If you have a workers' compensation
or personal injury case, give us a call before you sign the settlement
papers. The opinion is free. Remember that insurance adjusters work for
insurance companies. It is not their job to give you helpful advice nor
to advise you of the true value of your case.
HOW MUCH WILL IT COST ME?
There
are no charges for workers' compensation, personal injury or social
security without a recovery. In workers'compensation the fees are set
by law and must be approved by a judge; they are usually 12%. In a
personal injury action the fees are negotiated by a contingent fee
agreement, and depend on the difficulty of the case and the chance of
recovery. Social Security fees are also a percentage of the recovery,
with a maximum, and must be approved by an Administrative Law Judge.
HOW DO I GET WORKERS' COMPENSATION BENEFITS?
California
workers who are injured or become ill because of work have the right to
receive workers' compensation benefits. Unfortunately, many workers
find that they lose their rights, are denied the benefits that they are
entitled to, or learn that they aren't getting all of their workers'
compensation benefits.
As soon as a worker knows or suspects
that they have a work related injury or illness, they should
immediately report it to the employer. Within one day after the injury
is reported, the employer must give the worker a claim form. Waiting to
report an injury or illness can cause a delay or denial of workers'
compensation benefits.
After the worker completes and turns in
a claim form, 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. In the case of a
dispute, the employer has the right to investigate the claim. If the
claim is not denied within 90 days from the date the claim is filed,
the injury is presumed compensatable. The injured or ill worker
should never be off of work without a written off work order from the
treating doctor. It is important that the doctor advises the employer
of the worker's disability status.
A claim which is not filed
until the worker has been notified that they are being terminated is
not valid under California law unless it can be shown that, before the
notice of termination, the injury had already been reported to the
employer, or that there is evidence of the injury in the employee's
prior medical records. In California, the injured or ill worker
has the right to representation by an attorney. A specialist in the
field of workers' compensation law will guide a client through the maze
of statutes and regulations that control the case. Consulting a
workers' compensation attorney costs nothing. If an attorney takes the
case, the fee will generally be 9-12% of any settlement or award at the
end of the case.
THE INSURANCE COMPANY IS PROVIDING ALL BENEFITS, SHOULD I WAIT TO HIRE AN ATTORNEY?
Unfortunately,
many injured workers wait until it is too late, or a crisis has
occurred, before they consider hiring an attorney. The injured worker
should consider the following facts: 1. The insurance company's interests are not the same as those of the injured worker. 2. The workers' compensation system is highly complex, with many procedural requirements and time limitations. 3.
The insurance company has attorneys who represent their interests
regarding the extent of your workers' compensation benefits. If an
injured worker retains an attorney, there is no charge for the
interview or for any services along the way. The attorney fee is 9-l2%
of any settlement or award at the end of the case (the fee may be l5%
in complex cases). If there is no settlement or award at the end of the
case, there is no fee. Therefore, the fee will not be any higher if the
attorney is retained at the beginning of the case.
Injured
workers usually consider retaining an attorney if they feel they are at
a disadvantage in dealing with the insurance company, or any time that
benefits are being denied. An injured worker should also consider
having an attorney when they are going to have a need for continuing or
lifetime medical care, or if they are going to end up with a permanent
disability.
If a worker has a permanent disability but does
not have an attorney, they are required to select a doctor off of a
three doctor panel. The claim will be resolved based upon that doctor's
report. Unfortunately, if the worker does not agree with this doctor's
opinion, they do not then have the right to get a second medical
opinion. Essentially, the injured worker is stuck with that doctor's
opinion. However, if the injured worker is represented by an attorney,
the attorney can refer the worker to any qualified medical examiner.
The attorney can select a doctor who will listen to all of the symptoms
of the injured worker and prepare a report for the injured worker, not
the company.
If the injury was caused by the negligence of
someone other than the employer or a co-employee, an injured worker
should consult with an attorney as soon as possible following an
injury. In that case, an injured worker may have the right to bring a
personal injury action in addition to a workers' compensation claim.
There are strict time guidelines in which a claim would have to be
brought. Merely because a person is continuing to receive workers'
compensation benefits does not mean that the statute of limitations
against the negligent party does not run. As a result, it is extremely
important that an attorney be consulted in those types of cases.
HOW LONG WILL THE EMPLOYER BE RESPONSIBLE FOR MY MEDICAL TREATMENT?
There
is no time limitation on the provision of medical treatment. The
employer or their insurance company is required to pay for medical
treatment within certain guidelines to cure or relieve from the effects
of the industrial injury. This treatment is required to be continued
for as long as it is medically necessary. This can be for months,
years, or even for the rest of the injured worker's life.
It
is extremely important that the injured worker be treated by a
physician who will be reporting for the injured worker rather than for
the employer. If the injured worker does not know a suitable free
choice physician, a workers' compensation attorney should be consulted
for a list of suitable physicians in the appropriate medical specialty.
CAN MY EMPLOYER TERMINATE ME WHILE I AM OUT ON DISABILITY?
The
law in California states that it is illegal to terminate or in any
manner discriminate against a worker as a result of their industrial
injury. If such conduct occurs, the employee may have their
compensation increased by one half up to a maximum of $l0,000.00, plus
costs up to $250.00, reinstatement on the job, and reimbursement for
lost wages and work benefits.
Proceedings under Labor Code
Section l32(a) for these benefits must be instituted by filing an
appropriate petition with the Workers' Compensation Appeals Board
within one year from the date of the discriminatory act or the date of
the employee's termination. Failure to file the appropriate petition
with the Workers' Compensation Appeals Board within the proper time
period will most likely prevent an injured worker from pursuing such a
claim.
Not every act by an employer is found to violate Labor
Code Section 132(a). There are several exceptions in which the
employer's actions against the employee are not found to violate the
law. For example, it has been found not to be discriminatory if the
employer's conduct was necessitated by the realities of doing business.
The issue of whether an employer's actions constitute a
violation of Labor Code 132(a) is a highly complex and technical legal
issue. Therefore, if an injured worker believes that they have
been wrongfully terminated or discriminated against, they should
consult with an attorney to be advised as to whether sufficient facts
and evidence exists to successfully pursue such a claim.
WHAT HAPPENS IF MY DOCTOR RELEASES ME TO LIGHT WORK, BUT MY EMPLOYER REFUSES TO GIVE ME LIGHT WORK?
Often
a treating physician will release an employee to limited kinds of work
before the healing period is over. If the employer does not provide
work within the doctor's restrictions, the worker is considered to be
temporarily disabled from their usual and customary occupation and
disability payments will continue.
If the worker returns to
modified work, but at less hours, or less pay than prior to the work
injury, the worker may be entitled to temporary partial indemnity on a
wage loss basis in addition to the worker's earnings during this
period.
If the partially disabled employee refuses an offer of
modified work, the refusal may be the basis for terminating payments of
temporary disability indemnity.
If the doctor releases the
injured worker to modified work on a permanent basis, then the employer
must either provide work within the restrictions, or provide vocational
rehabilitation benefits to assist the injured worker in finding other
work in the labor market.
WHAT TYPES OF SETTLEMENT ARE AVAILABLE?
There are two ways to resolve a workers' compensation case:
The
first type of settlement is called an Award. The Award differs from
other types of legal settlements in that the insurance company may
continue to be responsible for lifetime medical care to cure or relieve
from the effects of the industrial injury. Therefore, this form of
settlement is favored by injured workers who will need a significant
amount of future medical care, and are concerned as to who will be
responsible for the medical bills. In addition, the injured worker is
entitled to a monetary award for any permanent disability they may
have. The monetary award is payable weekly over a period of time. The
greater the degree of disability, the longer the payments continue.
The
second way to resolve a case is called a Compromise and Release. In
this form of settlement, the injured worker receives a lump sum of
money, but the case is over for good, and the injured worker is not
entitled to any future medical care. There can only be a Compromise and
Release if both the injured worker and the employer or insurance
company agree to settle on a specified amount. If there is no
agreement, then the injured worker is entitled to an award. In an
award, the injured worker has the right to reopen the case for new and
further disability within five years from the date of the award.
An
experienced workers' compensation attorney can advise an injured worker
as to which form of settlement is appropriate under the circumstances.
In the case of an Award, the attorney works to make certain that the
injured workers' access to appropriate future medical treatment is
preserved, as well as obtaining a monetary award. In the case of a
Compromise and Release, the attorney negotiates the highest settlement
amount possible.
WHAT IS THE AMOUNT OF ATTORNEYS' FEES IN A WORKERS' COMPENSATION CLAIM?
There
is no charge for the initial consultation in a workers' compensation
claim. Attorney fees are payable on a "contingency basis." This means
that if there is no recovery there is no fee. The attorney receives a
percentage of the settlement or award at the end of the case. If a
person chooses to be represented by an attorney, the attorney fees will
be deducted from the settlement at the end. Attorney fees normally
range from 9-l2% of the benefits awarded. The actual amount of the
attorney fee will depend upon the complexity of the case. In complex
cases, the fee may be l5%. The fee has to be approved by the Workers'
Compensation Appeals Board.
If the attorney also represents
the worker before the vocational rehabilitation unit, there may also be
a fee in connection with this representation. In that case, the
employer or insurance company generally withholds l2-l5% of the
vocational rehabilitation maintenance benefit as attorney fees. At the
conclusion of the rehabilitation process, the Workers' Compensation
Appeals Board judge determines whether the attorney receives all, part,
or none of the monies withheld.
There are no other fees or
costs charged. If the injured worker makes a complete recovery, and
therefore receives no settlement or award, there is no charge for the
attorney's services.
