What Is Temporary Total Disability?

The California workers’ compensation system provides a method for employees who have sustained work-related injuries to receive compensation as result of their industrial injuries.  While employers will always take measures to attempt to reduce the likelihood that their employees will be injured, the workers’ compensation system provides relief for the workers and a degree of protection for the employers.  During the process, the injured worker will receive medical care and a doctor will determine the type of disability the worker has.  One of these options is temporary total disability.

An employee will be considered to have a temporary total disability where the employee’s primary treating physician has certified that he or she is unable to work as a result of the injury.  To be considered totally disabled, the medical provider must determine that the injured employee is unable to return to work at all, including a modified work schedule, due to the work-related injury.  Although a permanent injury is defined as one that is “permanent and stationary,” there is less statutory guidance as to what constitutes a temporary injury.  California court have described temporary injury as an injury that can reasonably be expected to be cured or materially improved with proper treatment.  If an employee is temporarily unable to work and is determined to be temporarily permanently disabled, then he or she may apply for the basic benefit that is usually available to temporarily disabled workers, which is called “temporary disability indemnity.”  This type of benefit is intended to replace the injured worker’s regular wages, which he or she would have continued to receive but for the injury.  This is in contrast to permanent disability, which is intended to compensate for diminished future earning capacity.  California labor code 4653 provides that temporary total disability compensation is calculated at “two thirds of the average weekly earnings during the period of such disability.”  Given the fact that workers’ compensation benefits are not subject to income tax, the worker’s take home from workers’ compensation would likely be approximately comparable to his or her after tax take home from regular employment.  However, the labor code does provide caps to the amount and duration of temporary total disability benefits, which could be up to 104 weeks, depending on the injury.

If you have questions about the workers’ compensation system, let us answer them. Contact us for a consultation to talk about how your business will be impacted by a claim.

How Is Disability Determined?

The workers’ compensation system is designed to make sure that an employee who sustains a work-related injury receives compensation for the injury.  This means not only wage replacement, but also the employer or the employer’s insurance company, will be required to pay for the reasonable medical expenses related to the injury.  The type of disability that an employee sustains as a result of the injury will have an enormous impact on the type and duration of benefits that he or she is entitled to receive.  Accordingly, understanding how disability is determined can be an important step toward protecting your business.

There are four different types of disability: temporary total disability, temporary partial disability, permanent total disability, and permanent temporary disability.  Only a doctor can make the determination as to a worker’s type of disability.  During the workers’ compensation process, the injured employee will be seeing medical professionals not only for the treatment of his or her injuries, but also for assessment.

An employee may be entitled to temporary disability benefits where he or she must miss at least three days of work or where he or she must be hospitalized overnight.  Again, only a doctor can make the determination as to whether or not these courses of treatment are necessary.  Moreover, only a doctor can make the determination that a worker is totally temporarily disabled, meaning he or she is totally unable to work for a temporary amount of time, or that he or she is only partially temporarily disabled, which would mean he or she is still able to work, but in a limited capacity.

By contrast, permanent partial disability would mean that the injured worker will never be able to work at the full capacity that he or she was able to do before the worker sustained the industrial injury.  The injured worker will still be able to work, but not in the same manner or to the same extent.  Permanent total disability means the injury results in the injured worker’s total inability to work in that field ever again.  A doctor will diagnose a permanent disability only after he or she makes the determination that the worker will not be able to heal any further.

Determining disability is a nuanced process.  Call us today so we can talk with you about what your business can expect from the process.

Out of State Injuries and Business

Our society is becoming increasingly more mobile.  It is not uncommon for people to make several cross country relocation moves during their lifetime, whereas in the past, people tended to stick close to the place they were raised.  As our families become more mobile, so, too, do our businesses.  It is very common to conduct business over the internet with people who live all over the country or even all over the world.  This facility of movement and tendency to conduct business across state lines can provide complications, however, when an employee is injured during the course and scope of employment.

With some limited exceptions, the California Workers’ Compensation Appeals Board will have jurisdiction over any injuries that occur within the state of California.  This is true even if the worker is employed in another state; as long as the injury occurs within California, then the WCAB will have jurisdiction over the claim.

There are also some limited instances where the WCAB may exercise jurisdiction over an injury that occurs in another state where there is “sufficient interest.”  Pursuant to Labor Code 5305 and 3600.5, the two situations during which the WCAB may exercise jurisdiction for injuries that occur out of state are when 1) the contract for hire was done in California, or 2) the out of state employee is regularly employed in California.  If an employee can demonstrate that he or she qualifies under either of those provisions, then he or she is entitled to compensation under California workers’ compensation laws.

Under Labor Code 5305, an employee may apply for workers’ compensation benefits in California even when the injury was sustained in another state as long as the contract for hire was done in California.  Although the statute also states that the employee must be a resident of California, this provision has been ruled unconstitutional by the California Supreme Court.  In workers’ compensation cases, the contract for hire will have been made in California where the acceptance of the employment contract physically occurs.

The labor code also allows the WCAB to have jurisdiction over out of state injuries where the employee is regularly employed in California.  Even if the employee was hired in another state, the employee may still apply for protection under the California system.

We have extensive experience with all types of workers’ compensation litigation, including complex interstate issues.  Contact us today to talk about your business’s rights and responsibilities

Can an Employee Sue Me In Civil Court?

The workers’ compensation system has existed in California for decades.  Workers’ compensation provides protection for both employees and employers, as it sets out rights and responsibilities for both parties in order to receive the benefits of the system.  One main benefit for employers is that in most cases, an employee cannot sue the employer in civil court based on the work-related injury.  However, there is an important exception to this rule found in California Labor Code 3706.

California Labor Code 3706 provides that “If any employer fails to secure the payment of compensation, any injured employee or his dependents may bring an action at law against such employer for damages, as if this subdivision did not apply.”  In other words, if an employer has failed to maintain workers’ compensation insurance, as is required by most employers in California, then the worker is not prevented from filing for compensation for his or her work-related injuries in civil court.  Conversely, if the employer maintains appropriate workers’ compensation insurance in accordance with the law, the employee is prevented from bringing a civil suit against the employer for negligence and is required to proceed under workers’ compensation to recover for his or her work-related injuries.  Moreover, Labor Code 3715 goes on to say that when an employer is illegally uninsured, the employee is not limited to filing in civil court; rather, the employee may bring both a claim before the workers’ compensation appeals board and also decide to pursue the employer in civil court.

If the employee decides to sue the employer for negligence in civil court, there are important differences from a typical negligence suit.  First, the employee must plead and prove that the employer failed to carry workers’ compensation insurance before the civil court will have jurisdiction to hear the claim.  More importantly, the burden of proof shifts.  In typical civil cases of negligence, the plaintiff has the burden to prove the defendant acted negligently.  In these cases, however, Labor Code 3708 provides that the defendant employer has the burden of proof to rebut the presumption that the employer acted negligently.  The employee must only prove that the injury occurred during the course and scope of employment.

If your business is facing a workers’ compensation suit and you are concerned about a civil suit, contact us today.  We can help you understand the process and how to protect your business going forward.

Permanent Total Disability

All good employers work hard to make sure their employees have the safest possible working conditions.  Keeping safety manuals up to date, providing regular safety training, and making sure that all equipment is kept in good repair are just a few ways that employers can help safeguard their employees and guard against workplace accidents.  Unfortunately, despite the most careful steps, workplace accidents usually will happen.  When an employee sustains a work-place accident, he or she can apply for workers’ compensation.  Employees will receive one of four disability classifications after seeing medical professionals: temporary partial disability, temporary total disability, permanent partial disability, and permanent total disability.

A doctor can classify permanent disability anywhere on a scale of zero to one hundred.  Only a classification of one hundred will result in the employee being classified as permanently totally disabled.  It is important to note that the classification of the disability at one hundred does not mean that the employee’s condition will not deteriorate or worsen in the future.  Instead, it means that the doctor has determined that the employee’s injuries meet the minimum threshold necessary for total disability.

There are two ways that an employee may demonstrate that he or she is permanently and totally disabled.  California labor code 4662(a) provides that certain conditions mean a conclusive presumption of permanent total disability.  These conditions are: 1) loss of both eyes or sight in both eyes; 2) loss of both hands or loss of use of both hands; 3) an injury resulting in practically total paralysis; or 4) an injury to the brain resulting in permanent mental incapacity.  For this presumption to apply, the incident resulting in the injury must be an industrial accident.  A prior injury cannot contribute, for example, to the loss of sight in both eyes. Rather, the industrial accident subject to the current workers’ compensation claim must have resulted in the loss of sight in both eyes.

The other way for an employee to demonstrate permanent total disability is under Labor Code 4662(b), which provides that all other claims of permanent total disability must be determined “in accordance with fact.”  Although the labor code does not specifically define what this means, case law indicates that Labor Code 4660 will govern how the finding of permanent total disability will be made.

We have extensive experience in assisting our clients to understand the different types of disability in workers’ compensation suits and how they may impact their business.  Contact us today for a consultation to talk about your business and its future

What Is the Difference Between Removal and Reconsideration?

When working in the legal system, it is essential to have a firm understanding of the procedures and rules if you are to be successful in your claim or defense.  Workers’ compensation is no exception, and to make sure that your business is protected, having expert legal advice in addition to some basic knowledge about the process can be the difference between successfully defending a claim against your business and having to pay an unfair judgment.  If your business is involved in workers’ compensation litigation, it is possible that the judge could make a decision with which you do not agree.  If that occurs, you have two options to attempt to overturn that decision.

The first option is called a Petition for Reconsideration.  If you have received a final order in your workers’ compensation case from the WCJ, you can file a Petition for Reconsideration.  Under California Labor Code § 5900, a Petition for Reconsideration asks the Workers’ Compensation Appeals Board to intervene in the case.  California case law provides that a final order is one that “determines any substantive right or liability” of the parties in the case.  California Labor Code § 5910 states that the person wishing for the WCAB to reconsider the WCJ’s ruling has just twenty days from the order to file the petition.  The available grounds to file for reconsideration are: 1) the WCJ acted without power or in excess of its power; 2) the order or award was procured by fraud; 3) the evidence is no sufficient to justify the findings of fact; 4) the existence of newly discovered information that was not available previously; or 5) the findings do not support the order or decision.  Filing the petition also has the effect of suspending the order for ten days.

The other option is a Petition for Removal.  In contrast to a Petition for Reconsideration, a removal request is asking for relief from an order that is not a final order.  As with the Petition for Reconsideration, the Petition for Removal must be filed within twenty days of the order from which the requesting party seeks relief.  To be successful, the appealing party must show: 1) the order from the WCJ will result in prejudice; 2) the order will result in irreparable harm to the appealing party; and 3) reconsideration after the final order will not provide an adequate remedy.

Deciding when and how to appeal a workers’ compensation order is a difficult decision.  Contact us today to talk about your proceedings and what we can do to help protect your business.

When Does the Subsequent Injuries Fund Pay On a Claim?

California law requires that the majority of employers carry workers’ compensation insurance to provide for their workers in the event that they sustain a work-related injury during the course and scope of their employment.  Unfortunately, some employers either do not carry this insurance or even do not realize that they are required to do so.  California Labor Code § 3351 defines “employee,” and the definition is broader than most people realize, including even workers such as handymen, nannies, and minors.  In the event an employee sustains an injury, the Uninsured Employers Benefit Trust Fund (UEBTF) may provide funding for the employee.  If the employer is illegally uninsured and fails to pay the compensation awarded to the employee by the Workers’ Compensation Appeals Board, the employee may submit a claim to the UEBTF for payment of his or her claims.

The Subsequent Injuries Benefits Trust Fund (SIBTF) is another source of compensation for injured workers.  Under California Labor Code § 4751, employees who had a previous permanent disability or impairment at the time he or she sustained another injury in the work place can apply to the SIBTF for compensation.  To be eligible for compensation from the SIBTF, the injury from the current employment combined with the previous disability or employment must have the combined effect of at least a seventy percent permanent disability for the worker.  Moreover, the new injury must cause at least thirty-five percent of the permanent disability.

Note that an employer does not have to be illegally uninsured for an injured employee to be eligible to receive benefits through the SIBTF.  The SIBTF is meant to help pay a portion of the permanent disability compensation for permanently disabled workers for qualifying workers, as described above.  If an employee qualifies to receive benefits through the SIBTF, the employer will pay only the portion of permanent disability that is attributable to the injury received through the current employer.  The SIBTF will pay the remainder of the benefits owed to the employee.  The purpose of the SIBTF is to encourage employers to hire workers who are already permanently disabled without fear that they will be held responsible to pay benefits that are attributable to a permanent disability incurred through previous employment.

We have extensive experience in assisting our clients understand the repercussions of all types of workers’ compensation claims on their business.  Call us today so we can talk with you about your business and its responsibilities.

Do I Have to Pay for My Worker’s Prior Disability if He Gets Injured? (Apportionment)

As an employer, you know that making sure you provide workers’ compensation benefits for your employees is important and in most circumstances is required by California law.  Workers’ compensation provides protection for the employee because it establishes a no-fault system under which an injured worker can receive compensation for his or her work related injuries.  It also provides protection for the employers, as this no fault system means that the employer does not have to worry about being sued by their employees for recovery for injuries sustained during the course and scope of employment.  Although you certainly understand that workers’ compensation is designed to compensate your injured employee for injuries sustained at your business, it is also important to understand your potential responsibility if the employee had sustained an injury previously at a different business.

Apportionment is designed to allow disability percentages to be assigned to previous injuries to the same body part injured and at issue in the current workers’ compensation case.  California Labor Code § 4664(a) states “The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.”  The law goes on to provide that if there is a pervious determination of permanent disability, then it is presumed that the permanent disability still exists at the time the next workers’ compensation claim is made.  If the request for apportionment is successful, the amount of workers’ disability benefits received by your employee in the current case will be reduced.  To successfully show apportionment, there are specific requirements concerning the doctor’s assessment.  First, a doctor must make a specific determination of apportionment.  This determination must be done using percentages of what existed at the time of the injury.  The doctor must also analyze the permanent disability based on the causation of the disability, not causation of the injury itself.  Third, the opinion must be based on facts and not on speculation.  Fourth, the opinion must be based on a “reasonable medical probability.”  Finally, the doctor must explain how and why he or she reached the particular conclusion.  There are other requirements for a successful claim such as showing the employee was actually compensated for the previous injury and the injury continued to be a source of disability after the accident.

We have extensive experience helping our clients understand apportionment and how to protect their business.  Contact us today for an appointment.

What Is Permanent Disability?

As a business owner, you take every measure possible to reduce the chance of injury to your employees as much as possible.  Unfortunately, no matter how much you strive for an injury-free work place, it is overwhelmingly likely that an injury will eventually occur.  If during the course and scope of employment, your employee sustains an injury, he or she will likely be entitled to receive workers’ compensation benefits.  The type and percentage of disability is a central component of disability claims.

The California Department of Industrial Relations defines permanent disability as “any lasting disability from your work injury or illness that affects your ability to earn a living.”  If an employee is permanently disabled, he or she will be entitled to permanent disability benefits, regardless of whether that injury renders him or her unable to work in the future.  In most cases, permanent disability is determined through Whole Person Impairment (WPI).  This will be determined after the employee is examined by his or her doctor or a Qualified Medical Evaluator.  The doctor or QME will determine the percentage of impairment level, meaning how the injury will impact the employee in his or her ability to work.  The QME will use the standards established by the American Medical Association in making this determination.  The impairment level will then be reduced to a percentage, using a formula which also takes into account the employee’s age and occupation. In cases involving psychological injuries, the injury must either be categorized as catastrophic or the employee must have witnessed a violent crime in the course and scope of employment.  Taking all of these elements into account, the disability evaluator or the judge will then use the statutory formula and decide the amount of permanent disability the employee is entitled to receive.  The amount the employee will be entitled to receive will also be impacted by the date of the injury in addition to the wages paid to the employee before he or she was injured.  The permanent disability benefits typically begin being paid after the end of temporary benefits and the doctor indicates that the injury has “stabilized.”  This means that the injury will not heal or improve any more.

If you have questions about disability payments to your employees, contact us today.  We look forward to discussing workers’ compensation with you and what we can do to help protect you.

How Long Can My Worker Stay Out on Temporary Disability?

There are many precautions that careful employers will take to make sure that workers are not injured during the course and scope of their employment.  Keeping equipment in good repair, having updated training for all workers, and creating a safety committee are just a few ways that may help reduce work-related injuries.  Despite the best safety measures, however, it is highly likely that a worker will eventually be injured on the job.  If this occurs and the injury is severe enough to prevent him or her from doing his or her job during recovery, then that person is said to be temporarily totally disabled.  This is a determination that can only be made by a medical professional.  While the worker is healing, he or she can apply to receive two thirds of the wages he or she received while performing the regular duties associated with his or her employment, up to a maximum amount set by statute.  Especially when a worker is out for a substantial amount of time, as an employer, you may wonder how long that worker can stay on temporary disability.

If a worker sustains an injury that prevents the employee from coming to work for at least three days or requires the worker to be hospitalized (or both), then the worker may apply for temporary total disability.  California statute provides that the first payment must be paid within just fourteen days of when a doctor makes the determination that the work-related injury renders the worker unable to work.  Once the payments begin, there are several ways that the worker’s entitlement to continued temporary disability payments may end.  One way is that the injured worker returns to work in some capacity, even if it is not to the original position.  Another way is that a medical professional determines that the injured worker has recovered to the extent that he or she can return to work in some capacity.  Third, if the injured worker has received total temporary disability payments for the statutory maximum of 104 weeks, the worker will no longer continue to receive payments.  Finally, if the physician determines that the worker’s condition is stable and he or she will no longer improve, then the payments may then change to permanent disability payments.

We have extensive experience in helping our clients understand their rights and responsibilities with regard to their employees.  Contact us today to discuss your business and what we can do to help make sure you comply with the law.

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