Posts Tagged ‘Temporary Disability’

Filing A Workers Compensation Claim Without Fear Of Retaliation

Written by Maurice Abarr on . Posted in Workers Compensation

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This is an all too common problem:

“I got injured at work, but do not want to file a Workers Compensation claim because I’m afraid I will lose my job, or that my employer will treat me badly.”

There is always a risk of a work-related injury if you are employed. For that reason, employers in California are required by law to provide Workers Compensation insurance for their employees. Thus, if you get injured at work—or acquire an illness that can be attributed to your work—your employer is required to inform you of their Workers Compensation insurance carrier, provide you with a claim form, and pay for your medical treatment.

Workers Compensation ensures that an injured worker receives some form of wage replacement while receiving medical care for their work-related injury. In order to qualify for that benefit—called “Temporary Disability”—you must be continuously off work, declared “temporarily totally disabled,” and engaged in active treatment. Ordinarily, you are not entitled to this benefit for simple medical appointments.

The Workers Compensation system has developed a reputation—some of it good, some of it not so good. The “good” is that Workers Compensation is a specialized area of law that provides for injured workers only. It allows injured workers to seek the proper medical care to recover after an injury, without relying on their private insurance carrier. The “not so good,” is that frivolous claims do happen – which leads to negative impression by employers. Such claims (and the perception created by them) are the primary reason that Workers Compensation may be viewed negatively or met with skepticism by employers. This contributes to the hostility some employers may have towards an employee who files for such benefits.

Most employers, however, understand the risks involved in performing certain duties at work, whether it’s carrying heavy loads, excessive typing, or repetitive bending. There is always a possibility that, with a wrong move or repetitive motions over time, an injury will arise. If you continue to work, knowing you’ve sustained an injury and don’t seek the proper treatment, you may compound your injury until you are unable to work at all. Thus, injured workers should not refrain from filing a Workers Compensation claim out of fear. Though there have been situations where an employer has fired an employee for filing a Workers Compensation claim, or been treated a hostile manner by the employer, these situations can sometimes be corrected with prompt and appropriate action by the employee.

At-will Employment & Your Disability

Most workers have “at-will” employment. This means that an employer may fire an employee with or without just cause. In other words, no reason or warning is required to justify the termination of employment. However, an employer may not fire you because of your disability. Most employers must comply with the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA), which prohibit them from discriminating against workers due to their disabilities.

You and your employer will become aware of any disabilities you may have after you receive diagnosis and treatment from a physician. Typically, an injured worker will be treated by a Primary Treating Physician (PTP) within the Workers Compensation system, known as the Medical Provider Network (MPN). Generally, the PTP will write a report that lists any physical limitations, known as “modified duties” or “restrictions,” you may have. Upon notification of these restrictions, your employer is required to make a good-faith effort to reasonably accommodate these modified duties.

However, not all employers may be able to accommodate such modified duties. Your only option will be to seek other work or cease working. In these situations, the employer would not be violating the law for “letting you go,” since they just can’t accommodate your restrictions.

Wrongful Termination & Your Disability

If it’s obvious that your employer fired you solely because of your work-related injury—or for filing a Workers Compensation claim—you should definitely consult an attorney. A different legal issue is at stake—wrongful termination. It is generally illegal for an employer to fire or punish you for exercising your rights to receive Workers Compensation for a work-related injury. If this occurs, the employee must prove* that he or she was fired as a form of retaliation for filing the claim. Thus, if you feel that you are facing a situation like this, you must inform your attorney as soon as possible. He or she may choose to take action on your behalf or refer you to a specialist in Employment Law.

*Note: Proving that the termination was substantially due to the exercise of your rights as an injured worker can be difficult. Each case must be assessed by a qualified attorney based on the facts accompanying it.

If your injury is indeed work-related and has been accepted by the insurance carrier, there should be no hostility between you and your employer—you are not suing your employer when you file for Workers Compensation. You are merely seeking the benefits afforded to you by law and from an insurance policy your employer pays for.

Thus, filing for Workers Compensation should not be feared—it should be exercised in order to help you return to work quickly. We at The Law Offices of Maurice L. Abarr are uniquely well qualified to advocate for you and protect your rights. Contact us today for a free consultation.

NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

The “Fiscal Cliffs” in Workers’ Compensation Claims (Part 1)

Written by Maurice Abarr on . Posted in Workers Compensation

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The End of Temporary Disability Benefits

Frequently the on-the-job injury requires the Injured Worker [IW] to be off work, undergoing active medical treatment, and (hopefully) to be in a process of recovery. This off-work time is usually referred to as “Temporary Disability” (TD).

As of April 19, 2004 (the Schwarzenegger Reform), the IW was limited to two (2) years or 104 weeks of TD. Such a two-year period began to run from the date of first payment of TD benefits. If the IW received his or her first TD payment on 2-1-05, then those benefits would stop on 2-1-07–even if the IW returned to work for part of that 2-year period of time.

Note: If the IW’s date of injury was before April 19, 2004, he or she could potentially receive TD benefits for an unlimited time… as long as there was medical evidence supporting the status of continued Temporary Disability. I have had some injured workers–with dates of injury before April 19, 2004–who received TD benefits for more than 10 years. Those, however, were extreme cases.

Effective January 1, 2008, the law on the two (2) years / 104 weeks of TD benefits was changed so that the IW would have up to five (5) years from the date of injury to collect all two (2) years of TD benefits. In other words, the IW who was injured on 2-1-08 could be off for a short period of time (possibly delaying a surgery until a later time), have the surgery in 2010, and collect TD benefits up to 2012. As long as the total time of TD payments did not exceed two (2) years, the IW had until 2-1-13 to collect his or her two years of TD benefits.

What to do when the Primary Treating Physician (PTP) says you are still Temporarily Disabled but you have exhausted all two (2) years of TD benefits?

Many of the cases I have handled since “The Terminator’s” Reform of 2004 have ended up in this unwelcome predicament. This is how we usually advise our clients:

1. Before the second anniversary of their date of injury, frequently at the time we are retained on the case, we recommend to the client that they apply for State Disability benefits through the Employment Development Department–otherwise known as EDD-SDI or, simply, SDI. Some of the personnel at EDD-SDI district offices will say something like:

“But this is a Workers’ Comp case… Workers’ Comp should be paying you, not State Disability.”

Actually, that is not quite correct. State Disability stands second in line and obligation to pay for persons (who are entitled to SDI benefits because they and their employer have paid into that system) who are so disabled they cannot continue performing their usual and customary employment. First in line is Workers’ Compensation. But if WC will not pay (they are delaying to investigate, they have denied the case, or, as in our example, TD benefits have been exhausted and you still cannot go back to work), the SDI must step up and provide benefits for up to one year. For most wage earners, SDI benefits are very similar in weekly rate to TD benefits.

2. If the IW has any Long Term Disability insurance plans, we urge them to apply for those benefits at their earliest opportunity.

Note: We do not normally help with applications for LTD benefits. That is a specialty in its own right. However, we will provide copies of medical evidence which will likely facilitate the application process.

3. Depending on the severity of the injuries, the age of the Applicant, and other factors, we will sometimes recommend that the IW apply for Social Security Disability Insurance benefits [SSDI], a federal benefit. (For those who have insufficient work credits to qualify for SSDI, we may recommend that the IW apply for Supplemental Security Income [SSI], also a federal welfare-type of benefit.)

Note: We are not currently representing applicants for either SSDI or SSI–but we can refer you to counsel who are specialists in these aspects.

It’s important to understand that there are some cases that have needs or limits that simply do not lend themselves to easy solutions. But, we always try our best for our clients. Most of the time, our efforts result in a positive outcome.

Watch For Part 2
In the second part of “’Fiscal Cliffs’ in Workers’ Compensation,” I will discuss the transition from the wage-loss replacement benefits (TD, SDI, SSDI, SSI) to the Award or Settlement of the case–and the concerns that arise during that phase of the case.

NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

WHAT HAPPENS TO THE INJURED WORKER AFTER GETTING AN AWARD OR SETTLEMENT?

Written by Maurice Abarr on . Posted in Workers Compensation

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Actually, it might just as easily be called, “Where Has All the Vocational Rehabilitation Gone?” Or, better still, “JOB VOUCHERS: The Remnants of What Was Once Called ‘Vocational Rehabilitation.’”

The Ever-shrinking Benefit
Between the late ‘70s and the early ‘90s, we had true vocational rehabilitation in California. Then, a perception began to be fostered that it was “too expensive” for employers (and their insurance carriers) so, of course, it was touted as being “abused.” (I will try to temper my sarcasm but, after all, I have represented injured workers for more than 30 years.)

In 1993, the Legislature imposed a monetary limit of $16,000 on an individual vocational rehabilitation program–even though the average cost of a rehabilitation program before 1993 was around $40,000. Predictably, $16,000 was not enough to finance any meaningful vocational rehabilitation for the average injured worker. So, everyone started “settling VR”–i.e., they took the cash and went without any vocational rehabilitation.

Note: Occasionally the carriers would pay the full $16,000 to settle the benefit but, as time went by, they exercised the Golden Rule (“the one who has the gold…rules”) and started discounting the value down to around 50 cents on the dollar (i.e., $8,000). Some carriers were heard to settle it for as little as $2,000.

The next “reform” to vocational rehabilitation arrived in 2003. It essentially eliminated even the appearance of providing vocational rehabilitation with the institution of Supplemental Job Displacement Benefits–what is commonly referred to as a “Job Voucher.” It’s called this because the benefit is a nontransferable voucher for education-related retraining or skill enhancement (or both) at a state-approved or accredited school. All of this may sound good, but it has very little to do with getting a new job. Moreover, this benefit is only available to workers whose injuries occurred after January 1, 2004, who also did not return to work for the employer within 60 days after the Temporary Disability (TD) terminated, and whose employer did not offer a job which accommodated the worker’s limitations within 30 days of termination of TD benefits. Got all that?

Simply put, a Job Voucher would guarantee payment of a certain amount of money towards education and training of the Injured Worker–the amount being dependent upon the percentage of Permanent Partial Disability (PPD) he or she had. For instance, a PPD of 14% would entitle the Injured Worker to a job voucher which would pay up to $4,000 towards tuition and retraining costs (presuming the other conditions have been met). If the PPD was between 15% and 25%, the dollar amount of the job voucher would be $6,000. If it was between 26% and 49% it would be $8,000. If the PPD was between 50% and 99%, it would be $10,000.

Consider the plight of the injured worker who was injured before January 1, 2004 who had multiple surgeries and a protracted period of Temporary Disability and, yes, was paid TD benefits for all those years (TD benefits were limited to last only 2 years, starting with dates of injury on April 1, 2004 and later). So, does the worker get Vocational Rehabilitation because the date of injury was prior to January 1, 2004? No! The law awarding that benefit was repealed, effective January 1, 2009. Worse, the worker gets no Job Voucher either because his date of injury precedes the effective date for that benefit. Sweet, huh?

The Road Narrows Even Further
Effective January 1, 2013, if you are the injured worker and your date of injury was after January 1, 2004…and you have not returned to work for the same employer within 60 days after termination of your TD benefits…and your employer has not made you a job offer which accommodates your limitations within 30 days of the date of the termination of your TD benefits, you may now be entitled to a Job Voucher with a value of $6,000. And, it doesn’t matter what your level of PPD is. If you are 10% and otherwise qualify, it could be said that you’ve come out “ahead” (compared to the $4,000 job voucher you would have received before). But, if you are 60% disabled, you will get the same $4,000 voucher.

Use It Or Lose It
Another limitation imposed as of January 1, 2013: Injured Workers must use it within two (2) years from date it is issued or five (5) years from the date of injury, whichever is later. One more thing–you cannot settle the Job Voucher and simply take the money and invest it elsewhere (like groceries and rent) while you attend community college classes.

Perhaps this will help enable you to better chart your course.

NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

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