workers compensation benefits

Pain And Suffering In California Workers’ Compensation: What You Need To Know

As an Attorney representing Injured Workers, I am frequently asked by clients or prospective clients as to whether they are going to be compensated for their “pain and suffering” that arose out of their work injuries. This article will discuss the nature of “Pain and Suffering” within the framework of the California Workers’ Compensation Law.

Where does “Pain and Suffering” come from? “

“Pain and Suffering” is a concept that arises from Personal Injury Law. Black’s Law Dictionary, Fifth Edition, defines “pain and suffering” as a term used to describe not only physical discomfort and distress but also mental and emotional trauma which are recoverable as elements of damage in torts. Tort is a civil action involving injury. Personal Injury claims fall within the field of law called “Torts.”

Is there Compensation for “Pain and Suffering” within Workers’ Compensation?

The answer is “No” and “Yes.” The reason I say “no” and “yes” is that the correct initial answer to the question is “no.”

As noted by the California Department of Industrial Relations

“[w]orkers’ compensation is the nation’s oldest social insurance program: It was adopted in most states, including California, during the second decade of the 20th century. The workers’ compensation system is based on a trade-off between employers and employees. Employees are entitled to receive prompt, effective medical treatment for on-the-job injuries or illnesses no matter who is at fault and, in return, are prevented from suing employers over those injuries. As a result, California employers are required by law to have workers’ compensation insurance, even if they have only one employee. And, if your employees get hurt or sick because of work, you are required to pay for workers’ compensation benefits. Workers’ comp insurance provides basic benefits, including medical care, temporary disability benefits, permanent disability benefits, supplemental job displacement benefits and a return-to-work supplement, and death benefits.” [emphasis added] Note: workers’ compensation is intended to replace personal injury claims for Injured Workers.

As noted by the California Supreme Court in Jacobsen v. Industrial Acci. Com., 212 Cal. 440, 299 P. 66, 1931 Cal. LEXIS 644, “damages for physical pain and mental suffering, which are elements not compensable under the Industrial Accident Law unless they affect the employee’s ability to work.”

Thus, the “Yes” answer to the question to whether “Pain and Suffering” is part of a workers’ compensation award is premised on whether the “pain and suffering” affects the Injured Worker’s ability to work. If there is credible evidence to that effect, there is

a likelihood that they may be some compensation within the framework of workers’ compensation law. The challenge for the Injured Worker, in these circumstances, is to translate the “pain and suffering” into the realm of permanent disability.

How Can Recovery for “Pain and Suffering” be Translated into the Workers Compensation Benefits?

First, there must be an understanding of what workers’ compensation benefits covers. Workers’ Compensation benefits cover periods of temporary disability and provide for permanent disability. Temporary disability compensates people when they are unable to perform their job while they recover from their injury. Permanent disability provides compensation for the permanent impact of the injury on one’s ability to work. Permanent Disability is in large part based upon the AMA Guides for Permanent Impairment, the 5th Edition. Working with Doctors and Attorneys who are knowledgeable about these Guides is important to most accurately assess the Injured Worker’s permanent disability.

Sometimes, Injured Workers sustain horrific accidents which do not cause them either to miss work or to have any residual effects. By this, the Injured Worker completely recovered from the injury. Under Personal Injury Law, this injury may have resulted in “pain and suffering.” In the workers’ compensation system, however, it does not translate into workers’ compensation benefits. On the other hand, if the incident caused residual psychiatric impact which may be labor disabling, it is possible to pursue a psychiatric impairment. Further, exploration as to whether there was in effect some permanent impairment on a physical level should be examined. Sometimes, human beings are resilient and heal up.

What is the “Pain and Suffering” that Injured Workers commonly believe that they should be compensated for? 

Many Injured Workers complain about the “pain and suffering” from being in the workers’ compensation system. This includes the pain of dealing with an insurance company, the pain of having their claim denied, the pain of being denied benefits, the pain of having medical care denied or delayed, the pain of being deposed by an insurance company attorney, the pain of going to medical treatment and having to wait, the pain of getting bad medical treatment or dealing with unfriendly medical providers, the pain of being investigated, the pain of having to go to court hearings and doing trial. Finally, the pain of dealing with Applicant’s attorneys such as myself. At times, because the nature of claims is often uncertain or unknown, Attorneys and Injured Workers have to address difficult situations.

Is “Pain and Suffering” from Litigation compensable?

Pain and Suffering from participating in litigation are generally considered as non-industrial. See Rodriguez v. Workers’ Comp. Appeals Bd., 21 Cal. App. 4th 1747, 27 Cal. Rptr. 2d 93, 1994 Cal. App. LEXIS 67, 94 Cal. Daily Op. Service 642, 59 Cal. Comp. Cases 14, 94 Daily Journal DAR 1084

There is a slight exception when there is employer/carrier misconduct. See Unruh v. Truck Ins. Exch., 7 Cal. 3d 616, 498 P.2d 1063, 102 Cal. Rptr. 815, 1972 Cal. LEXIS 217, 37 Cal. Comp. Cases 590. Also Lee Patrick, Applicant v. Marina City Club, State Compensation Insurance Fund, Defendants, 2010 Cal. Wrk. Comp.P.D. LEXIS 19

What Does this all Mean?

In sum, Pain and Suffering are not compensable in workers’ compensation. Pain, however, if it is labor disabling is something upon which permanent disability can be awarded. This pain should be quantified in terms of the AMA Guides Whole Person Impairment or under a Psychiatric Disability. This quantification is done through medical reporting documenting the disability.

What if I Need Advice?

If you would like a free consultation regarding your workers’ compensation claim, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 26 years. Contact us today for more information.

California Workers Compensation Insurance

California Workers’ Compensation Insurance: What Your Employer Pays for In Their Workers’ Compensation Insurance Bill That May Benefit Injured Workers: What You Need to Know

California Workers’ Compensation Law requires that Employers pay surcharges in addition to the regular California Workers’ Compensation Insurance Premiums.   These Surcharges are very important to Injured Workers. These surcharges fund certain programs which are important for Injured Workers to know about. These Surcharges can help Injured Workers collect benefits from their claims.  These surcharges allow Injured Worker to have access to the Workers’ Compensation Appeals Board so that they can obtain benefits.  These surcharges can also be a source of an additional form of compensation for Injured Workers.

What are Surcharges? 

California Insurance Carriers are obligated by California Law to participate in the surcharge program by collecting these surcharge funds from Employers.  These surcharges are used to fund various programs which involve the workers’ compensation system.  See Labor Code Sections 62.5, 62.6 and Insurance Code Section 1063.5.

What are the Programs that the Surcharges fund? 

There is a Fraud Assessment Surcharge, a Workers’ Compensation Administration Revolving Fund Surcharge, an Uninsured Employers Benefits Trust Fund Surcharge, a Subsequent Injuries Benefits Trust Fund Surcharge, an Occupational Safety and Health Fund Surcharge, a Labor Enforcement Compliance Surcharge, and a California Guarantee Insurance Code Association Surcharge.

These surcharges, in many different ways directly benefit many Injured Workers.  I have arranged them in order of importance.

What is the Workers’ Compensation Administration Revolving Fund Surcharge? 

This Administrative Surcharge is one of the most important. It provides for the funding of the workers’ compensation administration, the return to work program, and employers’ workers’ compensation coverage compliance enforcement.

In sum, this surcharge pays for the Workers’ Compensation Appeals Board offices and their staffing.   Injured Workers cannot get their claims adjudicated without this surcharge.   Also, this surcharge benefits Injured Workers through the return to work program which includes the job displacement benefit.  Finally, this surcharge assists in making sure that Employers are properly insured so that Injured Workers can get benefits.

What is the CIGA Surcharge? 

The CIGA surcharge is another very important surcharge for Injured Workers.   The California Insurance Guarantee Association settles unpaid claims of insolvent insurers.  In this surcharge, the entire Insurance Industry assumes responsibility for defunct carriers’ obligations to their claimants.  In sum, when an Insurance Company goes insolvent, monies from this surcharge help to pay out these claims.  In other words, Injured Workers do not lose their entitlement to benefits should the adjusting Insurance Company go bankrupt.

What is the Uninsured Employer Benefits Trust Fund Surcharge? 

The Uninsured Employer Benefits Trust Fund is a very important surcharge for Injured Workers. In the event that there is no workers’ compensation insurance, this surcharge assists in creating a fund so that Injured Workers can collect benefits.

In sum, there are times when an Employee is injured at work for which the Employer did not have an insurance policy in effect. This surcharge helps these Injured Workers get the same benefits as if there was insurance

The Subsequent Injuries Trust Fund Surcharge? 

The Subsequent Injured Trust Fund Surcharge is another very important surcharge for Injured Workers. For Injured Workers who have pre-existing permanent disabilities and physical limitations, if they meet certain eligibility qualifications, they are allowed to collect additional compensation beyond their ordinary compensation.

What is the Occupational Safety and Health Fund Surcharge? 

The Occupational Safety and Health Fund surcharge is used to promote safe and healthful working conditions by funding state safety and health agencies to implement and enforce occupational health and safety laws.

What is the Labor Enforcement Compliance Fund Surcharge? 

The Labor Enforcement Compliance surcharge is used to enforce employer compliance with labor standards and securing workers’ compensation insurance.

What is the Fraud Surcharge? 

The Fraud Surcharge funds the investigation and prosecution of workers’ compensation fraud.   This is one surcharge that does not necessarily benefit an Injured Worker directly.  Fraud Investigation and Prosecution, in the Workers’ Compensation system, can involve Employers, Employees, and Medical Providers.

What if I Need Advice? 

If you would like a free consultation regarding your workers’ compensation claim, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 26 years. Contact us today for more information.