WORKERS’ COMPENSATION INFORMATION 2006 TABLE OF CONTENTS

  1. WORKERS’ COMPENSATION REFORM AND WHAT IT MEANS TO YOUR CASE
     

  2. TYPES OF WORKERS COMPENSATION MONEY BENEFITS
     

  3. MEDICAL TREATMENT – WHO GETS TO CHOOSE THE TREATING DOCTOR
     

  4. WARNING! – TIME LIMITATIONS –WORKERS COMPENSATION CASES
     

  5. WARNING! – TIME LIMITATIONS ON OTHER TYPES OF CASES – WORKERS COMPENSATION REPRESENTATION ONLY
     

  6. TELEPHONE CALLS AND ATTORNEY AVAILABILITY
     

  7. IT IS VERY IMPORTANT THAT YOU TELL US AND ALL OF YOUR DOCTORS ABOUT ALL THE CONSEQUENCE OF YOUR INJURY.
     

  8. IT IS VERY IMPORTANT THAT YOU GIVE ALL DOCTORS AND LAWYERS A COMPLETE AND ACCURATE HISTORY OF YOUR CURRENT INJURY AND ALL PRIOR INJURIES AND HEALTH PROBLEMS.
     

  9. AGREED MEDICAL EVALUATOR’S (AME) AND PANEL QUALIFIED MEDICAL EVALUATORS)  QME
     

  10. REASONS WHY YOU ARE NOT GETTING MONEY
     

  11. HOW TO GET MONEY WHEN THE INSURANCE COMPANY IS NOT PAYING YOU
     

  12. HOW TO GET MEDICAL CARE WHEN YOUR CLAIM IS DENIED
     

  13. INSTRUCTIONS FOR GETTING STATE DISABILITY BENEFITS
     

  14. WHY DOES IT TAKE SO LONG TO GET INTO COURT?
     

  15. ADVANCES
     

  16. DEPOSITIONS
     

  17. KEEP YOUR ATTORNEY ADVISED OF YOUR CURRENT ADDRESS AND PHONE NUMBER
     

  18. IT IS VERY IMPORTANT THAT YOU ATTEND ALL DOCTOR’S APPOINTMENTS SET BY THIS OFFICE AND THE INSURANCE COMPANY.
     

  19. MILEAGE EXPENSES
     

  20. OUT OF POCKET MEDICAL EXPENSES
     

  21. PREPARING FOR LIFE AFTER TEMPORARY DISABILTIY ENDS AND YOU HAVE REACHED MMI.
     

  22. BEWARE OF THE INSURANCE COMPANY/EMPLOYER
     

  23. CHILD SUPPORT, SPOUSAL SUPPORT AND WORKERS’ COMPENSATION BENEFITS
     

  24. EMPLOYER PROVIDED GROUP HEALTH INSURANCE/FRINGE BENEFITS
     

  25. SOCIAL SECURITY DISABILITY (SSDI/SSI) AND MEDICARE
     

  26. DISABILITY DISCRIMINATION UNDER THE FAIR EMPLOYMENT AND HOUSING ACT
     

  27. TOP TEN WAYS TO SCREW UP YOUR WORKERS COMP CASE ARTICLE

  28. INTRODUCTION 

    I thank you for the confidence that you have expressed in my office by choosing me to handle your workers compensation case. 

    PLEASE KEEP AND REFER TO THIS LETTER BEFORE CALLING OUR OFFICE.  IT SHOULD ANSWER MOST OF YOUR QUESTIONS.  THIS PAMPHLET CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS/OBLIGATIONS AND TIME/STATUTE LIMITATIONS UNDER THE WORKERS COMPENSATION SYSTEM AND OTHER CASES OUTSIDE OF WORKERS’ COMPENSATION.  YOU ARE CHARGED WITH NOTICE OF THE ENTIRE CONTENTS OF THIS PAMPHLET.  IT IS VERY IMPORATNT THAT YOU READ IT.   

    DUE TO RECENT CHANGES IN WORKERS COMPENSATION LAW WHICH HAVE REDUCED FEES AND INCREASED THE COMPLEXITY OF HANDLING CASES, TIME AVAILBLE FOR ME AND MY STAFF TO TALK TO CLIENTS ON THE PHONE IS VERY LIMITED.  PLEASE READ THIS PAMPHLET BEFORE CALLING AS IT WILL LIKELY ANSWER YOUR QUESTIONS. 

  1. WORKERS’ COMPENSATION REFORM AND WHAT IT MEANS TO YOUR CASE

    On April 19, 2004, Senate Bill 899 (SB899) became law.  SB 899 is the most radical change to workers’ compensation law since the system was formed in 1911.  The following are the major changes from past law. 

     

    a.      The employee can no longer get treatment from a doctor of his or her choice.  The employee must receive treatment in the employer’s medical provider network (MPN) during the entire claim subject to certain limited exceptions. 

b.      The time limit on receiving temporary disability benefits (a weekly benefit that replaces 2/3 of average weekly earnings during the healing/treatment period) has been reduced from five years to two years.  Please note that the two-year limit starts from the first benefit payment.  If you receive a check the day after your are injured, return to work, and then are taken off work eighteen months later, you will only get six months of temporary disability payments.  Therefore, it is important to try to resolve your claim within the two-year time limit.

    c.       Medical treatment is now very limited.  Before SB 899, there was no limit or guidelines for medical treatment.  Now, most treatment decisions are determined by the use of guidelines called American College of Occupational and Environmental Medicine (ACOEM).  Also, physical therapy, chiropractic, acupuncture, and occupational therapy are limited to 24 visits per claim.  Obtaining optional medical prescriptions such as mattresses and gym memberships are now very difficult to obtain from an MPN doctor.  Also, treatment decisions are now reviewed by a utilization review process, which can take two weeks or more to make a decision. 

    d.      There is no more vocational retraining.  In the past, workers were trained for a new occupation when it was determined that they could not return to their old job as a result of the injury.  Now, if workers are not back at their at injury job after 60 days from the last payment of temporary disability, AND the injury causes permanent disability, they can qualify for a voucher for retraining expenses from $ 4,000 to $ 10,000.  Please note that the worker gets none of this money.  It goes directly to the school or program.   

    e.      The method of determining permanent disability benefits has been radically altered.  Permanent disability benefits are supposed to reflect long term diminished earnings capacity of similarly situated workers.  In reality, the computation is now based largely on the American Medical Association Guidelines to the Evaluation of Permanent Impairment, 5th Edition.  Pain is given very limited consideration and the rating schedule as it exists does not come close to reflecting diminished earnings capacity for many injuries.  We may need to use vocational experts to prove true diminished earnings capasity. 

    f.       Soft tissue and other minor injures that cause pain but are not supported by objective findings or diagnostic testing will now likely receive NO or very little permanent disability benefits.  The days of getting a settlement of several thousand dollars, a year of treatment, disability payments and a vocational rehabilitation plan for a soft tissue claim are gone.  Subjective problems are no longer enough to support an award of permanent disability or justify medical treatment and temporary disability longer than two to three months. 

    g.       Meaningful penalties for delayed benefits have been eliminated.  Unfortunately, many benefits and treatments are either delayed or denied now that the insurance companies no longer have any incentive to provide timely benefits.   

    h.      The employer is now responsible only for permanent disability directly caused by the injury.  As a result, your past medical and injury history will now be looked at very carefully.  Any intentional attempt to conceal or lie about your past medical and injury history will be detrimental to you claim and may cause the employer to report you to the local District Attorney for Workers’ Compensation Fraud.  The employer can reduce your permanent disability by the percentage of the disability being caused by factors other than the injury.  This is called apportionment.  California now permits apportionment of permanent disability to pre-existing asymptomatic and previously non disabling conditions as long as it is supported by substantial evidence.  This aspect of the workers compensation reform is very controversial and is the cause of much dispute and delay of claims. 

    i.         Once you are determined to have reached maximum medical improvement by the treating doctor (released from active ongoing medical care), you have to look for work.  Please see the section titled PREPARING FOR LIFE AFTER TEMPORARY DISABILTIY ENDS AND YOU HAVE REACHED MMI.   

    J.        For additional information on the reformed workers’ compensation system, please visit the website www.viaw.org  

    The most important thing you need to know about the new workers’ compensation system is that it is very different from the old system.  Whatever friends and relatives tell you about workers’ compensation cases that they had in the past no longer applies in the new system. 

2.         TYPES OF WORKERS COMPENSATION MONEY BENEFITS

  1. TEMPORARY DISABILITY – Temporary Total (TTD) or Temporary  Partial (TPD)

An injured worker is entitled to receive TTD benefits if the effects of the injury cause the worker to be unable to perform their regular job, the employer has no modified/alternate work, and the employee has a doctor’s note indicating that they are TTD. 

TTD benefits are owed 14 days after the employer is notified that the worker is TTD.

No TTD benefits are owed if the only period of disability is three days or less.

The total period an injured worker can receive TTD benefits is during a period of 104 weeks from the first payment of TTD benefits.  NOTE that the injured worker is not entitled to receive 104 weeks of actual payments, they are entitled to receive payments during a period of 104 weeks beginning with the first payment.  If a worker returns to work for 50 weeks and then goes off work again, they will only be entitled to 54 weeks of TTD payments.

Temporary partial disability (TPD) is paid to an injured worker who works but does not earn am amount equal to their temporary disability rate.

The temporary disability rate is 2/3 of average weekly earnings. 

Currently (2006), the minimum weekly rate is $ 126 per week for workers earning $ 189 and below.

Currently (2006) the maximum weekly rate is $ 840 per week. To qualify for the maximum rate, the injured worker must have average weekly earnings of $ 1,260.  Maximum rates for temporary disability will be higher in future years because rate increases will be tied to increases in the state average weekly wage. 

If you are receiving TTD two years after your injury and your were paid at the maximum rate, please call this office so that we can make sure you are receiving the correct amount of temporary disability.  You may be entitled to receive TTD and the increased adjusted rate.

Temporary disability benefits end when the MPN doctor, treating doctor, AME or QME reports that you have reached maximum medical improvement (MMI).  Temporary disability benefits will end at the 104 week limit, even if the doctors say that you are still temporarily totally disabled and have not yet reached MMI.
 

      B.        PERMANENT PARTIAL DISABILITY (PPD) 

Permanent disability benefits are met to compensate the injured worker for long term diminished future earnings capacity directly caused by the effects of the injury.

In most cases, in order to qualify for PPD benefits, you will have show that you have rateable impairment as defined by the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition (AMA Guides).

The AMA Guides ignore the effect of pain and subjective complaints.  As a consequence, 37% of cases that received a PPD rating under the old California rating system receive NO PPD rating under the AMA Guides.  In many cases, PPD benefits are 40% to 70% lower using the AMA Guides than under the old California rating system.

The AMA Guides gives detailed instructions to the rating doctor on how to determine an impairment percentage for injuries to the various parts of the body.  The introduction to the AMA Guides explains that the term “impairment” is not the same as “disability.”  An injured worker may have impairment under the AMA Guides and be entitled to a PPD award and be able to return to the same job they had before they were injured.  It is also possible that an injury that receives a zero or low rating under the AMA Guides may be very disabling as to prevent the injured worker from retuning to their prior job.

Many injuries are rated under the AMA Guides by measuring loss of range of motion on the date of the examination.  Consequently, how you feel on the day of the examination and the impact the medications you are taking on the date of the rating examination can have an impact on the AMA Guides rating in a given case.

Not every injury requiring a surgery will result in a PPD rating under the AMA Guides.  Injured workers are evaluated based on how well they are on the day of the rating examination.  Consequently, how you feel on the day of the examination and the impact the medications you are taking on the date of the rating examination can have an impact on the AMA Guides rating in a given case.

PPD benefits are supposed to start 14 days after the last payment of temporary disability.  In many cases, there are gaps in between these two benefits.

PPD benefits are payable at the following weekly rates (neutral rates) for 2006 and later dates of injury: 

Ratings between 1% and 69% - $ 230 

Ratings between 70% and 99% - $ 270

PPD benefit rates are increased by 15% if there is no return to work offer within 60 days of reaching MMI and the employer has 50 or more employees at the start of the workers compensation insurance policy.

PPD benefit rates are decreased by 15% if a return to work offer is made to the injured worker.  This applies to all employers, regardless of the number of employees.

If a worker is terminated or laid off within 12 months of MMI, than the worker receives PPD at the increased 15%

If a worker is rated at 70% or greater, they will also receive a life pension weekly payment.  The life pension is payable at weekly rates (2006 and later dates of injury) between $ 77.31 and 301.50 depending on the percentage of disability.  The life pension weekly payment will increase based on increases in the State Average Weekly Wage.   The life pension payment starts after the regular permanent disability award is paid and continues thereafter for the remaining life of the injured worker.

Please note that while the disability is permanent, in almost all cases, the permanent disability benefits do not last for the duration of the permanent disability.  The disability is permanent, but the benefits are not permanent.

C.         PERMANENT TOTAL DISABILITY – 100% Disability

         If an injury causes a complete loss of future earnings capacity, the injured worker is entitled to receive weekly payments payable at the temporary disability rate in effect at the time of their injury for the reminder of their life.

          Very few injuries will qualify for this type of award.  The use of the AMA Guides in rating disabilities makes it very difficult to reach 100% disability.  It is anticipated that use of vocational experts will be required to establish a complete loss of earnings capacity.

          THERE WILL BE FAR FEWER 100% DISABILITY CASES UNDER THE NEW PERMANENT DISABILITY RATING SYSTEM.

         The use of the new AMA Guides rating system is just beginning in California.  It is anticipated that there will be changes as we gain more experience using the AMA Guides.

D.         SUPPLEMENTAL JOB DISPLACEMENT VOUCHER (SJDV)

        Vocational Rehabilitation benefits were eliminated for workers injured on or after 01/01/04.  THERE IS NO MORE VOCATIONAL REHABILITATION.

In place of vocational rehabilitation, the legislature enacted the Supplemental Job Displacement Voucher (SJDV). 

THE INJURED WORKER GETS NO MONEY IN THEIR POCKET.

The voucher is to be used by the injured worker to pay for tuition, books, and supplies.  If the injured worker wants to use the voucher, they will have to have other resources to pay for living expenses and transportation to and from training.

To be eligible for the SJDV, the injury must cause permanent disability and the injured worker is not employed at the at injury employer 60 days after the last payment of temporary disability benefits.

The amount of the SJDV depends on the percentage of permanent disability.  The amounts are as listed below: 

$ 4,000 for permanent disability between 1% and 14%

$ 6,000 for permanent disability between 15% and 25%

$ 8,000 for permanent disability between 26% and 49%

$ 10,000 for permanent disability between 50% and 99% 

If the injured worker wants to have help from a vocational rehabilitation counselor in finding a school or vocational goal, they will have a difficult time finding a counselor who will help them because counselors are limited to receiving on 10% of the total voucher as fees. 

THIS OFFICE ALSO WILL NOT ASSIST INJURED WORKERS WITH USING THE VOUCHER DUE TO NOT BEING ABLE TO BE COMPENSATED FOR THIS SERVICE.

 

E.         DISCRIMINATORY ACTIONS BY THE EMPLOYER

     

          Please call this office immediately if you learn that your employment has been terminated by your employer.  Don’t confuse termination of employment with your employer telling you that they have no work for you because of your injury.  If you are terminated, your employer will tell you that you are fired.

          If the termination is for reasons connected with your injury (such as not being able to perform your job due to your injury) or retaliation for getting medical treatment for filing your workers’ compensation claim, you may be entitled to receive additional benefits such as an increase in benefits of 50% up to $ 10,000 and reimbursement for lost wages and work benefits caused by the acts of the employer.  Reinstatement to the job is also possible.

          The time limit for filing a claim for this type of benefit is one year from the discriminatory act.

F.         PENALTY FOR DELAYED BENEFITS

          The penalty for unreasonable delay and refusal of benefits has been significantly reduced by the workers’ compensation reform.  Before the reform, an injured worker could get a ten percent penalty on the entire benefit being delayed, past, present, and future.  Often, injured workers obtained multiple penalties under the old statutes.  The old penalty system was irrational and often lead to award of significant sums of money.

          Under the current law, the penalty for unreasonable delay can be based on up to 25% of the amount delayed.  If the delay is discovered by the employer and the employer pays 10% of the amount delayed, than there is no other penalty.  In practice, the Judges at the Appeals Board will rarely award more than 10% on the amount delayed. 

          In summary, penalties for unreasonable delay could be significant before the reform, but have now been significantly cut back to the extent that they are almost meaningless deterrence to unreasonable delay by the insurance company.

    LOOK UP TIME LIMIT FOR PENALTIES 

    G.         SERIOUS AND WILLFUL MISCONDUCT 

    H.         DEATH BENEFITS  

3.       MEDICAL TREATMENT – WHO GETS TO CHOOSE THE TREATING DOCTOR

One of the most important changes in Workers Compensation is that the injured worker is no longer allowed to treat with any doctor of their choice.   In most cases, the injured worker is required to treat with a doctor who is a member of the employer or insurance company’s medical provider network (MPN).  An injured worker can treat with any doctor who is a member of the MPN.  This office has an extensive list of participating MPN doctors.  I will do my best to direct you to the MPN doctor who will give you the best possible care within the limitations of the MPN.

If your claim is denied, or you were not timely provided with medical treatment after your injury, you are entitled to treat outside the MPN.  In certain circumstances, you may be able to treat outside the MPN if your case is admitted. 

In all cases, the injured worker is limited to 24 physical therapy, 24 chiropractic, and 24 occupational therapy visits per claim.  The days being off work and getting 3 PT visits per week for one and a half years are over.  However, if the injury requires surgery, than the insurance company may, but is not required to, authorize additional therapy.

Medical treatment is limited by the American College of Occupational and Environmental Medicine Practice Guidelines (ACOEM).  ACOEM assumes that all human beings will respond in the same way to medical treatment.  In practice, the ACOEM Guidelines are wrongfully applied by the insurance company to deny care.  This causes major delays and denials of care.

When a doctor makes a request for medical treatment, diagnostic test, medical appliance, or other medical procedure, the insurance company may direct these requests to a utilization reviewer.  This reviewer will not examine or talk to the injured worker.  In many cases, this reviewer will not even talk to the treating doctor.  Many times, the reviewer will be an out of state doctor, chiropractor, or osteopath employed by the insurance company.  The reviewer will look at notes and reports, and make the treatment decision based on ACOEM.  Absent a life threatening situation, the insurance company has 14 days from the receipt of the information to make a utilization review decision.  PLEASE DO NOT CALL THIS OFFICE ABOUT DENIED TREATMENT UNTIL 19 DAYS HAVE PASSED SINCE THE DOCTOR MADE THE TREATMENT REQEUST.

In summary the 2004 workers’ compensation reform changed medical care in California’s workers’ compensation system from being a system where the injured worker could obtain all the medical treatment he/she wanted form any doctor of their choice to a system of limited doctor choice and limited treatment options.  The injured worker should expect treatment not much better than an HMO plan.  Out of control medical costs were a major reason for the dramatic workers’ compensation reform.
 

4.         WARNING! – TIME LIMITATIONS – WORKERS COMPENSATION CASES

     

5.        WARNING! – TIME LIMITAITONS FOR OTHER TYPES OF CASES– WORKERS COMPENSATION REPRESENTATION ONLY

          There are time limitation for filing other lawsuits.  These time limitations are called statues of limitation.  Failure to file within the statute of limitations will most likely prevent you from prevailing in these other lawsuits.

This office represents you only for your workers’ compensation claim unless we have signed a separate agreement indicating that we are representing you in a third party civil case in Superior Court, a discrimination action before the EEOC or DFEH, or a discrimination action in Superior Court.

          A Summons and Complaint for personal injury against a party other than your employer or co-workers who are engaged in the course and scope of employment (Third Party) must be filed at the correct Superior Court branch within two years of the date of the accident or occurrence.

          If the third party being sued is a public entity, a special claim form must be filed with that public entity within six months of the accident or occurrence.

          For claims before EEOC and DFEH, a complaint must be filed with those agencies within one year of the discriminatory conduct.  Before you can file a discrimination complaint in Superior Court, you must file a complaint with EEOC or DFEH.  After obtaining a right to sue letter, a summons and complaint must be filed no more than one year after the date of the right to use letter in the correct branch of the Superior Court.

         THIS OFFICE WILL NOT BE FILING COMPLAINTS IN ANY OTHER LEGAL PROCEEDING OTHER THAN IN YOUR WORKERS COMPENSATION CASE.  WE ONLY REPRESENT YOU IN YOUR WORKERS COMPENSATION CASE UNLESS WE HAVE AN AGREEMENT STATING OTHERWISE.

     

6.         TELEPHONE CALLS AND ATTORNEY AVAILABILITY

 The changes to workers’ compensation law have made cases more complex and time consuming to handle.  Attorney fees for many workers compensation cases were not generous under the old system and are now reduced by 50% or more under the new system for most claims.  As a result of these developments as well as my need to keep current on the large volume of mail that I receive each day, attend a large number of depositions, conferences, and communicate with claims adjusters and defense attorneys, I MUST limit the time I spend on the telephone with my clients.  You will be speaking to my staff most of the time.

     I will try to have calls returned the same or next day.

     Please note the following before calling the office:

     

a.       Read this information letter to see if it answers your question(s).  Also read at the FAQ’s on www.iadvocate.net

b.       If you call, please give my secretary a very brief and to the point message.  They have other calls to answer as well as other tasks to tend to.  If it is a simple question and they know the answer, they will try to help you.

c.        When leaving a message, please do not leave a vague message.  I need a brief message so that either my secretary or I can answer your question quickly.

d.       Please limit calls regarding case status.  If you are getting medical treatment and temporary disability benefits and there is no current dispute, there is no need to call for status.  You will usually know that status of your case by the appointments we set, and the deposition and court notices you receive.

e.       Please do not call our office to see if we received a letter if our name appears on a list at the bottom of the letter or appears on a service list.

f.        This office receives letters and notices from the workers’ compensation appeals board.  There is no need to call my office to see if we received these letters.

     

g.       If your case has gone to trial, there is no need to call this office to see if the Judge has issued a decision.  You will get the Judge’s decision the same time we do.  May times, it can take a few months for a Judge to issue his decision.

h.        There is no need for you to call my office to tell me what doctors have told you or what treatment you are receiving.  The insurance company has to provide me with this information.

i       If you have a dispute regarding treatment inside the medical provider network, please try to solve that problem with the MPN (Medical Provider Network) doctor first as our ability to help in this regard is limited.  If you continue to have a dispute as to treatment or diagnosis, then please call my office and I will follow the procedure for such disputes.

j.         Please do not call my office regarding late benefit payments unless they are more than four mailing days late.  Due to the high volume of phone calls, we will not call the insurance company before the four-day period.  Payments can be delayed by delays at the post office during high volume mailing periods such as the winter holidays and tax filing periods.

k.        Please call the adjuster yourself for the status of medical mileage reimbursements and out of pocket medical reimbursements of under $ 300.00.  Due to the changes in the workers’ compensation law and the elimination of meaningful delay penalties, we can no longer pursue these claims until the end of your claim.

l.        Please do not call regarding a delay in treatment until more than 21 days have passed since the treatment was requested.  Utilization review has 14 days from receipt of the information to approve or deny the treatment request.

m.      Letter sent to you by the insurance company are sent to this office if our name is listed at the bottom of the letter.  Unless the letter does not list our name or address at the bottom, there is no need to call the office about these letter.

7.       IT IS VERY IMPORTANT THAT YOU TELL US AND ALL OF YOUR DOCTORS ABOUT ALL THE CONSEQUENCE OF YOUR INJURY. 

    The system for evaluating permanent disability has been radically changed by the workers’ compensation reform.  As a result, not only is the original injury important, but all the impacts of the injury are now more important to consider than they were under the old permanent disability rating system. 

    Common complications that are caused by the more severe injuries are the following: 

    a.        Psychological problems such as depression and anxiety caused by pain or loss of occupational, functional, or decreased ability to perform activities of daily living (ADL’s). 

    b.         Difficulty with sleeping caused by the effects of the injury or the psychological issues that in turn are caused by the injury. 

    c.         Aggravation or acceleration of pre-existing conditions such as hypertension, diabetes, coronary artery disease, or other medical condition. 

    d.         If your work involved prolonged exposure to dust or dirt, you should consider if your lungs or breathing have been impacted. 

    e.         If your work involved prolonged exposure to noise and you have ringing in your ears or difficulty in hearing, you should consider if you have a hearing loss claim. 

    f.          Other areas of the body may be impacted by medical treatment.  Medications may create side effects or other conditions that result in ratable impairment under the AMA Guides.  Surgery complication may also result in other conditions that result in ratable impairment under the AMA Guides. 

    g.         You will be given a Review of Systems worksheet.  It is important that you keep this sheet and refer to it from time to time.  If it needs to be updated, please call my office immediately. 

    h.         Do not overlook anything regarding your heath or its impact on ADL’s.  It is your body, you know best what is going on.  Don’t cheat yourself out of benefits to which you are legitimately entitled to by missing potentially significant ratable AMA Guides impairment. 

8.        IT IS VERY IMPORTANT THAT YOU GIVE ALL DOCTORS AND LAWYERS A COMPLETE AND ACCURATE HISTORY OF YOUR CURRENT INJURY AND ALL PRIOR INJURIES AND HEALTH PROBLEMS.

    The following is a list of common mistakes make by clients when dealing with doctors and lawyers in Workers’ Compensation and Personal Injury cases. 

    1.    Not telling the doctor about prior personal injury, automobile accident, workers’ compensation claims and any injury that has occurred during your injury. 

    2.   Omitting prior claims, accidents, work injuries and non-industrial injuries because the client believes that they are not relevant to the current case or because the client believes the prior problem was minor. 

    3.    Giving the doctor an incomplete or inaccurate history of the current injury. 

    4.    Giving the doctor an incomplete or inaccurate account of current non-industrial conditions as well as prior injuries, accidents, personal injury claims, workers’ compensation claims, claims for Social Security Disability, and prior non-industrial accidents or conditions. 

    5.    Not telling the doctor about all their complaints and problems in the beginning of the case. 

    6.    Giving different dates for the date of injury to different doctors. 

    I can’t emphasize enough the importance of a complete and accurate history in your case. The value of your case is heavily dependent on the quality of the reports of your physicians. If these reports contain a false or inaccurate history, a Judge might disregard these reports. A false and inaccurate history is also very detrimental to your credibility before a Workers’ Compensation Judge. Giving a false and inaccurate history may be detrimental to your case. 

    In many cases, the defendant will search the index system for past injury claims, interview co workers and past employers, investigate your group health insurance claims or take your deposition to investigate your prior medical/accident/litigation history. They will use this information to subpoena records of prior accident/injury/litigation/medical treatment claims. If there are prior claims, accidents, hospital treatment, or relevant non-industrial conditions, the chances are high that the insurance company will discover them. It is much better for you to reveal this information now than to have this information revealed after your doctors have written reports with false and/or inaccurate histories. 

    Note:

    This aspect of the case is the one that you have the most control over. If you give a complete and accurate history to your doctors, resolution of your case will be quicker, easier, and far less stressful for all involved. 

9.        AGREED MEDICAL EVALUATOR’S (AME) AND PANEL QUALIFIED MEDICAL EVALUATORS)  QME

          Almost all claims will either have an agreed medical evaluator (AME) or Panel Qualified Medical Evaluator (QME).

          Neither the injured worker nor the insurance company can have the injury evaluated by a doctor of their choice.  The parties must either agree on a doctor to evaluate the claim (AME).  If the parties are unable to agree which doctor to use, one of parties (most often the injured worker) must send a letter to the DWC Medical Unit.  The Unit will generate a list of three doctors from their computer and send it to the parties.  One of these doctors will be the Panel Qualified Medical Evaluator (QME).  That doctor will be used to resolve the issues in the case.  It takes about 45-60 days to get the list from the Unit and another 20 days to determine which doctor of the three will evaluate your case.

          These examinations are very important to the outcome of your case.  It is important that you tell these doctors all of your complaints, relating them to your employment/injury, but you must also be careful not to lead the doctor to believe that you faking, malingering, or merely pursuing your case to obtain as much money as possible.

          FAILURE TO ATTEND THESE EXAMINATION OR TO REMAIN AT THE DOCTOR’S OFFICE UNTIL THE EXAMINATION IS COMPLETED WILL RESULT IS SUBSTANIAL DELAY IN YOUR CASE.

          PLEASE ALLOW AT LEAST 4 TO 6 HOURS TIME FOR THESE EXAMINATIONS.

10.        REASONS WHY YOU ARE NOT GETTING MONEY

    a.       The insurance company/employer is investigating your claim.  They have 90 days to accept or deny the claim.  It is not possible to get a hearing at the Workers’ Compensation Appeals Board (WCAB) during this time. 

    b.        Failure to attend medical appointments can result in your benefits being cut off or delayed. If you can’t show up please notify doctor and reschedule. 

    c.        Failure to perform modified/alternate work that the MPN doctor says you can perform and that the employer is offering will result in your not getting workers’ compensation benefits.  The bitter truth is that you will either have to work in pain until we can obtain a medical opinion and a conference date at the Board or not get any money.  This process can take two to five months. 

    d.       If your injury is denied, an Agreed Medical Evaluation (AME) or a Panel Qualified Medical Evaluation are required to determine the issue of compensability of the claim.  Neither party can obtain their own medical opinion.  This can cause significant delays.  See Section XX for more information on AME’s and QME’s. 

    e.       Delays occur in the processing of mail at the post office. Such delays can cause a check to be one to five days late. This occurs during the holiday season and tax time when the post office handles a higher than usual volume of mail. Also please take in consideration the weekend and holidays in which the post office is closed.  If your check does not arrive five days after the expected time, please call our office. At that time please call and we can report the check as lost and/or place a stop payment. (If you do receive your check and we do place a stop payment, you cannot cash it, and you will have to return the check in order to receive a new one.)             

    REMEMBER:  IF LIABILITY IN YOUR CASE IS ACCEPTED AND BENEFIT PAYMENTS ARE LATE, PLEASE DO NOT CALL THIS OFFICE UNTIL THEY ARE AT LEAST 5 DAYS LATE 

    When calling about late benefit payments, we must have the following information: 

    The type of benefit payment:  Temporary Disability, Permanent Disability, Medical Mileage, Medical Expense Reimbursement. 

    If you are calling regarding a late payment of medical mileage or medical expense reimbursement, we will need the date of the reimbursement request.  If 70 days have not passed since the reimbursement request, the payment is not late.  The insurance company has 60 days to make these payments. 

11.      HOW TO GET MONEY WHEN THE INSURANCE COMPANY IS NOT PAYING YOU

If your claim is denied or the insurance company refuses to pay benefits when the employer is not offering modified work, if you have paid into state disability, you should be able to get money from the Employment Development Department (EDD).  EDD pays state disability benefits (SDI) to people who can’t perform their regular job for up to one year.  EDD requires that a doctor sign a form saying you are disabled.  EDD may require you to attend an examination to continue benefits (IME examination).  You must attend the IME exam if you want to continue to receive SDI.

If you are employed by state, county, or city government, you should apply for non-industrial disability leave benefits.

Do not apply for unemployment benefits.  By applying for unemployment, you are saying that you are not disabled and can work at any job.

     

If you are receiving workers compensation benefits at a rate higher than your SDI weekly rate, you cannot receive both SDI and workers compensation payments.  This is considered workers’ compensation fraud. 

If your SDI weekly rate is higher than your weekly workers’ compensation rate, you can receive a difference payment from EDD.  EDD will pay you the difference between your weekly SDI rate and your weekly workers’ compensation rate.  If you feel your weekly workers compensation rate is too low, please call our office.  Please also call EDD to see if you can receive a difference payment.

This office does not handle EDD appeals.  You will have to do this yourself.  The telephone number for EDD is (800) 480-3287, Espanol (866) 658-8846.

If you can’t get any benefits, you will have to find a job.  You need to be careful about finding a job that does not exceed your physical ability.  If the physical requirements of the new job greatly exceed the level of activity that the evaluating doctors say you can perform, this can be harmful to your claim.

12.      HOW TO GET MEDICAL CARE WHEN YOUR CLAIM IS DENIED

          If your case is denied by the insurance company, the workers compensation insurance company  will not pay for medical treatment until either the claim is accepted or a workers’ compensation judge orders the insurance company to pay for medical treatment.  As a result, it may take a long time to get the workers’ compensation insurance company to pay for medical treatment in a denied case.

          If you are covered under your group health insurance, your spouse’s insurance, or are covered under a government program such as Medicare or MediCal, you can get treatment under those policies or programs.  Once you let the group health insurance or government program know that the workers’ compensation insurance is refusing to provide medical treatment or a particular medical procedure or surgery that is required, they have to provide you with the medical treatment.  You should be prepared to give these entities your workers’ compensation case information so that they can file a lien for medical treatment in your workers’ compensation case.  This lien is not a lien against your compensation. 

          You may be able to find a doctor who will provide treatment and wait to be paid later.  That doctor will file a lien in your case.  This lien is not a lien against your compensation. If asked by the doctor, you should sign the green lien form so they can file a lien for medical treatment in your workers’ compensation case.

          If your claim is accepted, but the workers’ compensation insurance company refuses to provide treatment such as a surgery or medications, you should also attempt to obtain payment for treatment from other insurance or government programs if available.  You will obtain this treatment much quicker waiting for an AME, QME, or Workers Compensation Judge to make a decision in your case.

         If your private insurance is refusing to pay for treatment that is being denied by the workers’ compensation insurance company, please call this office immediately so that you can be referred to an attorney who specializes in bad faith insurance claims practices.

13.        INSTRUCTIONS FOR GETTING STATE DISABILITY BENEFITS

         If your pre-injury paychecks indicated payment into the State Disability Fund (SDI), you may be entitled to receive State Disability Insurance benefits if the workers’ compensation insurance carrier denies your claim or stops paying benefits.  SDI benefits are paid by the Employment Development Department (EDD). 

          To apply for SDI, you will need to obtain an application.  You can get the form from your local EDD office of go online to http://www.edd.ca.gov/fleclaimdi.htm.  You can also call EDD at 1-800-480-3287 or Espanol 1-866-658-8846.  

          When completing the state disability form, you must make sure that the following phrase is on the form, or if there is no room, use a separate sheet attached to the form which reads as follows:

          “I have retained representation for my workers’ compensation claim through the law offices and the workers’ compensation insurance is refusing to pay benefits.”

          It is also important that you indicate on the state disability form that your injury is work related.

It is also important that you indicate that date of the onset of your disability was the first time you were placed off work, not the date you are applying for SDI.  This is important because you may be applying for SDI because you have exhausted your 104 week period of temporary disability, yet you are still disabled and under medical care.

          A doctor must also certify that you are entitled to SDI benefits.  You will need to take the SDI form to the doctor.

         SDI may be paid after temporary disability benefits are cut off, delayed, or denied.  If you are cut off from temporary disability, you should immediately apply for SDI benefits.

         This office does not handle applications or appeals for state disability benefits.

14.       WHY DOES IT TAKE SO LONG TO GET INTO COURT?

    The answer to this question is that there are several time periods, which must expire before we can apply for a hearing at the Workers’ Compensation Appeals Beard. There can be no hearings during the first 90 days after the date of injury where the insurance company is investigating the claim. Another reason is the difficulty of getting timely medical appointments with AME’s or QME.  AME or QME reports are often required before a hearing can be requested.  Under the new law, a medical evaluation by an AME or QME is now required to resolve the issue of the compensability of the injury.  This causes further delay. 

    Before a trial can occur, a conference must take place in most cases.  It takes at least two months from informal attempts to resolve the case until we are given a conference date.  In most cases, nothing is resolved at the conference and the case must be set for trial.  It takes at least two months to get to trial.   

15.      ADVANCES

    This office, as well as other workers’ compensation offices, does not give cash advances to clients, as we are not permitted to do this under state bar rules.  

    IF YOUR CLAIM IS DENIED, THERE IS NO CHANCE OF AN ADVANCE FROM THE INSURANCE COMPANY. 

    There is a small chance that you could get an advance from the insurance company. If you claim is admitted and you are receiving temporary disability benefits, your chance of receiving an advance is poor. Since you are receiving two thirds of your income tax free you should not need an advance. Additionally, if your doctor has not declared you permanent and stationary, there is no permanent disability benefit on which to give you an advance/ 

    If your doctor has declared your condition to be permanent and stationary, the chance of a permanent disability advance is still poor because insurance companies do not want to give advances. 

    You should not look to your workers’ compensation case to solve your immediate financial problems or for extra cash in case of emergency. The insurance carrier has no legal obligation to advance more money then you are entitled to receive under the law.  

    If you want to request an advance, we will mail a letter to the insurance company with a copy to your address. If there is no reply to the letter, it means that the insurance carrier has decided not to give you an advance. Please do not call this office regarding the advance request after we have mailed the advance request letter. 

16.     DEPOSITIONS

    Often the insurance company/employer will decide to take your deposition prior to your case being heard in court or prior to your being referred to an AME or QME. A deposition is a meeting at which the defense attorney will ask you questions about your injury, medical history, past accident history, and other questions under oath before a court reporter.  The court report will record the questions and answers in a written transcript.  These depositions are very important therefore, you must be sure to be present at your deposition(s) one hour early as specified on your appointment letter sent to you so that you may be properly prepared.  

17.      KEEP YOUR ATTORNEY ADVISED OF YOUR CURRENT ADDRESS AND PHONE NUMBER

    Many times our client will move or change their phone numbers, without advising this office. The result in not keeping this office updated with this information is missed hearings, depositions, doctor appointments, etc., such missed appointments and hearings will inevitably result in a delay of the resolution of your claim. Therefore, always keep this office advised of any changes of address or phone numbers. If you are going to be out of town for any prolonged period of time be sure to advise us of a phone number or address where you may be contacted. Please notify your local post office of your recent change of address. Also, if you are unsure of your residence and you want to secure the receipt of your mail we recommend a P.O. Box. 

18.      IT IS VERY IMPORTANT THAT YOU ATTEND ALL DOCTOR’S APPOINTMENTS SET BY THIS OFFICE AND THE INSURANCE COMPANY.

          You must attend all appointments that this office sets for you.  Failure to these appointments may result in your benefits being stopped.  This will result in delays in your case.

              Failure to attend treating doctor appointments and MPN doctor appointments will results in your benefits being stopped.  A report confirming your disability status is required every 45 days to have temporary disability benefits continued. 

               Agreed Medical Evaluator (AME) and Panel Qualified Medical Evaluator (QME) examinations will be required in your case.  These exams are the most important.  Your attendance is REQUIRED.  FAILURE TO ATTEND MAY RESULT IS TERMINATION OF BENEFITS OR A COURT ORDER SUSPENDING ALL BENEFITS.

               If you are receiving state disability, the Employment Development Department (EDD) may schedule an evaluation (IME) to determine if you qualify for state disability,  Failure to attend these IME evaluations will result in your not getting state disability payments. 

              If for any reason, you are unable to attend an AME, QME, or other appointment set by this office or the insurance company, please call the doctor’s office immediately and at least 48 hours before the appointment.  Failure to do this may result if YOU being charged for this appointment at the end of your case. 

19.        MILEAGE EXPENSES

         You are entitled to travel expenses at .44 per mile (2006 rate) from the insurance carrier for your travel to and from medical appointments and therapy when a claim is admitted by the insurance carrier.  If your claim is denied and later becomes admitted, you can file medical mileage claim.           

           The insurance company will not pay for medical mileage for treatment/evaluations that are considered unreasonable, excessive, or for denied portions of your claim. 

  1.           Mileage costs are not paid for travel to the Board or travel to vocational evaluators. 

         This office no longer sends medical mileage claims to the insurance company.  You should send these to the insurance company directly. 

If 55 days have not passed since the reimbursement request, the payment is not late.  The insurance company has 45 days to make these payments.

Due to the elimination of meaningful penalties and the inability to obtain attorney fees for a trial on mileage and expense reimbursements, if the insurance company does not pay timely, the issue of medical mileage and medical expense reimbursement will have to wait until the entire case is ready for trial.

20.       OUT OF POCKET MEDICAL EXPENSES

         If you must pay out of pocket for medical treatment, medication, or other medical expenses, it is good idea to keep a record with the date of those expenses were incurred, and name of the doctor who recommended or required said expenditure.  Attach copies of canceled checks, receipts and bills to this record.  Be sure to mail a copy to this office.  ALWAYS keep a copy of anything you send or give to this office.

         If you make a claim for reimbursement without attaching evidence that you paid the expenses, there can be no reimbursement.

         Included with this letter is a form for you to write down your medical expenses.  Please submit the reimbursement requests using this forma and by attaching copies of evidence showing that you paid these expenses.

          If your claim is denied, you will not receive reimbursement until the case is determined to be compensable.

If 55 days have not passed since the reimbursement request, the payment is not late.  The insurance company has 45 days to make these payments.

Due to the elimination of meaningful penalties and the inability to obtain attorney fees for a trial on mileage and expense reimbursements, if the insurance company does not pay timely, the issue of medical mileage and medical expense reimbursement will have to wait until the entire case is ready for trial.

21.      PREPARING FOR LIFE AFTER TEMPORARY DISABILTIY ENDS AND YOU HAVE REACHED MMI. – What to do after you have been released from treatment.

          The time will come when you are found to have reached maximum medical improvement (MMI).  What this means is that further medical treatment is not reasonably expected to improve your level of medical impairment of functioning.

          At this point, your bi-weekly temporary disability benefits will end.  You will now most likely be paid permanent disability advances at a maximum weekly rate of $ 230 per week (2006 rates).  In some cases, the insurance company will stop all payments because there is a medical opinion that you have ZERO ratable impairment under the AMA Guides.  In other cases, the permanent disability payments may not last more than a few months because of low impairment ratings.

         In many cases, our office will contest these low ratings where there is a good argument that the rating should be higher.  However, this takes time and you need money to live.

         You have the following options, which should be attempted in the following order.

  1.     You should always contact your employer to ask if they have a job that you can perform.

  2.     If your employer claims that they have no job for you or they refuse to cooperate in giving you a modified/alternate job that that accommodates your disability, you may have a viable claim for disability discrimination with the Department of Fair Employment and Housing.  Contact my office immediately if the employer refuses accommodations.

  3.          In the event you are unable to return to work at your employer, you have no other option but to look for a job with another employer.  You will have to do your best to find a job that is compatible with your disability.  Unfortunately, you have no other alternative because the vocational rehabilitation benefit and maintenance allowance that once cushioned the blow of not being able to return to work at the same employer is no longer available to the injured worker. 

22.        BEWARE OF THE INSURANCE COMPANY/EMPLOYER

         The insurance company/employer is simply a business.  It does not consider you as a person, but as a claim number and a liability.  The only consideration is how to minimize expenses and maximize shareholder return.  For that reason, the insurance company/employer will do everything it can to minimize the amount of disability payable to you.  Sometimes, insurance companies resort to hiring private investigators that hide out in trucks taking video of an injured worker performing activities which are inconsistent with the injury or impairment being claimed.  Sometimes, an investigator will interview neighbors, friends, and co-workers. 

The insurance company may send you to an MPN doctor(s) or attempt to obtain a panel QME opinion that that will most often say that there is nothing wrong with you or that your problems are unrelated to your employment, or that you have no or minimal ratable impairment.  This is expected and the Judges at the Board are aware of this practice. 

Do not sign any record release authorizations sent to you by the insurance company.  Do not sign any record release authorizations given to you by any doctor’s office or anyone other than this office.

23.       CHILD SUPPORT, SPOUSAL SUPPORT AND WORKERS’ COMPENSATION BENEFITS

          IF YOU ARE UNDER A COURT ORDER OF CHILD/SPOUSAL SUPPORT, AND YOU ARE INJURED, YOU SHOULD IMMEIDATLEY CONTACT THE CHILD SUPPORT AGENCY OF THE DISTRICT ATTORNEY’S OFFICE AND REQEUST A MODIFICATION OF THE SUPPORT ORDER.

         You will need a modification of the support order because you will have a decreased ability to comply with the Court’s Order due to reduced income.

         If requested by the District Attorney, the workers’ compensation insurance company MUST withhold up to 25% of each compensation payment.

         At the time of settlement of your case, the district attorney will have filed a lien against your compensation.  If you want a lump sum settlement, the district attorney will not be limited to 25% of the lump sum.  The district attorney can take an amount equal to the unpaid and support obligation that has accrued since the beginning of your temporary disability.  GET A SUPPORT MODIFICATION AS EARLY AS POSSIBLE TO AVOID HAVING A LARGE PART OF YOUR SETTLEMENT TAKEN BY THE DISTRICT ATTORNEY AT THE END OF YOUR CASE.

         Once there is a district attorney lien, there is very little this office can do to minimize the amount deducted from benefits payments of lump sum settlements.  If you have a dispute regarding the support order or amount being deducted, please call your spouse or the district attorney.  DO NOT CALL THIS OFFICE AS THERE IS NOTHING WE CAN DO ABOUT YOUR SUPPORT ISSUES.

24.      EMPLOYER PROVIDED GROUP HEALTH INSURANCE/FRINGE BENEFITS

          In many cases where an injured worker has been off work due to an injury for a number of months, the employer will terminate the employee’s group health/life benefits.  Under Federal law (ERISA), the employer must give the employee notice that their group benefits are going to be terminated and give the employee the opportunity to a monthly amount of money to keep these benefits current.  This benefit is call the COBRA benefits.  You will be given 60 days to decide whether to elect to continue your group benefits under COBRA.  If you do not elect within 60 days or fail to make the required monthly payments, your group benefits will be terminated.

         If the employer has terminated your group health benefits, but never gave you the notice of termination and the opportunity to continue coverage under COBRA as outlined above, please contact this office immediately and we will refer you to another lawyer who handles these matters.           

         Group health and other fringe benefits are governed by Federal law.  The Workers’ Compensation Appeals Board has no jurisdiction over these issues.  The workers’ compensation insurance company will not reimburse you for COBRA payments.  If you are unable to afford to keep your COBRA benefits in effect and current, you will loose your group benefits.  There is nothing this office or the Workers’ Compensation Appeals Board can do to protect these group benefits.

         It is an unfortunate reality that a work injury often results in the loss of employer provided health benefits for the injured workers’ entire family if they are unable to pay the monthly COBRA payment.

25.        SOCIAL SECURITY DISABILITY (SSDI/SSI) AND MEDICARE

    The Federal Government provides benefits to people who are unable to work due to physical and/or medical problems through two programs. 

    Social Security Disability Insurance (SSDI) 

    You may qualify for SSDI payments if you have a medical condition that prevents you or is likely to prevent you from engaging in substantial gainful employment for a year or more.  Substantial gainful employment is not as easily definable term. 

    To be considered precluded from substantial gainful employment a claimant must be able to prove one or more of the following: 

a.         Not be gainfully employed. 

b.         Have a severe impairment. 

c.         Impairment will last 12 months or more or result in death. 

d.        Satisfy the requirements of a medical listing from the Code of Federal Regulations 

e.       Prove that you are unable to perform any of the jobs you held during your last 15 years of working.  This is known as past relevant work. 

f.        Prove that you are unable to perform any other job that is available in national or local economy in reasonable numbers based on your transferable skills and educational level. 

g.         If you are age 50-54, a limitation to sedentary work may be sufficient to qualify. 

h.         If you are 55 or older, a limitation to light work may be sufficient to qualify. 

i.        If you are unable to speak English, the age categories in d and e shift down five years. 

j.          Have a sufficient amount of quarters paid into the social security system within the last five years. 

k.        If you are younger than age 50 and are unable to meet a medical listing, your chances of getting SSDI will be difficult absent a showing of significant impairment. 

Supplementary Security Income (SSI) 

SSI is a poverty program for people who do not qualify for SSDI.

    If you are age close to age 62 and you qualify for SSDI, you should apply for SSDI benefits instead of taking early retirement at age 62.  By receiving SSDI until age 65, you will avoid most of the decrease in regular social security retirement benefits that results from early retirement. 

    In most cases where SSDI benefits are awarded, you will be eligible for Medicare coverage within 36 months from the date you were found to be disabled by the Social Security Administration (SSA). 

    It is important that if Medicare/MediCal pays for medical treatment that is part of your workers’ compensation clam, that these governmental agencies be notified that this treatment is for a workers compensation claim.  Under the Medicare Secondary Payer (MSP) rules, failure to take Medicare’s interest into account or failure to reimburse Medicare can result in Medicare seek reimbursement for their costs from you or denying you future medical care under the Medicare program.  

In most cases SSA will deny your application for SSDI.  Your application will also most likely be denied at the reconsideration level.  At that point, you will have to request a hearing before an administrative law judge (ALJ) at the Office of Hearings and Appeals (OHA).

My office has significant experience in representing claimants before the OHA.  If you have a serious medical condition or combination of conditions that your doctor(s) tell you are likely to prevent you from engaging in substantial gainful employment for a year or more or you have been off work for a year or more, please contact my office so that we can determine if you should apply for SSDI.

26.      DISABILITY DISCRIMINATION UNDER THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT (FEHA)

         Vocational rehabilitation was eliminated for injuries occurring on or after 01/01/2004.  Now, an injured worker needs to attempt to return to work with their at injury employer.

          California has a law called the Fair Employment and Housing Act (FEHA).  Under this law, the employer is required to meet with an employee who has a disability (either work related or non work related) and attempt to find either a modified job at the same rate of pay or an alternate position at the prevailing rate of that position that is compatible with the disability.  This meeting is called the interactive process.  If an employer fails to engage the employee in this interactive process or insists that the employee cannot return to work unless they have a doctor remove all work restrictions, the employer is in violation of FEHA and can be subject to significant legal liability in certain cases.  However, it should be noted that the employee should make an attempt to contact the employer and tell the employer that they want to return to work at that employer.

         The employer is not require to accommodate a disability that is severe enough that accommodating the disability would create an undue hardship on the employer, create a danger to the employee, or a danger to other employees.  In addition to undue hardship, if the employer can prove that there are no modified/alternate positions available, than the employer will likely prevail in a disability discrimination claim under FEHA.

         If you have tried to return to work with your employer after reaching MMI and your employer has not engaged in an interactive process or simply insists that they will not take you back unless you have no work restrictions, call this office immediately so we can determine if you have a viable FEHA claim.

         An important factor in evaluating a potential FEHA claim is the desire of employee to return to work either with the at injury employer if the at injury employer is cooperative or with a different employer.  The employee must be prepared to document their job search efforts.  This is called mitigation of damages.

         The following remedies are available to an employee in a FEHA case.

  1. Reinstatement of job with at injury employer (Case settles). 
     

  2. Back pay – lost earnings caused by the failure to accommodate.
     

  3. Front pay – Future projected loss of earnings caused by the failure to accommodate. 
     

  4. Emotional distress damages.
     

  5. Attorney fees and costs in addition to the above remedies.

Claims before EEOC and DFEH, a complaint must be filed with those agencies within one year of the discriminatory conduct.  Before you can file a discrimination complaint in Superior Court, you must file a complaint with EEOC or DFEH.  After obtaining a right to sue letter, a summons and complaint must be filed no more than one year after the date of the right to use letter in the correct branch of the Superior Court.

27.      TOP TEN WAYS TO SCREW OF YOUR WORKERS’ COMPENSATION CASE ARTICLE

    By Elise Beraru

    In seventeen years as an applicant attorney, I have represented hundreds of injured workers. It has never been easy, but in the last two to three years it has become impossibly difficult. The general business climate, the State budget deficit and the financial difficulties brought on by insurance carriers lowering premiums and losing money in the stock market have made employers reluctant to settle even admitted injuries. But so many workers' compensation cases lose value because the injured workers themselves sabotage their own claims.

    With apologies to David Letterman, I present my list of "Top Ten Ways to Screw Up Your Workers' Compensation Case" and why.

    10. DON'T ATTEND MEDICAL APPOINTMENTS: When you don't go to the doctor your attorney selects for you, or stop going before you are released, your attorney cannot get the medical evidence necessary to prove your case. When you don't go to the defense doctor or agreed medical examiner, your case takes longer to settle because you can't go to court until all the medical evidence has been received.

    9. DON'T SHOW UP FOR DEPOSITIONS AND HEARINGS: When depositions and hearings have to be rescheduled because you don't show up, it wastes your attorney's time, the court's time and the insurance carrier's time and money. If you miss hearings, the judge can order your benefits stopped or your case dismissed. If you will be unable to appear at a deposition or hearing, tell your attorney immediately so the event can be rescheduled.

    8. CALL YOUR ATTORNEY EVERY DAY: The litigation process can be slow. Attorneys often have court appearances that keep them out of the office. They do their best to get answers and return calls as soon as possible, but when you call every day, often more than once per day, you get a reputation in the office as a troublemaker and you'll end up on the bottom of the priority list. Unless it is an emergency, try to limit your calls to one per week.

    7. ABUSE VOICE MAIL: Keep your phone messages as brief as possible. Be sure to always give your name and full telephone number, including area code, so your attorney can call you from outside the office. Don't try to tell the entire story of your case in a voice mail message (or take up several voice mail messages). Keep your message very brief.

    6. BE VAGUE: Nobody expects you to have a perfect memory, but when you suddenly can't remember any names, dates, activities and other details, you become unbelievable as a witness. The more specific you can be, the better the record and the more beneficial the result.

    5. LIE: Perjury--lying under oath--is a felony, but there are other kinds of lies. Not giving a complete medical history to a doctor. Not telling your attorney about previous injuries. Not telling your attorney that you have other workers' compensation cases with another attorney. Claiming not to remember details when the defense attorney asks that you remembered perfectly when your own attorney asked you. All of these lies can hurt your credibility as a witness and harm your case. They can sometimes leave you open to being investigated for insurance fraud, another felony.

    4. THREATEN YOUR ATTORNEY: You hired your attorney to represent you and use his/her best legal judgment. Threatening your attorney that you'll file a complaint with the State Bar or with threats of violence against the attorney or any staff member is the easiest way to find yourself without an attorney. If your attorney is performing services in an unethical way you should contact the State Bar, but telling your attorney, "File this petition" or "take this person's deposition or I'll report you to the State Bar," will generally cause the attorney to petition the WCAB to be relieved as your attorney.

    3. COMPARE YOUR CASE TO "SOMEBODY ELSE YOU KNOW WHO GOT MORE MONEY": Every case is evaluated and resolved based on the type of injury, the extent of permanent disability, the age, occupation and average weekly wage of the individual injured worker, as well as the potential value of future medical care. Also, people do exaggerate the amount of their settlements to try to impress you. So there are a number of reasons why someone else you know claims to have received more money "for the exact same injury."

    2. REFUSE TO COMPROMISE: Litigation requires negotiation and compromise. You may not get every penny you think your case is worth, but your employer and the insurance carrier will always think they are paying more than you deserve. It can take several appearances to get to trial and a multiple day trial can take months to complete. Consider how many days of work you may lose, plus the possibility of receiving less money after a trial than with a negotiated settlement. The Workers' Compensation Appeals Board is organized to prefer settlements over trials. Additionally, insisting that "only the judge can tell me what my case is worth" is insulting to your attorney, who you have hired to use his or her legal expertise to determine what your case is worth and negotiate a settlement.

    And the Number One way to screw up your workers' compensation case:

    1. DEMANDING "JUSTICE": An old legal saying is "there is no justice, only money." Workers' compensation cannot change the way your employer manages its business or trains its supervisors. It cannot get your abusive supervisor or co-worker reprimanded or fired. It cannot make the workplace safer or the workload easier. The workers' compensation system cannot guarantee to restore your physical condition to what it was before your injury or get you a new occupation that pays as well as your previous job. Since the law cannot make an injured person whole, the only way to compensate the injury is with money. Insisting on going to trial when a reasonable settlement has been offered and recommended because you want "justice" will not necessarily increase your award, and may prejudice the judge against you.