Workers’ Compensation FAQ
At Lewis, Marenstein, Wicke, Sherwin & Lee, LLP, we proudly represent public safety members and other public sector employees in workers’ compensation cases. The following are answers to some common questions we receive about workers’ compensation cases. To discuss your case with an experienced lawyer, call our Woodland Hills office at 818-835-4332 or contact us online.
Workers’ compensation is a very limited compensation system intended to provide protection to employees injured in the course and scope of their employment. Workers’ compensation in California is a “no-fault” system in which neither the fault of the employee nor employer is considered before benefits are paid. Thus, negligence or intentional wrongdoing are generally irrelevant as to whether you receive workers’ compensation. However, because it is “no-fault,” there are no jury trials and damages or recovery is limited. You do not receive “pain and suffering” damages in the workers’ compensation system.
There are four primary benefits you may receive when injured on the job:
- Temporary disability compensation
- Medical treatment for the industrial injury
- Permanent disability compensation
- Job displacement allowance
Yes! You are entitled to receive disability compensation when you are temporarily disabled from your job. As a result of the legislative changes in 2004, you are limited to two years of temporary disability compensation within five years from the date of your injury. If you are still temporarily disabled more than five years from the date of your injury, you are entitled to one year of full salary under Labor Code section 4850, which courts towards your two years of temporary disability compensation.
The amount of compensation you receive while temporarily disabled depends on whom you work for and your actual average weekly earnings. In general, the following guidelines apply:
Private sector employees:
Employees working in the private sector receive two-thirds of their average weekly earnings up to a maximum of $1,215.27 per week for injuries occurring after January 1, 2018. This compensation is normally paid by the employer’s workers’ compensation insurance carrier, and is commonly referred to as the “state rate” of compensation. An employer may supplement this amount with additional compensation such as partial salary, but is not required to do so.
Los Angeles County employees:
Safety members (police and firefighters) — L.A. City firefighters and police officers receive full salary tax-free for up to one year for each injury, payable under Labor Code section 4850.
Civilian employees — Pursuant to a county ordinance, civilian employees receive 70 percent of their salary tax free for up to one calendar year from the date of their injury. If they are still temporarily disabled beyond one calendar year, they receive the maximum allowable under the state rate of temporary disability.
Los Angeles city employees:
Safety members (police and firefighters) — LA city firefighters receive 100 percent of their salary tax free, for up to one full year for each injury. This is commonly referred to as “injured on duty pay” or “IOD pay.” LA city police officers also receive “IOD pay,” but only receive salary tax-free if the injury is due to a “sudden and severe traumatic event” as determined by the medical liaison unit of the personnel division.
Civilians — Pursuant to the city charter and Los Angeles administrative code, all civilians receive “injured on duty” (IOD) for up to one full year for each injury. Each city department has negotiated different contracts governing IOD pay. Some employees receive 90 percent of their salary tax-free, while others receive their normal salary with all taxes, etc., deducted. In either event, a city civilian will not receive less than what he/she would receive if working.
Public sector employees (nonstate, L.A. County or L.A. city):
Safety members (police and fire) — Safety employees who are members of the Public Employees’ Retirement System (PERS), are entitled to receive 100 percent of their salary for up to one year for each industrial injury. This payment is made pursuant to Labor Code Section 4850, and is commonly referred to as “4850 time,” “4850 benefits,” etc.
Civilians — Civilians working for nonstate governmental agencies are normally paid pursuant to each city’s charter or regulatory code provisions. Each city differs in how they pay employees, but in no event can the employee be paid less than the maximum allowable under the state rate of temporary disability. Civilians working for all governmental agencies should check with their respective personnel department to determine the rate of pay for an industrial injury.
Yes! You may be entitled to receive “permanent disability” compensation if you suffer any permanent residual effects from the injury. A determination of the extent of permanent disability is based upon a review of the medical evidence, which can include your treating physician, or other physicians reporting for your employer and/or your attorney. The percentage of disability you receive is based on “impairment” as defined by the American Medical Association guides for impairment and may be payable even if you return to your usual and customary occupation. The actual monetary value of any settlement is computed from a disability schedule adopted by the state of California.
What type of treatment do I receive for an industrial injury, and for how long is treatment rendered?
When you are injured on the job, you are entitled to have the employer and/or its workers’ compensation insurance carrier pay for all medical treatment that is reasonable and necessary to cure and relieve you from the effects of the injury. The employer must pay for all costs without liability to you, the injured employee. Medical care can include doctor’s consultations/visits, hospitalization, surgery, physical therapy, medications, laboratory and diagnostic testing, nursing care, psychiatric treatment, and mileage costs for travel to and from doctors, therapists, etc.
As a result of the so-called reform legislation of 2003 and 2004, medical treatment, particularly for orthopedic injuries, is severely limited. All medical treatment is now subject to “utilization review” which allows the employer insurance carrier, to submit the treatment requests to a doctor for review to determine if the treatment is appropriate. To be approved, the medical treatment must be recognized by nationally accepted guidelines approved by the administrative director of the Division of Workers’ Compensation. These guidelines are “presumed correct,” and if the recommendations of your treating physician do not fall within the guidelines, they may not be approved.
Further, for all orthopedic injuries occurring after January 1,2004, there is a lifetime limit of 24 physical therapy and chiropractic sessions. While a claims examiner may approve more therapy, there is no appeal process if they deny medical treatment beyond the limit stated above.
Effective January 1, 2005, all employers may create a medical network provider (MNP) to control medical treatment for your work-related injury. If your employer creates a MNP, you must treat within the network for a work-related injury. While you have the right to choose a doctor within the network, you do not have the right to treat outside the network unless you successfully appeal to the administrative director.
You may be able to avoid treating within the MNP if you predesignate a doctor to treat you for a work-related injury. This doctor must be one who has been your primary treating doctor or surgeon and who consents to the predesignation. Predesignation may be done at any time so long as it is prior to an injury.
Yes. There are various statutes of limitations that apply to filing a workers’ compensation case, and they can be extremely complex. Any injury that requires treatment should be reported immediately to your employer, who in turn should provide to you, within 24 hours, an “employee claim for workers’ compensation.” This form is then completed by you and returned to your employer.
If an employer denies responsibility for a work-related injury, you should consult with an attorney. An attorney may file an “application for adjudication of claim” with the Workers’ Compensation Appeals Board in order to invoke the jurisdiction of the appeals board to rule on your claim. The time limits to file an “application” may be one year from the date of the injury, or possibly five years from the injury date, depending on whether liability has been accepted and if any workers’ compensation benefits have been provided. Again, time limitation questions are complex, and if you have any question that a claim needs to be filed within a certain date, consultation with an attorney is recommended.
Legally, an employer may not discriminate in any way against an employee who files or threatens to file a workers’ compensation claim. Labor Code Section 132(a) prohibits such action by an employer and allows for increased compensation and possible reinstatement with back benefits if the employer is found to have violated this policy. Often, the acts of discrimination may not be actual termination, but rather a demotion or denial of a promotion. Further, refusal to provide normal work benefits that other noninjured employees may receive could constitute a violation of this section. A petition for violation of this section must be filed with the Workers’ Compensation Appeals Board within one year from the act of discrimination.
Discrimination by your employer resulting from an injury may also give rise to civil actions such as claims with the California Department of Fair Housing; EEOC, Americans With Disability Act. You may wish to consult with your attorney to see if you have a viable claim under any such statute.
Normally, if injured on the job, you are limited to recovering from your employer in workers’ compensation only. You may not sue your employer for “damages” in a separate civil action, and thus workers’ compensation is referred to as the employee’s “exclusive remedy.” However, there are various exceptions to this rule that do allow you to sue the employer in a court of general jurisdiction, and recover general and special damages. These exceptions generally cover situations where the employer may have intentionally caused the injury or violated some public policy when the injury occurred (i.e., sexual or racial harassment).
You may also have legal rights against a third person or party as a result of a work-related injury. A common example is an on-duty traffic accident where the accident was caused by the negligence of the other driver. In such a case, you could pursue a separate civil action against the other driver and/or the driver’s automobile insurance carrier.
As with all legal actions, time limitations apply in filing separate civil actions against an employer and/or a third party, and an attorney should be consulted if any questions exist.
If you were injured prior to January 1, 2004, and you find that as a result of your injury, you are unable to return to your usual and customary occupation, your employer is obligated to provide vocational rehabilitation services up to a maximum of $16,000 in costs and payments.
For those injured after January 1, 2004, vocational rehabilitation does not exist. If you are unable to return to work, you may be entitled to a “job displacement allowance” ranging from $4,000 to $10,000 that is payable in a voucher form to a school or training facility.
Not all injured employees need the services of an attorney to pursue their rights to workers’ compensation. Many claims adjusters provide prompt and thorough service, and if you make a complete recovery from an injury without any residual problems, then an attorney may not be necessary. However, if you are not receiving benefits in a timely manner, have difficulty obtaining appropriate medical care, have residual permanent disability justifying final permanent disability compensation, or a need for “future medical care” benefits, you should consult with an attorney to ensure that all appropriate benefits are and will be provided to you.
Yes. Surviving dependents (total or partial) may be entitled to any benefits that accrued while the injured employee was alive. Surviving dependents may also be entitled to workers’ compensation death benefits, including burial expenses if the death was job-related. Questions as to causation and the amount of such benefits vary with each case and should be discussed with an attorney. Similarly, there are specific time limitations to file a death claim with the Workers’ Compensation Appeals Board, and each case should be discussed with an attorney to insure a statute does not expire.