Pain And Suffering – Workers Compensation in California

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 for “pain and suffering” 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 framework 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 cover. Workers’ Compensation benefits cover periods of temporary disability and provides for permanent disability payments. Temporary disability benefits compensate Injured Workers when they are unable to perform their job while they recover from their injury. Permanent Disability benefits 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 to the Evaluation of 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 with respect to incorporating the aspects of “pain and suffering” within the assessment of 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 as well. Sometimes, however, 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 being evaluated by a Qualified Medical Evaluator, 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 stressful 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” is 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 or under a Psychiatric Disability using the GAF. This quantification should be 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.

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