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Ask The Attorney: Workers’ Compensation

Here are attorney James Sexton’s answers to some commonly asked questions about workers’ compensation. To get legal guidance about your specific situation, please call our firm at 619-678-1833 or contact us online. We offer free consultations in Chula Vista and Oceanside.

Should I hire a lawyer to help with my work injury claim?

Workers’ compensation law is ever-changing. Every year it seems they are changing something else. Years ago work restrictions were dependent on what kind of impairment a person would get. Could they do light lifting, moderate lifting, heavy lifting? All those different adjectives were equivalent to certain amount of percentages, whether it be 5 percent, 10 percent, 15 percent disability or impairment. They have totally done away with that older system and have replaced it with a whole bunch of different formulas and calculations.

It is like a maze of going through the system, and the normal person would certainly feel overwhelmed. I would say nine times out of 10, the clients who come to my office for consultation end up becoming clients. They are here because they are overwhelmed with the whole system. It is not a perfect system by any means. It has a lot of flaws in it, but it is the only thing we have to work with here in California.

Adjusters for the insurance companies are hard-pressed to keep costs down, to keep payouts down, to keep treatment down, and to deny things if they can deny them. When they do things like that, it is the attorneys’ job to counteract that and get the treatment that the injured worker should have. And, get the temporary disability that the worker should have, and get the type of impairment rating that means the money the person should get.

They recently changed the vocational rehabilitation. Now the attorneys basically do not have a lot to do with vocational rehabilitation, but there are still many rules that need to be followed in working up the case so the client, the injured worker, does not lose that benefit entirely. There are certain time limits and time frames they need to request vocational rehabilitation. Now they have put a two-year cap on it. If you do not request it within two years from the finalization of your case, you lose it, where before there was no deadline or ceiling on it.

When things are denied, you have to appeal them where before, you would go to a medical evaluator to determine whether the person should get an MRI or six physical therapy visits. They have done away with that aspect of it, and they go through more of an appeal process with doctors who are appointed by the state to review these appeals. So, there are deadlines with those, too. They have to be submitted in a certain amount of time, and invariably the injured worker without an attorney always misses those deadlines, always misses what they should be doing to work the case. Sometimes they come to our office and they are just mired in a hole. It seems like a deep hole full of mud.

As an attorney, my job is helping people basically to get them unstuck, get them moving in the direction they need to get their case moving and get them the benefits they deserve.

I had one case where you are also entitled to get reimbursed for your mileage. This person had been trying to represent himself without an attorney. He did not have an attorney and was not represented for about two years, and he did not know that. The first thing we did was just backtrack. We got a list of all of his doctor’s appointments and calculated the amount of miles from his house to the doctor’s office and back and submitted all the forms. It was just a matter of getting a list of his appointments that the doctors could easily provide us with. He just gave us all the dates he was there, and that total came to $884. It was not a huge amount, but it is still $884 that we got him. He never would have gotten it, as we noticed this and asked if he had been submitting his mileage forms. “Mileage forms? What are you talking about? What are mileage forms?”

So, it can be something even little like that where we can help people, and that is what makes me feel good about my job. I represent injured people and just help them get what they deserve. The workers’ compensation system certainly has flaws in it, it is not a perfect system, but it is all we have to work with. We want to make sure we are maximizing everything we can for our clients and getting them what benefits they deserve.

What are the workers’ compensation laws in California?

The workers’ comp law in California is basically that all employers are required to have workers’ compensation insurance. That is the first thing. It is a state system. Basically the legislators vote on certain parameters in the workers’ comp. For example, in workers’ compensation it is all about impairment. You are given money on how your injury impairs your ability to work. You do not get money for pain and suffering like you would in a car accident. In workers’ compensation it is all about how your injuries are impairing your ability to work.

The workers’ compensation insurance company for the employer is responsible for paying the medical bills. In a car accident that is ultimately the victim’s, the client’s responsibility; that comes out of his settlement. That is part of the money that has to be paid out of his settlement, which is part of medical bills.

In workers’ comp, the workers’ comp insurance is responsible for the medical bills. The workers’ comp insurance also pays what is called temporary disability if the injured worker is unable to work for a certain period of time. That temporary disability is generally two thirds of the worker’s average weekly wage. So, if I was earning $600 a week gross before they took out taxes, the workers’ compensation insurance company would give me $400 tax-free, which is two-thirds while I was unable to work.

The third thing the workers’ compensation laws do in California is give you a monetary award for your impairment. They call it permanent disability. They give you a percentage of permanent disability but it is really impairment. So, if you get a 10 percent permanent disability rating, it does not mean you are 10 percent permanently disabled. What it really means is that if you hurt your back and there are 100 representative jobs out there in California, you are not going to be able to do 10 out of those 100 jobs, i.e., 10 percent because of your back. Not every one of those 100 jobs out there requires people to lift 100 pounds all day long, but because of your back injury you might not be able to lift 100 pounds all day long, for those 10 percent of the jobs that have that lifting requirement.

Because you are not going to be able to do those 10 jobs, that is worth money. They have a little chart. The legislators vote on this and 10 percent might equal $10,000 and 20 percent might equal $30,000. It does not have to do with pain and suffering. It is about your impairment — how your injury is impairing your ability to work in those representative 100 jobs.

To give a sort of silly example you could lose your eye at work and that seems like a big deal, “My gosh, I only have one eye,” but in the workers’ comp setting, it is about how many of those hundred or so jobs can you still do well with just one eye. And, believe it or not that type of rating comes up between 20 and 25 percent in the jobs that you cannot do. Those 20 to 25 out of 100 jobs, maybe 25 percent, are the ones that require good depth perception like computer chip manipulations and watch repairs and things of that nature. In the workers’ comp setting, there are still many jobs you can do with one eye.

What happens if a doctor says an employee is unable to return to work after an injury sustained at work?

The first is what is called a cumulative trauma injury that happens over time. Those are commonly seen in people who do a lot of data entry. They develop carpal tunnel syndrome in the wrists. When it first started those symptoms couple of years ago, they were very minor and it was just like nothing, but then over time, they got worse and worse and worse until the poor person could not even type anymore. That is what is called a cumulative trauma injury. And then a specific injury would be the box fell on my wrists and then my wrists hurt.

Under the workers’ compensation law in California, cumulative trauma and specific injuries are treated the same way with the same types of benefits. So, if you cannot go back to work because you got hurt on the assembly line either from cumulative trauma injuries or specific injury, or you cannot go back to standing all day long on the conveyor belt on that assembly line, you have to be retrained in a different field. We had a client who literally worked on an assembly line when she was injured, and now she is the chef at San Diego Marriott in downtown San Diego. That was good because now she is a lot happier in a career and making much more money.

Sometimes, there are silver linings in these work injuries. Interestingly enough what there is not in workers’ compensation are costs. As I mentioned previously, there are no costs and no medical bills. The insurance is responsible for that. So, if you see Dr. Smith and his bill is $1,000 and workers’ comp only pays $600 of that bill, nobody can come after you for that $400 balance. Not Dr. Smith or the workers’ comp insurance can make you pay that. That is between the workers’ comp insurance and Dr. Smith to resolve. You are totally out of the loop on that.

There is also no cost for filing fees or getting your records or any other costs that might be associated as in a civil case like a car accident where there will be filing fees and costs to get your medical records and costs for this and costs for that. There is none of that in workers’ compensation. But, there is no pain and suffering that can be the biggest component in a personal injury case. So, that is pretty much what we are talking about in workers’ comp in California.

Then the last benefit is if your injury prevents you from going back to work, you are entitled to something called vocational rehabilitation. Workers’ compensation insurance has to retrain you in a different field. So, for example, if I was an assembly line worker and from standing all day long my back became injured from repetitive standing, or I was an assembly line worker and a box fell on my back and injured my back.