When you are injured on the job, you become involved in a system you are not familiar with, and can easily become confused over what your rights are, what needs to be done, and how long things take to happen. To provide a brief overview of the system, we have prepared a simplified discussion of common questions about lawyers and the workers' compensation system.

Do I need an attorney?

In some cases, an attorney may not be necessary. If you are receiving all benefits, and the injury is not too severe, a consultation with an attorney may be all that is required to insure that all is proceeding well. However, remember that the Insurance Company has professional claims adjusters and attorneys working on their side, but this is probably your first experience trying to cope with a complicated system of laws and requirements. You do not have to do it alone. In most cases, the benefit of having legal representation far outweighs the cost.

How much does a workers' compensation attorney charge?

The benefits of having an expert on your side are enormous. The system was designed so that there is no cost to you at the time your retain an attorney in workers' compensation. Instead of trying to figure out each and every step by yourself, you can simply let an expert handle all the details for you. Generally, the attorney fee will be deducted from your settlement and paid by the Insurance Company directly to the attorney, so there is no out of pocket expense to you. Usually the fee is from 12% to 15% of the Award, and this can only be paid after a Workers' Compensation Judge determines the amount is fair and orders it to be paid. There may also be a fee charged for the work performed by the attorney in vocational rehabilitation, but this benefit ended in 2003, so very few workers will be affected at this time.

What should I do if I am injured on the job?

Report the injury.

The most important thing to do is to immediately report all injuries to your supervisor, even if at the time, you do not feel that the injury is too bad, then follow up with Human Resources or the Personnel Office if there is one in your company. The employer is required to give you a form to fill out called the Employee's Claim For Workers' Compensation Benefits, or DWC Form 1. You fill out the first 8 lines and the employer the other 10, then you are provided a copy. Be sure to ask to be sent to the company doctor right away.

Types of Injury

There are two types of industrial injuries. The most common is a specific injury, for example, a slip and fall where you injure your knee. The second is called a continuous trauma, which usually develops with repetitive motions over time. The most common example of this type of injury is "carpal tunnel syndrome" where pain and numbness develops in the hand and fingers from constant use throughout the day, such as packing, computer entry, etc. This type of injury can also be caused by repeated heavy lifting for a back injury, or repeated overhead work for a shoulder injury. A continuous trauma is just as valid as a specific injury.

Whose fault was it?

Workers' compensation is a no fault system, which means that once it is accepted that you were injured on the job, you are automatically entitled to benefits.

What type of benefits am I entitled to after an injury?

Once your injury is reported to your company, the employer's workers' compensation insurance carrier or administrator usually takes over handling the claim. You should receive letters from the carrier with information on benefits, doctor appointments, etc.

Medical Care

One of the most important benefits is the right to medical care for your injury, and this can last the rest of your life, if necessary. Your benefits may include free doctors, medication, physical therapy, chiropractic treatment, appliances, from wrist splints to wheelchairs, etc., and even reimbursement for mileage at 50.5¢ per mile for travel related to your injury beginning 1/1/08; earlier mileage rates are lower.

However, a new law requires that an injured worker select a doctor from the insurance company's approved doctor list, the Medical Provider Network. You must call your claims adjuster, or your attorney, to select a doctor from their list. Usually, there are a few patient oriented doctors on the list, but you need to call a local attorney to find out which doctors would be favorable to the worker instead of the insurance company.

Another new issue is that all requests for treatment made by your doctor must be screened by "Utilization Review". This means that if your doctor recommends medication, or therapy, or any other type of procedure, the Insurance Company's doctors can review the request and say "NO", which is what they do most of the time. Your remedy? Your doctor can file an appeal to Utilization Review, but as he oe she is busy trying to provide treatment to the patients, they might miss the 20 day deadline, or not even be aware of the denial until too late. This is expecially critical if your doctor recommends back surgery, because now the insuance company is entitled to a second opinion before authoriziing surgery.

Temporary disability

If a doctor takes you off work because of your work related injury, you should receive temporary disability from the workers' compensation carrier, usually 2/3 of your average weekly gross wages. For example, if you earn $15.00 per hour, and work 40 hours per week, your average weekly wage is $600.00. Two thirds of this amount is $400.00. There are maximum and minimum amounts of temporary disability. For example, temporary disability rates in 2008 can be as high as $916.33 per week.You should be paid temporary disability until a doctor declares your condition stabilized, or "permanent and stationary".

Unfortunately, a law passed in 2004 limits receipt of temporary disability to 2 years from the date of injury, even if your just had surgery! Apparently, this law has been modified to allow 2 years of temporary disability within 5 years from the date of injury, but note, the time frame for receipt of temporary disability has been substantially limited.

Permanent disability

If, after treatment is completed, the part of the body that you injured is not the same as it was before the injury, you should be entitled to receive permanent disability. The idea is to provide you compensation, or money, for your diminished ability to compete in the open labor market because of your work injury. The amount depends upon the extent of your disability; the greater your disability at the time you are released by the doctor, the more money you will receive. Bear in mind, however, that most of the time, the amount your case is worth cannot be determined until the final doctor's report is received and rated.

Again, under the law passed in 2004, for injuries sustained after 2005, a new systmen of evaluation was instituted, using the American Medical Association Guielines. Unfortuately, this system provides benefits that are greatly reduced from the old system, and allows deductions from your Award for previous injuries to siimlar parts of the body that were not allowed under the earlier system.

Vocational Rehabilitation

Before 2003, if a doctor said you cannot return to your regular duties because of your injury, you woudl have been entitled to vocational rehabilitation. For dates of injury after 1/1/03, it is possible to give up your right to vocational rehabilitation for up to $10,000.00 cash in some cases. For dates of injury after 1/1/04, vocational rehabilitation has been eliminated. A "voucher" system has been enacted which does provide limited educational expense reimbursement.

What if my claim is denied?

Never file a false claim. You could face criminal charges and go to jail. Sometimes, however, even on a legitimate claim, if you do not report your injury right away, or the employer or insurance company has reason to doubt your claim, they may deny your claim or delay acceptance of the claim for up to 90 days after notice of your claim. If you are unable to work, you may apply for State Disability Insurance benefits and usually, you will be able to collect SDI until your workers' compensation claim is accepted or denied. If your claim is accepted, the workers' compensation carrier will refund the State for your benefits, and if it is denied, you are entitled to SDI for a non-work related injury anyway. You may also go to a doctor through major medical insurance through your employer or spouses employer. A denied claim should almost always be handled by an attorney, because it will most likely involve hearings before the Workers' Compensation Appeals Board.

What is a certified specialist? What are the requirements for an attorney to become a certified specialist in workers' compensation law?

Usually, an attorney who is a certified specialist devotes his entire practice to the one area of law he specializes in.

The requirements to becoming a certified specialist in Workers' Compensation law are many. In addition to being an active member of the State Bar, the attorney must pass a separate bar examination in the field of workers' compensation law. At least one fourth of the attorney's practice must be in the field of workers' compensation, and he must fulfill a yearly continuing education requirement to remain current in workers' compensation law. He must also establish that he has performed at least 200 pretrial practices and procedures; at least 20 trials; 5 appellate proceedings; and other hearings regarding ratings, medical issues and vocational rehabilitation. He must also provide references from three judges or attorneys familiar with his work product.

You should bear in mind that usually, a certified specialist in workers' compensation law will not cost you any more than a non-certified attorney, as the attorney fee is set by the Judge in your case.

What if I still have questions about workers' compensation?

Generally, it is best to speak to a local attorney who is familiar with your area. If your live in Riverside or San Bernardino counties, feel free to call our office at 951.682.4904 and we will do our best to assist you, without cost or obligation unless and until you retain our office to represent you. Remember, you will not pay us anything out of your own pocket, ever.