insurance carrier and before the Workers’ Compensation Appeals Board. Please remember you have a California constitutional right to collect workers’ compensation benefits for your disability. Only collecting workers‘ compensation by misrepresentation is wrong. Trying to conduct as normal a life as possible, even when under surveillance, is both mentally and physically healthy.

What Is Senate Bill 863?

Some laws within the California Workers’ Compensation system were changed with the enactment of Senate Bill 863 on September 18, 2012.

Please click on the following link to review an overview of Senate Bill 863:

http://www.dir.ca.gov/dwc/SB863/SB863_Overview.htm