Worker’s Comp FAQ
What benefits am I am entitled to as a result of an on-the-job injury?
Except for special situations, most on-the-job injuries involve only the following types of benefits:
- MEDICAL TREATMENT – “to cure or relieve” from the effects of the work injury.
- TEMPORARY DISABILITY – if the doctor takes you off work (which means a check every other week for 2/3 of your gross wages.
- PERMANENT DISABILITY – more bi-weekly checks when you return to work if you still have permanent problems or restrictions from the injury. The number of weeks you get these payments depends on how severe your permanent disability is.
And, except for some rare penalties, that’s it. Four possible types of benefits. You don’t get “pain and suffering,” “emotional distress,” or future wage loss should you be unable to return to work.
How much is your fee?
A lawyer cannot ask for, or accept, any money from you for representing you in your worker’s compensation case until a Worker’s Compensation Judge has awarded the fee in advance, usually at the end of the case. And almost always this fee ranges from 9 to 15% of your settlement. The fee is deducted out of your settlement and paid directly to the attorney. Your award is paid directly to you.
I filed my claim and the insurance company DENIED it! What can I do?
Usually your claim is denied because your employer’s doctor said your injury was NOT work-related.
First, if your claim was denied more than 90 days after you filed out your first injury claim form, the insurance company usually loses its right to deny your claim and generally you win almost by “default” (although the insurance company can sometimes delay making a decision for an additional 90 days although you can request a hearing if you don’t want to wait).
But if your claim was denied within the 90-day period, the next stip is to take ACTION! against your employer and the employer’s insurance company (if there is one). First, FILE A FORM CALLED THE “APPLICATION” with the Worker’s Compensation Appeals Board (WCAB) within ONE YEAR of the injury (there are certain exceptions to this one-year statute of limitations. Filling this “Application” simply stops deadlines from running. No hearing is set until you or the other side requests one.
Next, you’ll need medical “evidence” to support your claim. You can’t rely on just your testimony to rebut a negative doctor’s report; you need another medical report. To get such evidence, you need to go to your own doctor (probably at your own cost) and see if he or she will verify that your claimed injury is in fact work-related – and write a report to that effect.
Once you have a medical report supporting your work injury, you should file it with the WCAB and request a hearing.
In the meantime, if you can’t work you should try to get State Disability through your local E.D.D. office (get the forms at your local E.D.D. office, then you and your doctor fill them out and send them back to E.D.D.).
I’m sure my medical problems are caused by work but I can’t pinpoint a specific incident. Am I out of luck?
You can claim a work injury even WITHOUT a specific injury occurring. In fact, it’s more common than you might think!
Lots of people don’t file claims because they think their injury has to be like falling or breaking your leg. Something specific. But what happens if you move pianos for a month straight and go home from work one day feeling ok, but wake up the next morning with back spasms in the 7.5 range on the Richter scale?
Well surprise… it doesn’t have to be a “specific” injury! It can be something that developed over a period of time, without any single incident. This type of work injury is called a “cumulative trauma” (CT for short) and is just as “legitimate” a work injury as a specific injury.
“CT” injuries could include any type of “over-use” work situations and most commonly involve upper extremities (arms, wrists, “carpel tunnel syndrome”), or the back, or other various joints that are involved in repetitive use. This can also include long term exposure to certain chemicals, or acquiring on “occupational disease.”
Usually a doctor must confirm that at least part of the problem comes from the repetitive or physically (or sometimes mentally) stressful nature of your job. Then you should claim it as a work injury. (And don’t always take the first doctor’s opinion on this as a gospel. Disputes and issues involving “CT” claims are common in worker’s comp. Doctors and lawyers fight all the time over all or part of an injury is a work-related “cumulative trauma.”)
For how long can I get medical treatment?
If the treating doctor feels you may continue to need treatment for your work injury, your right to medical treatment can remain open INDEFINITELY (NOT just 1 year or 5 years as some might try telling you). Once your employer (or his insurance company) agrees you have a work injury, you can continue receiving treatment under worker’s comp. for as long as the treating doctor says it’s necessary – EVEN IF YOU STOP WORKING FOR THAT EMPLOYER.
The only ways you WON’T continue to receive treatment under worker’s comp. is (a) if you settle your claim and agree to close your right to future medical care or (b) your doctor says you don’t need any more treatment. If the medical reports say you either do need, or may need, more treatment, you can almost always keep your right to such treatment left open by signing papers at the end of your case called “Stipulations” (or having a hearing). [And even if your doctor says you don’t need treatment at the moment, you usually have 5 YEARS FROM THE DATE OF INJURY to “reopen” your case if things change and you begin needing treatment again. But if you’ve been found earlier to no longer need treatment, and you don’t reopen your case within 5 years, you’‘re out of luck!]
Generally though, you should rest easy knowing you can open your right to further medical treatment if the treating doctor agrees you’ll continue needing it. Only in very rare situations where the need for future treatment is disputed (or if you choose to settle) can you lost this right – usually when the doctor says don’t need any more treatment. Otherwise, you’ll get treatment if you need it.
The doctor’s report is in accurate and doesn’t fully detail my injuries. Is this the “final word” about my injury?
Relax. You DON’T have to use just the treating doctor’s opinions if you don’t want to. In fact, usually after the first 30 days following your injury you can select your very own treating doctor by just notifying the carrier who you want.
But whether you’ve switched treating doctors or not, if you don’t agree with the final opinions regarding your level of disability, need for treatment, etc., you can request another doctor’s evaluation.
If you want another evaluation and don’t have a lawyer, you (or the insurance company) can “object” to the treating doctor’s report and you will be sent a list consisting of 3 randomly selected doctors in your area and you then choose any one for a final evaluation. This doctor is called the “panel QME” (qualified medical examiner) and his/her opinions are then usually the one’s used for determining how much money you’re entitled to and whether additional treatment, or other benefits, are warranted.
And if you have a lawyer already, a slightly different procedure is used if you don’t like your treating doctor’s final opinions. Your lawyer will know how to handle this and can advise you about the pros and cons.
Can I file a claim for STRESS?
Think TWICE before filing such a claim. Contrary to popular belief, filing a “stress claim” is NOT your ticket out of a bum job. In fact, it’s almost always an uphill battle. The laws have gotten stricter and stricter on filing such claims. Virtually all of them are fought tooth and nail by the insurance company.
First, it begins a full inquiry into your “psychiatric well-being.” Your private life becomes an open book. Psychiatrists test and evaluate you. “Psychiatric reports” are generated with your name at the top. The insurance company is permitted to look at every possible factor that must be contributing to your current mental condition: Criminal backgrounds of you and your family, financial background, deaths in the family marital problems, kid problems, sexual problems, prior psychiatric incident, etc. etc.
So unless you don’t mind being questioned and investigated on every possible private aspect of your life, it’s usually not worth the trouble. (And unless you have a real good case, you’ll probably have trouble finding a reputable lawyer willing to handle it anyway.)
Naturally, there are real “stress” or “psyche” claims that should DEFINITELY get filed. There ARE very real instances of psychiatric work injuries. But these usually require (a) something fairly horrible happening at work which (b) AFFECTS you severely enough to require psychiatric treatment. An armed robbery at work, or witnessing a horrible incident at work, are obvious examples of legitimate psyche claims that should be filed. Another valid psyche claim is heavy depression which often follows a very serious injury (this ADDS a psyche claim to your already existing physical injury case). Most good workers’ comp attorneys will do the “screening” for you by letting you know whether it’s a good enough psyche case worth filing.
I need help! How?
The big question is do I need a worker’s comp attorney. You don’t need one in every work injury case; but, then again, don’t believe the insurance company when it tells you you’ll never need one. (It comes right after “Hi, I’m from the insurance company and I’m here to help.”)
If your case involves only minor, or no permanent problems or restrictions, you probably don’t need a lawyer to either settle your case or sign papers to keep your medical treatment open if necessary.
I’d suggest consulting with a worker’s comp attorney in any of the following situations:
- Having trouble getting worker’s comp benefits and you’‘ve sustained a serious work injury;
- The injury is serious enough (and/or requiring surgery) to likely cause more than minor permanent problems;
- The insurance company wants to take your deposition, or the deposition of a doctor who has written a report in your case;
- There is an uninsured employer involved;
- Someone besides your employer (or coworker) – some “third party” – might be at fault for causing your injury;
- You’ve been offered more than a few thousand dollars to settle.
These are just some of the reasons to consider using a lawyer. There are of course many others. If you believe you need a lawyer for your workers compensation claim, or if you are not sure, call my office at (530) 673-5637 and make an appointment. The initial consultation is free.
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