Workers’ Comp Benefits Explained

The who point of California’s workers' compensation system is to ensure those injured on the job or while performing work-related duties for employers off-site are fully and fairly compensated. The “end game” is seeing your benefits arrive in the bank so you can pay your medical expenses, support yourself and your family, and mitigate the fact that you’ve lost income due to the accident.

But how do you know whether you even qualify to receive benefits? That’s the starting point. In general, most injuries and most workers are fully covered. So it’s almost easier to point out the exceptions as to who doesn’t qualify. Here are some examples of where you would not likely get any benefits:

• If your injury did not occur at the workplace or during work-related activities for your employer while away from the workplace, then it is not covered by workers’ comp insurance.
• If your injury was self-inflicted or, in some cases, if it was sustained due to illegal actions or violations of company policies, you may not qualify for benefits. But check with a good lawyer first to make sure, as compensation in such cases can hinge on legal details.
• If injured because you were drunk or intoxicated with illegal drugs at work, and your employer did not know about or approve of your actions, then you could forfeit the right to collect.
• You generally cannot both sue your employer AND collect workers comp benefits for the same injury or incident. And who is at fault will not affect your ability to file a claim. So, you need to carefully assess which approach will get you the most just compensation - a lawsuit or a workers comp claim.
• Common exclusions based on the type of worker include independent contractors, owners of businesses, volunteer workers, those employed in a private home (babysitters and house cleaners for example), farm workers, maritime, workers, and railroad workers. But there are other ways for these types of employees to get compensation, and some of them may even qualify for workers comp in certain situations.
• Your employer is excluded from the requirement to carry workers’ comp insurance due to employing only a few workers. In this case, a tort action would be the only possible means of seeking compensation, given that the employer or coworker was in some way negligent so as to cause your injury.

Your employer has NO right to forbid you from filing a claim, and it is illegal for him to tell you not to or threaten you with the termination of employment or other negative employment actions for doing so. And if your employer retaliates against you for filing a claim, that forms the basis for a discrimination lawsuit.

The next question to consider, after finding out if you qualify to file for benefits at all, is to think about which types of expenses might be covered by those benefits. In general, compensation can apply to all medical bills stemming from the work-related injury, rehabilitation care, loss of income while away from work, loss of earning ability, the cost to retrain you for your job after recovery, payments to cover for permanent disabilities, and benefits to the surviving spouse or other bereaved in the case of a workplace fatality.

Note that you normally will be reimbursed for all expenses borne due to the injury in full, but the wage replacement part of the benefit will typically be around two-thirds of your average wage before the injury occurred. Also, realize that the wage-replacement income is 100% tax-free and that you only have to wait a few days before this benefit is eligible to begin.

You have to file your claim within 30 days of the date of injury or date of discovery of the injury. And the insurer then has 90 days to give you a “yes” or “no” answer on your claim proposal. If they fail to answer within that time frame, it counts the same as an approval. Also realize you are entitled to as much as $10,000 in medical expense benefits while your claim is being decided by the insurance adjustor, and you get a “bonus” fee tacked onto your benefits if they are approved but come late.

Technically, workers comp benefits in California break down into 5 official categories:

1. Medical expenses. Everything related to the injury is included, but that only.
2. Temporary disability benefits, if you are unable to work as before only temporarily.
3. Permanent disability benefits, if you are permanently rendered unable to work or unable to perform at pre-injury levels.
4. Death benefits, to the loved ones of a worker who dies in a work-related accident.
5. Supplemental job displacement benefits, which are for retraining to work for a different employer or in a different role for the same employer.

Not everyone is always sure on whether they count as an independent contractor or not under California law. If so, you would not qualify for workers compensation benefits. Also, some employers try to label employees independent contractors in order to avoid having to pay for workers comp insurance - but your boss telling you that you are independent doesn’t make it so.

Here are some questions to ask yourself to figure out if you have independent contractor status or not:

• Does your employer exercise stringent control over how you do your work?
• Can you be “fired” by your employer?
• Are you paid by the hour?
• Does your employer take deductions out of your paychecks?
• Are your work hours controlled?
• Do you have all materials and tools provided to you for your job?

If you answered “yes” to any of the above questions, you may not be so “independent” after all. You may wish to consult with an experienced workers compensation lawyer to be sure.

Now, if it turns out you are entitled to workers comp benefits but your employer has no workers comp insurance or not enough of it - what do you do? In that case, criminal charges could be pressed against your employer, and heavy fines or even jail time could apply. And you would have to file a lawsuit to collect reimbursement for your medical expenses and loss of income.

Note: you cannot be forced to pay for your employer’s workers comp insurance. It cannot be deducted from your checks. If it has been, or if your employer has failed to post notice of your workers’ comp rights on the work premises, or if other violations have occurred, you may have legal recourse.

Another question that comes up concerning benefits regards where you will be able to get the medical care you need? Now, if it is an emergency (ER visit), then you can get care anywhere and it’s still covered. But, otherwise, you need to use a doctor or other medical professional who is in your employer’s workers comp insurance care network. You will also need to be diagnosed and given an “evidence-based medical treatment plan.” This must prove the need for all treatments prescribed and justify the duration of the treatment as well. Your claim administrator or employer will be able to direct you to in-network physicians and specialists.

But, you may ask, what if I need care now and my claim is still being processed? You can request immediate authorization for needful care up to $10,000, and the claims administrator is legally bound to approve it. Thus, it’s not as if anyone needs to be deprived of necessary treatment just because workers'comp process takes time.

Temporary Disability Benefits

For most injuries, the disability will only be temporary, and thus, so will the benefits. Whenever a work-related injury makes you unable to work your usual job during the recovery period, you are entitled to TD (temporary disability) payments for the duration. Now, there is a further subdivision among TD benefits: they can be total or partial. A total disability prevents you from working at all for a period of time, while a partial one reduces your work schedule but does not totally cancel it.

Obviously, total temporary disability gets you a bigger benefit package than partial temporary disability would since you have a greater loss of income. And the longer it takes you to fully recover and return to normal work patterns, the longer those payments continue - normally given out in two-week intervals.

The equation for determining TD benefits is simple: multiply your total (average) income for that employer by two-thirds. Total income includes not just wages, but also overtime pay, bonus money, tips, and any food, lodging, or other valuable benefits you typically receive at work. Also realize that if you work multiple jobs, you may be able to get TD benefits based on the combined total average income instead of just for one job only.

There is a minimum amount you can get for total temporary disability (TTD) benefit payments, which minimum is based on the state’s average wage (refigured every January first). If your physician reports you are unable to work for at least 3 days and/or you experience an overnight hospitalization - you can apply for and receive TTD benefits. You can get up to 104 weeks worth of TTD benefits at different points in time as far as 5 years following the date of injury. That means two full years of payments are possible, even if not consecutive and uninterrupted. However, for certain severe injuries, you can get twice that (240 weeks.)

Note that TD benefits are non-taxable, which means “less is more.” And any delays in receiving your payments entitles you to a 10% “bonus” added to your benefit.

Permanent Disability Benefits

For more serious and long term injuries, you may need to seek PD (permanent disability) benefits. Thankfully, the large majority of injured workers end up recovering fully from their injuries after a period of weeks, months, or at most, years. However, if the injury inflicts you with permanent disabilities, then you should get continuing benefits.

Now, even if you are able to return to work, you may still be entitled to PD benefits. This is because you may not be able to perform at the same level as before the accident and thus suffer from permanent loss of earning ability going forward. Realize that, as with TD benefits, PD benefits don’t necessarily reimburse you for the full amount of lost income. But they will cover part of it at least, and the payments can keep on coming permanently (or until you would have retired.) Or, you could get a set settlement for a lump sum payment; or, you could begin with TD benefits and transfer over to PD payments at some point if your doctor indicates you will have at least some continuing disabilities due to the injury.

Once a medical condition has become stable enough, a doctor may declare that in his opinion, you have a permanent disability. This PD evaluation becomes the basis for your claim. The doctor will say that your condition has reached its “maximum improvement level” or is “permanent/stationary.” That's medical code for a permanent effect of the accident.

To determine how large of a PD payment you get, a determination has to be made on how far you are disabled. This is translated to a percentage or a “PD rating.” The higher the PD rating, the greater PD benefit you will receive. So if you disagree with the PD rating, you have to dispute it promptly before it’s too late. A good lawyer is essential to doing this, given the mass of complex regulations and paperwork involved in the process. There may be a need to examine the basis on which the PD rating was assessed - which should have consideration for not only work impairment but also for impairment at doing everyday “life activities.” Specifically, an “impairment number” is used to calculate your work disability factor, which then decides your reimbursement percentage and amount.

Finally, if your PD payment is late, you get an extra 10% added to it. And, even after the PD rating is determined, there may be a negotiation process with the insurer that will end in a settlement that will actually determine how much you will receive and for how long.

Your benefits may or may not end when you return to work. That depends on whether you have any PD benefits that continue to apply. But regardless, you will make more money by actually working than you will ever get via workers comp benefits alone. The system is designed that way on purpose to encourage people to want to get back to work as soon as possible - which most people want to do anyway just to "feel useful" again and get on with their career and life.

In general, those who get back to work as soon as it is safe for them to do so end up recovering from their injury quicker and end up losing less in wages over the long run. You will need to get advice and consent from your doctor to return to work on the one hand; but on the other hand, it’s a protection because you can’t be forced to start up your job again (or lose it) without his say-so either.

Talk to your employer also about returning to your job because, many times, employers may be willing to accommodate you to a degree, adjusting your job description (at least temporarily) so you can handle the work even before you are 100% recovered. Also, since your exact condition compared to the precise functions of the tasks assigned to you will greatly impact when or whether you can start working again - you lawyer, doctor, and employer all need to communicate clearly and in a timely manner on these crucial issues.

You may need a physician’s note indicating to your boss the limits of what you can do in your condition, what changes need to occur in your tasks and schedule, and any special requirements like wearing protective headsets or gear or avoiding heavy lifting.

As returning to work can cancel or diminish your workers’ comp benefits, and even an offer can do that if it is not handled in the right way, there is a great need for clarity on these matters for those receiving benefits currently or who may soon file a claim.

If your employer offers you your old job back, at the same pay rate as pre-injury, for a year or longer; or offers a modified job that fits within the doctor’s “work prescription,” lasts a year or more, and provides 85% or more of your previous wage; or an alternative position that also is good for 12 months and for 85% of the pre-injury wage level - then you need to accept it within 30 days.

To fail to accept such a legally valid offer within the thirty-day time limit allows your employer to simply withdraw his offer and not rehire you if he no longer wishes to. This could ultimately threaten your workers’ compensation benefits as well.

On the other hand, you could also seek employment elsewhere if you wish, especially if your old employer doesn't make an offer and you don't wish to fight with him over it. But the point here is this: never make these kinds of decisions alone! They could ultimately affect your benefits, which could leave you in a financially vulnerable situation when there is no good reason for that to happen. A good workers’ compensation attorney will alert you to all such dangers in order to protect your claim.

A well-negotiated settlement agreement will prevent your claim from being changed or canceled down the road. Timely advice about when and how to go back to work can also protect you from negative results. At Workers’ Compensation Attorney, we have deep experience in securing our clients their highest possible settlement amount and helping them manage their medical and employment-related affairs to their greatest overall benefit.

The bottom line with any workers’ compensation law firm is how much you can rely on them to fight hard for and consistently obtain the biggest possible benefits package as part of your overall reimbursement for a workplace injury. We at Workers Compensation Attorney Law Firm have a solid record of getting you every category of benefit and the highest possible amount in each category.

For immediate assistance in filing and winning your workers’ comp claim in Los Angeles and surrounding areas in Southern California, do not hesitate to contact us 24/7 at 310-956-4277 for a free, no-obligation legal consultation!