The Claim: How does it work?

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Keeping Records

Before discussing how to file a claim, it is necessary to emphasize to the worker the importance of documenting their claim of injury.  This documentation may be crucial in both establishing their right for benefits as well as determining the amount of such benefits.

The worker, upon making the determination that they will be filing a claim, should open up a file at home.  That file can simply be a large envelope upon which the worker places all the pertinent documents within.  Below is a comprehensive list of documents that the worker should retain.

Evidence of Employment:

Most time, a payroll check stub is sufficient, particularly the worker has one that was made about the time of injury or during the period the injury occurred.   Evidence of  wages or earnings is important to determine the rate of benefits as well as proving employment.    If the worker has had other employment going back one year from the date of the injury claim, any evidence concerning those earnings might also be important.

Employment Documents:

Employment documents are also important. Any disability, return to work slips, and any correspondence between you and your employer.  This may include personnel evaluations, any write-ups, and letters, including letters, i.e. letters of termination, suspension or demotion. Further, an Employee Handbook or Manual, Union Contract, or Memorandum of Understanding,  may also be important.  These documents may be helpful to not only prove your work injury but also pursue a discrimination claim if it is indicated.

Injury or Accident Reports:

Any claim form or report of injury that the worker either provided to their employer or their employer provided to them.  If it was an automobile accident, a crime, or other incident, the report prepared by the police or other investigative agency would be important.  Further, a list of witness, their names, addresses and phone numbers is also helpful.

Evidence of Medical Treatment:

Any medical reports or slips provided to the worker by any medical facility, i.e. disability slips or return to work slips. Also, any business cards or any doctors or medical care providers that the worker saw in connection with either their treatment or examination in connection with their claim.  Keeping a list of doctors, their addresses and phone numbers is important for the purpose of obtaining medical evidence to prove up a claim as being industrial in nature.

Insurance Related Documents:

Any and all correspondence that has occurred between the worker and the claim administrator or insurance carrier for the employer.  This includes all of the check stubs for all disability payments and reimbursements for out-of-pocket expenses.  Further, it is recommended that the worker save the envelopes of the letters you receive and write down on the envelope the actual date that they received the letter.  The timing of when they receive certain items may be important for a variety of reasons.  The worker should keep the letters and the envelopes together.  The worker should make a copy of all documents that are sent to the claims administrator.  This includes submission of medical bills as well as responses to claims administrator inquiries.  The worker should be sure the correspondence is accurately dated as to when they were mailed to them.  Finally, the worker should keep track of  mileage and out-of-pocket expenses and receipts.

Legal Documents:

The workers should save all documents supplied by any lawyers involved in their case, both their own attorney and the attorney for the claims administrator or the claim administrator.  Also,  all correspondence from the Workers’ Compensation Appeals Board should also be saved as well.  These documents are helpful for the worker should they wish to obtain a second legal opinion with another attorney or consult the Information & Assistance Officer at the W.C.A.B.

Settlement/Award Documents:

A worker should save any and all settlement documents, including Compromise and Releases along with the Order Approving, and  Stipulations with Request for Award and Award should be saved.  Further, if the case went to trial, there should be a decision was made by a Workers’ Compensation Judge along with a Findings and Award.

These documents provide the worker  information as to the benefits they may be entitled to after the claim has become finalized.  It is recommended that the worker place  a copy of these documents in a safe place, i.e. safety deposit box.  Further, if the worker has a Stipulated Award, the worker may have the right to re-open the case for additional benefits should their condition worsen and result in new and further disability.  The time deadline to file a Petition to Reopen is 5 years from the date of injury.  Thus, even if the worker has a small Stipulation which has been fully paid out or which does not provide for further medical care, it is important to save it in case the condition worsens. For example, a worker with a hypertension and heart disease, after his award, within the 5 year deadline, suffers a stroke as a result of his industrially based hypertension. As a result, the worker is rendered permanently disabled.  It is possible that this claim may be re-opened and that the worker may be eligible for a 100 percent award.

Reporting the Claim

A claim of injury may be reported in many ways:  (a) requesting and filing out a claim form to your employer,  (b) orally reporting the injury to the employer, and  (c) having a representative- i.e an attorney-submit the claim form on your behalf.

Generally, the reporting of a claim is done via a “Claim Form.”  A Claim Form is a form produced by the State of California.  If the employer does not have one,  the worker can obtain one from their local Workers’ Compensation Appeals Board.  The front desk should have the form available.

If a worker cannot get a claim form,  the worker should simply write a letter advising to their employer that they sustained an injury that they consider to be work-related.  This should be considered sufficient for the purpose of providing notice to the employer of the claim of injury.  The worker should be sure to keep a copy of the letter, and note the date and the person who it was turned into.

NOTE: Although a worker may “orally” inform their employer of an injury, it is always recommended that the worker obtain some written document evidencing the claim of injury.  If  the worker did only orally report it, the worker should immediately write down the date and time they did so.  Further, the worker should write down who it was reported to and whether there were any witnesses present.

Should I get an Attorney

Workers'  Compensation Law has evolved into a various complex system which entails Case law, Labor Code Sections, Regulations, and Medicine.  A Practitioner in Workers’ Compensation Law must be well-versed on all of these aspects to effectually represent injured workers.  In sum, what was intended as a simple system to provide injured men and women benefits has become extremely complex.

In most circumstances, it is recommended that an injured worker consult with an attorney to see if there is some benefit in retaining an attorney.  Any reputable practitioner should advise an injured worker as to whether or not an attorney’s services would be of benefit to the worker.  Further, the initial consultation should be free.  Attorneys in Workers’ Compensation work on a contingency fee basis and the fees are awarded by the Workers’ Compensation Appeals Board by a Workers’ Compensation Judge.  There is no need for the injured worker to have to pay the attorney directly.  In most cases, the claims administrators mail a check directly to the attorney for the fees awarded by the Court.  Fees generally range from  9-15 % of the recovery of benefits.  On special issues, Courts have provided for fees of a  higher percentage.

Further, the worker can change attorneys if they are dissatisfied.  There is no additional charge for changing attorneys.  Attorney’s fees do not increase due to the change.  The fee will be determined by the Judge issuing the award.  It should be noted that a number of attorneys frown on substituting in on cases when there have been other attorneys.    Therefore, it is important that the worker make careful choices on the attorneys handling their claim.

There is no requirement that an injured worker must retain an attorney to handle their workers’ compensation claim.  The State provides Information & Assistance (I & A)  Officers to provide assistance to injured workers who represent themselves.  They are generally referred to as an “In Pro Per”, which is Latin for representing oneself.  The I & A office phone number is 800-736-7401.

When do I have to file

Generally, the worker has one year from the date of their knowledge of the injury to file their claim.  If benefits have been provided, the worker then has 5 years from the date of injury to pursue the claim.  If medical benefits have been provided, the worker has up to one year from the date of benefits last furnished to file a claim.  This may be beyond 5 years from the date of injury.   Generally, it is recommended that the claim be filed within one year from the date of knowledge of the claim of the claim.  Along with filing a claim, an Application must also be filed at the Workers’ Compensation Appeals Board.

Claims: The Investigation: Acceptance or Denial of Claim

Per the Labor Code, a claims administrator has 90 days from the date of knowledge to accept or deny the claim.  During that period, a claims administrator will generally conduct discovery to ascertain whether the worker’s claim is industrial or not.  This may include any of the following, being sent to Defense Medical Examiners, a Statement taken by an Investigator  (this will occur generally if you are unrepresented), a Deposition (this will occur generally when you are represented and you will be entitled to have your attorney present for counsel during the questioning), an Investigation by a Private Investigator which could entail the taking of  witness statements  and/ or Subrosa Filming.  Some of these activities may continue to take place beyond the first 90 days of the claim have elapsed.

It is very important that the worker act with caution during this period.  It is very important to be truthful and provide accurate information.  Failure to disclosure information, i.e. prior claims, prior accidents, or prior medical problems, may seriously damage a worker’s case.  Many times a workers’ compensation case will turn on the credibility of the worker claiming injury.  Therefore, it is very important for the worker to maintain credibility throughout the claim.

Claims: Accepted or Denied, what does it mean?

Pursuant to the Labor Code, a claims administrator has 90 days from date of knowledge of the employer to accept or deny an injury claim.  This means that the administrator may delay the claim case up to 90 days before advising the worker whether the claim is accepted or not.

If the worker’s claim has not been accepted from the onset, and the worker is  not receiving benefits,  it is upon the worker to seek medical care.  This can be done either through the worker’s health insurance provider, a physician who takes workers’ compensation treatment on a lien basis, or by paying a doctor out of the worker’s  own pocket.  A physician who treats on a lien basis will bill the claims administrator and seek payment from them when the claim is resolved.  If the worker pays for medical services out of their own pocket and the claim is not accepted, there is a significant risk that the worker may not get reimbursed for those expenses.

Further, if the worker’s claim is not yet accepted, and the worker is disabled from working, either partially or entirely, the worker must contact their short term disability providers and apply for benefits immediately.  This could be State Disability (SDI) or some other disability plan.  A worker should consult their employer concerning what disability plan is in place.  A worker should advise the short term disability provider that they have applied for Workers’ Compensation benefits but have not received them yet.

NOTE: If the claim then becomes accepted and the payment periods from disability and workers’ compensation overlap, the worker should contact the various entities to insure that there was no duplication of benefits.

IMPORTANT NOTE:

The denial of a claim does not mean that your case is over! It does not mean that you have lost your case!

A denial simply means that the claims administrator, at the time of the denial,  is not accepting the claim and will not pay benefits.  Eventually, the claims administrator may accept the claim, i.e. they receive a report from either one of their physicians or a neutral physician indicating that the claim is in fact industrial.  Further,  injured workers are entitled to have a hearing before the Workers’ Compensation Appeal Board to address whether their claim of injury is industrial.  The Workers’ Compensation Appeals Board may find the injury arose out of and was in the course and scope of employment and order the claims administrator to provide the worker benefits.  Many times, however, the claims administrators may want to settle with the worker before going to trial.  They may do it to avoid the risk of  the results of the trial.

If the worker's claim is denied,  the worker is entitled to obtain various medical examinations and testing to prove up their case.  These examinations and testing will generally be paid by the claims administrator.  These are called Medical-Legal Examinations.   It is recommended that the worker contact an attorney on a denied claim.  Further, with respect to Medical-Legal examinations and testing, it is recommended that an attorney be contacted.

If a worker’s claim is accepted,  the claims administrator will generally provide benefits from the onset.  If a claim is accepted, entitlement to TTD, PD, Medical Care, Vocational Rehabilitation benefits are all triggered.  There is not guarantee, however, that the claims administrator will always pay the benefits that the worker’s doctors say are indicated.  Claims administrators may dispute the findings of the worker’s doctors.  If that is the case, then the parties will go through dispute resolution which may entail the worker going to a neutral doctor, an Agreed Medical Examiner (AME), or a Qualified Injured Worker (QME).  If the issues are not resolved, then the parties can have the matter resolved via a hearing at the Workers’ Compensation Appeals Board.

Getting Medical Attention

Emergency Attention: If a worker needs emergency medical attention, the worker should  immediately contact their employer to see if they will provide treatment.  If the worker does received a timely response, they should seek medical attention through their health insurance provider or go to a local facility.  The worker should advise the health care provider that they are treating as a result of a work injury and that the facility should contact their employer with respect to payment for the services rendered.

Predesignation: Prior to any claim of injury, the worker can pre-designate a physician to treat them in event of an industrial injury.  If the worker wishes to do so, they should contact their human resources department of their company to do so.

Medical Control:  Once the worker has provided their employer notice of the claim, their employer should timely offer medical assistance.  If they do not, the worker can self-procure medical care.  If the worker has pre-designated, the worker can go to their own physician.  In some circumstances, medical control will have different rules if the employer has contracted with a state-certified health care organization (HCO.)

Transferring Medical Care:  After 30 days, the worker can transfer their treatment to a physician of their choice.  If the worker has been released by the company doctor with no provision for any further or ongoing care, the worker may not be able to transfer treatment.  It is recommended that the worker contact their claims administrator at that point to see if they will authorize the treatment.  Otherwise, at that point in time, the worker may have to go through the dispute resolution process concerning the determinations of the treating physician.  It is recommended that the worker contact either their claims administrator, an attorney or the I & A officer concerning it.  If there is a problem during the 30 days concerning the treatment provided, the worker can send a written letter to the claims administrator and demand a change in treating physician.  Currently, the treating doctor, in most cases, carries the presumption of being correct.  Therefore, it is important for a worker to  have a primary treating physician who is concerned with their desires and needs.

Release from Medical Care:  At some point in time, most injured workers are declared by their physicians to be “Permanent and Stationary”  This statement means that the worker’s medical condition has essentially stabilized.  It is not getting much better or much worse.  The worker’s  physician, at that point in time, will draft a “Permanent and Stationary” report.  This report will include factors of disability, work limitations, need for medical care, and need for vocational retraining.  These conclusions will generally determine what benefits the worker is entitled to and the amounts of such benefits.  If any of the parties dispute the findings of the treating physician, there is a dispute resolution process in which the parties may seek additional physicians to conduct examinations and issue reports concerning the pertinent issues of the case.

Legal Procedures and Issues

W.C.A.B. Hearings:

If the issues between the worker and the claims administator are not resolved by the agreement, the parties may proceed to the Workers’ Compensation Appeals Board to seek a hearing on the issues.  There are a number of hearings that can be held at the WCAB.  The common hearings are Pre-Trial Conferences, Mandatory Settlement Conferences, Trials, and Expedited Hearings.  Except for Expedited Hearings, which can only take place if the claim is accepted and on limited issues such as TTD payments, Medical Care, and Rehabilitation Appeal, hearings usually begin with a Conference upon which the issues are formulated.  The matters are then usually set for a Trial date.  At trial, the Judge will take into evidence the various medical reports, records, and other pertinent exhibits into the records.  Further, the Judge can hear testimony from various witnesses.  Unlike a civil trial, there is no jury.  The Workers’ Compensation Judge is the finder of fact and will determine issues of credibility and make a decision the record.  Generally, the WCJ has 90 days from the date of submission of the case to issue a Findings and Award on the case.

If the parties dispute the findings of the Judge, they may seek an Appeal to the Workers’ Compensation Appeals Board.  If they disagree with the decision from the Appeals Board, they may seek relief at the appellate courts.

Settlement: How are cases resolved

If a worker’s claim is resolved rather than tried, the forms of resolution are Compromise and Release and Stipulations and Award.  If the claim is resolved by Stipulations, the worker has the opportunity to re-open the case for new and further disability and seek additional benefits which may include additional periods of TTD,  PD,  need for medical care, vocational rehabilitation services, and/or death benefits.

Compromise and Release

A Compromise and Release is commonly known to lay people as the  “buy-out.” This is due to the fact that in most of the agreements, a number of rights are being “bought out.”  These rights may include the right for further medical care,  right to re-open, the right to claim injury in while participating in vocational rehabilitation, and the right to claim death benefits. Sometimes, the right for medical care may be provided for within the document.

Stipulations with Award

A Stipulation with Award generally allows the worker to re-open their case.  The worker may re-open the case within 5 years from the date of injury.  A re-opening is based upon whether there is new and further disability.  This re-opening will allow the worker to seek additional benefits.  Otherwise, the Stipulated Award allows the injured worker to maintain medical care as specified within the award.  A medical care award will remain in effect even if the worker leaves the company or business where they sustained the injury.   Further, the payments of benefits within a Stipulation are made in weekly payments as specified within the Labor Code.  After the Stipulation has been approved, the worker can file a request for a commutation to advance payments if there is some good reason which necessitates it.  There will be a charge related to commutation and it it within the Judge's discretion to approve it.

Discrimination: Termination and Other Forms of Discrimination

Labor Code Section 132a prohibits an employer from discriminate against a worker as a result of filing a workers’ compensation claim.  Civil and criminal penalties apply.  The W.C.A.B. has the power to reinstate and award back wages and benefits if it is indicated.  An employer, however, is allowed to defend itself.  An employer can argue that their actions were done out of  business necessity.  If an employer is successful in doing so, a discrimination claim may be defeated.

The discrimination can take place in many ways: termination, demotions, reduction of wages, reduction of benefits, or loss of privileges.  Each discrimination case is to be viewed upon a case to case basis.

Further, a worker also may be able to seek a discrimination claim through the DFEH or EEOC. See the Beyond Comp Section.  Also, an employer is not allowed to discriminate against an employer who is a witness to a claim.

There is a one year time limit to file the claim from the date of the discriminatory act.

Serious and Willful Misconduct

If the employer’s serious and willful misconduct was the cause of the worker’s injury, a claim for Serious and Willful Misconduct may be filed.  If successful, this can provide an increase in benefits to the injured worker up to a 50 percent increase in all compensation paid.  Willful misconduct means that the actions of the employer was beyond mere negligence.  This is an extremely complex area of the law and a lawyer should be consulted concerning whether this applies.  Further, there is a one year time limit to file a claim for Serious and Willful misconduct.

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