Overview Of The Work Comp Process
Eric M. Ovehrolt, Esq. is a lawyer in San Diego and Imperial County in California. This information page is designed to provide a basic overview of the Workers’ Compensation system and to provide information about the work comp system for injured workers, other Workers’ Compensation attorneys (or even attorneys who don’t practice work comp), and for people just curious about how the workers’ compensation works. Whether you have a brain injury, a back injury, a shoulder injury, a knee injury, or any other type of injury at work, this blog should provide relevant information. Worker’s Compensation is a very complex and sometimes frustrating process for injured workers and nothing compares to the one-on-one advise that you can receive directly from an experienced lawyer. The following is a description of the process for a typical worker’s compensation case: ** See Disclaimer at the bottom of the page.
Filing a claim
The case starts with an injury occurring at work. After the injury, the employee fills out a claim form, which is sent to the employer’s insurance company. The employer may also send the employee to a doctor of their choice for medical treatment.
If the employee chooses to hire an attorney, the attorney will file an application with the local Workers’ Compensation Appeals Board and send the injured worker to a doctor for treatment. The doctor will be chosen from a list of providers in the insurance company’s network and will be someone your attorney has a working relationship with.
Any injured worker needs to select a Primary Treating Physician (PTP) from the Medical Provider Network). He or she will request authorization for treatment from the insurance company, provide medical treatment, recommend secondary treating physicians if necessary and direct the case. The treatment phase can last anywhere from a few weeks to several years, depending on the injury the employee has sustained, the treatment received, the severity of the injury and any complications that may occur. Each case is different and it is impossible to give an estimate of how long a case may last.
The employee will have a primary treating doctor, who provides day-to-day treatment and medications. The primary treating doctor may refer the employee to a specialist or another doctor for a second opinion. In most cases, the attorney and the insurance company’s attorney will agree on a neutral doctor, or Agreed Medical Examiner, to provide a comprehensive medical-legal report. An Agreed Medical Examiner is usually the final medical opinion on the employee’s condition and injured body parts and both parties are bound to follow the doctor’s opinion. In the case that the attorneys cannot reach an agreement on a neutral doctor, a Qualified Medical Examiner may also see the employee. The panel QME is a doctor chosen from a panel provided by the State of California and will provide the same type of report as an AME.
Treatment recommendations made by a Primary Treating Physician (PTP) are subject to Utilization Review (UR). UR has a limited time to approve, modify or deny the treatment recommendations of the PTP. If the injured worker disputes the denial or modification, then they need to immediately file for Independent Medical Review (IMR). IMR legally employs “ghost doctors” (one’s that the client will never even learn their name, qualifications, or time spent reviewing the case) who review a limited record to make a final determination that is binding and non-appealable for one (1) year on the issue of medical treatment. In the event that the IMR upholds the denial, a PTP may only make another request for the same treatment within the one (1) year period if the workers’ compensation PTP can show that there has been a change in circumstance.
Temporary Disability Benefits
If the employee cannot work during this time, the insurance company will begin paying total temporary disability (TTD) equal to two-thirds (2/3) of the employee’s average weekly wage for the year immediately prior to the injury. The amount of money that is paid on a weekly basis is capped on a yearly basis. The cap usually increases every year to adjust for an increase in the cost of living. For example, the temporary disability weekly cap for 2016 will be $1,128.43 per week, whereas the cap was $1,103.29 in 2015 and $1,074.64 in 2014. These checks will be mailed directly to the employee on a bi-weekly basis.
If the employee can do modified duties during this time and the employer can accommodate the doctor’s restrictions, the employee may continue to work. If the employee finds that the modified duties are aggravating his or her injury after attempting to continue working, the doctor may choose to take the employee off work entirely. This will trigger total temporary disability payments from the insurance company.
The maximum amount of temporary disability checks that a person can receive is capped at 104 weeks in a 5 year period. There are some exceptions to this rule, but this cap applies to 99.9% of all injuries.
During this phase of the case, the attorney will receive regular reports from the doctor, keeping us updated on the employee’s condition. Legally, the case is on hold while the employee is in treatment. Our first concern is the employee’s health, so we want to wait and let the doctor provide the best treatment possible before we begin the legal process of settling the claim.
During the course of the case, the workers’ compensation attorney for the insurance company will schedule a deposition. A deposition is a question and answer session for both sides to find out more information about your case. It is conducted under the same oath you take if you are testifying in court and recorded by a court reporter. The reason for the deposition is to clarify any questions we may have about how the injury occurred, what treatment the employee has received, how close the employee has become to finishing treatment and other general background information. An injured worker is entitled to a have their own workers’ compensation lawyer prepare them for the deposition and to attend the deposition to protect their interests.
End of Treatment
At some point, the primary doctor or AME will conduct a final evaluation of the employee and write a Permanent and Stationary report. This report lets the attorneys know that the employee has reached a state medically where he or she is not improving, but not getting worse, and is ready to settle his or her claim. This final report will tell the attorney the percentage of Permanent disability (PD) the employee has, based on the American Medical Association guidelines, 5th edition. When we receive this report, we will take this percentage and adjust it for the employee’s age at the time of injury and occupation, giving us a final percentage of permanent disability.
The final report also tells the work comp lawyers if the employee can return to their previous job, or if they will need to be retrained for a new job. It will also make recommendations for any future medical treatment the employee may need.
When the insurance company receives the Permanent and Stationary report, they will end temporary disability payments and begin paying Permanent Disability Advances on a bi-weekly basis. These payments are based on the insurance company’s estimate of the total value of the employee’s case and will be subtracted from the final settlement. The reason the insurance company advances this money to the employee is to make sure the employee is not left broke between the time the doctor declares him or her permanent and stationary and the final settlement of the case.
Once the final level of permanent disability has been established, the case is ready to settle. There are two options for settlement in worker’s compensation cases.
A Stipulation is an award based on the employee’s level of permanent disability with open future medical care under the worker’s compensation insurance. This settlement is the only option available for employees who are returning to their jobs as long as the employer purchases insurance from that company. The permanent disability rating and the State of California determine the monetary award to the employee. This award is paid in bi-weekly installments until the balance is paid.
Medical treatment under the provisions of a stipulation must be provided by a doctor in the insurance company’s network and are subject to prior approval by utilization review. Treatment is also limited to the future medical recommendations in the final medical report.
Cases that are settled by Stipulation can be reopened if the employee’s condition becomes worse within five (5) years of the date of injury, or one (1) year of the last payment of benefits by the insurance company.
b. Compromise and Release
A Compromise and Release is a final settlement of all claims for the worker’s compensation injury. In order to settle a case by C&R, the insurance company will usually require that the injured worker be no longer employed with the company where the injury occurred or the insurance company must not be the current insurance carrier of the employer. The monetary award is the permanent disability plus an additional sum to buy out the employee’s future medical care. For injuries occurring before 1/1/13, some money may also be included for the Supplemental Job Displacement Benefit (SJDB) or the employee can elect to keep the SJDB. However, for all injuries occurring on 1/1/13 or later, the SJDB cannot be bought-out.
Medical care becomes the employee’s responsibility once a Worker’s Compensation judge approves the settlement. The employee may choose to treat with their family doctor or pay for services with the proceeds of the settlement. Treatment is not limited to the doctor’s recommendations in the Permanent and Stationary report and does not require prior authorization of the worker’s compensation insurance company.
Cases that are settled by Compromise and Release may not be reopened.
If the doctor’s final report indicates that the employee cannot return to his or her prior job, the employee is eligible for SDJB, which is a voucher for supplemental job training. The dollar value of the voucher depends on many factors including the date of injury and possibly the level of disability. If you are unable to return to your job, you may be entitled to $4,000, $6,000, $8,000 or $10,000 depending on your level of Permanent Disability (discussed above) for injuries between 1/1/2004 and 12/31/2012. For injuries occurring 1/1/2013 and later, the supplemental job displacement benefit is $6,000.00 regardless of your level of Permanent Disability. Also, some of the $6,000 may be used for job counseling and a computer.
It is recommended that you hire an experienced Workers’ Compensation attorney to assist you though this complicated and time consuming process.
** Nothing on website is designed to provide legal advise and nothing on this site creates an attorney-client relationship. Please contact Eric M. Overholt, Esq., Attorney at Law or another experienced Workers’ Compensation lawyer if you would like more information about retaining an attorney to represent you for your work related injury in San Diego or throughout California. Mr. Overholt is one of the best lawyers in San Diego and in Imperial County and will fight for your rights in court.