Injured Workers frequently ask the question “How long will my workers’ compensation case take?” As a Workers’ Compensation Attorney, this is one of the hardest and most complex questions to answer. In California Workers’ Compensation, there are a lot of variables and time deadlines which come into play. These include issues involving the worker’s medical condition as well events in the legal system. This article describes the large variety of time deadlines and issues that can cause delay in resolving the claim.
Can Claims End at Any Time?
Yes. Cases can resolve at any time. Settlements can be made at the onset of a claim. Settlements, however, must be approved by a Workers’ Compensation Judge. It is the Judge’s discretion whether to approve the settlement. The Judge’s discretion is based upon the determination as to adequacy of the settlement.
What are the Initial Delays in Workers’ Compensation?
- Filing a Claim: The most significant and important delay in a California Workers’ Compensation Case, is the Injured Workers’ delay in filing a claim. In order for a Workers’ Compensation Claim to move forward, the Claim of injury must be processed through the Claims Administrator. At times, an Injured Worker may report a claim to his or her employer and the employer doesn’t submit the claim to the claims administrator. Further, there can be a delay in the Claims Administrator opening the claim. Filing a Claim Form is the most important thing that an Injured Worker can do to start their claim.
- Investigation of Claim: Labor Code Section 5402(b) provides that a Claims Administrator has 90 dafter after the date of the claim form.
- Medical Treatment (One Working Day): Labor Code Section 5402(c) provides that a Claims Administrator shall authorize the provision of treatment. On delayed cases, the treatment will be provided until the date that liability is rejected.
- Payments of Temporary Disability Benefits (14 Days): Labor Code Section 4650(a) provides that If an injury causes temporary disability, the first payment of temporary disability indemnity shall be made not later than 14 days after knowledge of the injury and disability, on which date all indemnity then due shall be paid.
- Payments of Permanent Disability Benefits (14 Days): Labor Code Section 4650(b)(1) provides that the first permanent disability payment shall be made within 14 days after the date of last payment of temporary disability indemnity, except as provided in paragraph (2). Exception: The exception to this payment is if the employer has offered the employee a position that pays at least 85 percent of the wages and compensation paid to the employee at the time of injury or if the employee is employed in a position that pays at least 100 percent of the wages and compensation paid to the employee at the time of injury.
- On Going Payment of Temporary Disability Benefits (14 Days): Labor Code Section 4650(c) provides that subsequent payments to TTD benefits are to be made every two weeks on the day designated with the first payment.
- Panel Request on Unrepresented Case pursuant to Labor Code Section 4061 (More than 10 days): In the event there is a dispute of permanent impairment or disability dispute to Labor Code Section 4061, a QME Panel request can be made. If the QME Panel request was made in writing, the amount of time it takes for the Medical Unit to issue the Panel is uncertain. It is dependent upon the Staffing at the Medical Unit. Panel Request on Represented Case or DOI on or after 1/1/05 (More than 10 dates) after written letter per LC 4062.2).
- QME Panel Availability for Appointment (60 days unless waived to 90 days): An appointment must be scheduled for a date within 60 days. This deadline can be waived to accept an appointment within 90 days. Further, the 90 day deadline can also be waived. This can be done so by both parties in writing.
- Deposition of QMEs (Within 120 days from the date of the notice of the deposition): If either party wishes to depose the QME, the QME must make themselves available within 120 days from the notice of the deposition.
- Issuance of QME/AME Reports (Within 30 days from the date the exam commenced): This can be further extended by 30 days if it is requested by the examining physician.
- Supplemental QME Reports (Within 60 days from the date of the request for the supplemental): This can also be extended by 30 days if the parties agree. Otherwise, an extension must be requested by the Medical Director.
- Time Deadline for Requests for Authorization (RFA) Approval or Denial (within 5 business days from the date the written RFA was first received, whether by the employer, the claims adjuster or the URO): Business days means that Saturdays and Sundays are not included in the counting of the days. Holidays do not count as a business day as well. The day after receipt is counted as day one. There is a different time frame for expedited reviews. Expedited Review deadline is 72 hours.
- Claim Administrators Response to Approved RFAs (24 hours of the decision): The initial communication must be within 24 hours of the decision, by telephone call or fax.
Uncommon Delays in Workers’ Compensation
There are a number of uncommon delays that can happen in the handling of a workers’ compensation case. The following is a list of some delays that are not common but have occurred.
- Sickness of the Evaluating Physician: From time to time, an Evaluating Physician may suffer a serious medical condition that takes them away from their practice and their ability to write reports.
- Death of the Evaluating Physician: From time to time, an Evaluating Physician has passed away. Death of a participating Attorney: from time to time, an Attorney, Applicant or Defense may pass away. There may be some delay during the process of finding a replacement counsel.
- Retirement of the Evaluating Physician: From time to time, an Evaluating Physician will retire. Frequently, this doctor will not make him or herself available for deposition or supplemental reporting.
- Resignation/Disqualification of the Evaluating Physician: From time to time, an Evaluating Physician may either resign from the practice of medicine or resign from their appointment as a QME evaluator. Therefore, they may no long be able to report on the matter.
- Collapse of Insurance Company: When an Insurance Company becomes insolvent, it will generally be taken over by an agency which will take over and administrate the claim. For Insurance Companies, the agency is the California Insurance Guarantee Association. In these instances, there will be the delay in transferring the files to CIGA as well as possible transfer of the legal files from the Insurance Company attorney to a CIGA Panel attorney.
- No Insurance: When an Employer is illegally uninsured, there will be delays in opening a file with the Uninsured Employers Fund. If the Illegally Uninsured Employer does not take responsibility, then the Uninsured Insurance Fund must be joined as a party Defendant. This requires the service of the Employer of a Special Notice of Lawsuit as well as the joinder of the UEF.
- Opening of File: Sometimes, an Employer may not turn over the claim to their Claims Administrators. This delay in turning over the file delays the case as far as the authorization of treatment at the onset of the case as well as the payment of benefits, if indicated.
Claims Administrative Staff Unavailability
- Adjuster Unavailability: Adjuster can be sick or on family leave, on vacation, or overworked. These items may take them away from handling of a particular file. In rare instances, a seat at the Adjusting Agency may not be filled and there is no adjuster on the file.
- Claims Manager: A Claims Manager can be sick or on family leave, on vacation, or overworked. These items may take them away from authorizing benefits or settlement of the claim. Higher Levels of Authority: There may be high levels or authority and/or the Employer or Secondary Insurance that may need to provide authority. Their limited availability may cause delays.
- WCJ Availability: Judge’s court dates are subject to change. Judges can be sick, take vacation, or have some other reason as to why they are not able to be in attendance at their court dates. Depending on the situation, some WCAB’s will have alternative WCJs to fill in on the hearing dates. Otherwise, the matter will be continued to another date. Further, if it is a continuing trial, most likely the case will be continued to a new date. From time to time, a Judge has become permanently unavailable via resignation as WCJ, retirement as WCJ, or death. The parties, in those circumstances, will be reassigned a Judge and the parties will have to reach some understanding how the matter is to proceed. Sometimes, the case will be retried. Other times, the prior testimony will be used.
- Witness Availability: From time to time, at Trial, a case will be continued if a witness is unavailable. This unavailability may be due to illness, vacation or being out of the city, state or country.
- Applicant Unavailability: Injured Workers can be unavailable to attend medical appointments, depositions or court dates. The failure to timely attend these appointments cause delay on cases. Further, in some circumstances, Injured Workers can be incarcerated and their matters cannot be resolved until they are released from prison.
The Law Offices of Edward J. Singer
With more than 25 years of expertise in defending workers’ rights, the Law Offices of Edward J. Singer, A Professional Law Corporation, is here to assist. If you need a workers compensation attorney to answer questions or concerns, please do not hesitate to contact our Los Angeles offices.