What if I Disagree with the Disability Rating

After an employee sustains an injury in the course and scope of his or her employment, he or she is entitled to file for workers’ compensation benefits.  These benefits cover not only a portion of their replacement wages, but also their related medical costs for the treatment of their work-related injury.  When an employee is initially injured, he or she may be deemed to be temporarily disabled by a healthcare worker.  After the injury has stabilized, i.e. determined to reached its maximum recover, the employee may then be determined to be permanently disabled.  During this determination, the employee will be assigned a disability rating.  This disability rating is significant because the permanent disability rating will determine the amount of benefits the worker will receive in the long run.

To calculate the permanent disability percentage, it is required to perform an assessment of the injured employee’s whole person impairment.  The whole person impairment is then used in a particular format  to create the disability percentage.  It is not uncommon for the employee or the employer to disagree on whether the disability rating is correct.  They may disagree on the severity of the impairment or on the type of impairment.  If you disagree with the impairment rating given to your employee by the Treating Doctor, you can request that he or she submit to a new medical examination with a Qualified Medical Evaluator (QME).  Be advised, however, that a court will not order an injured employee to just continue to submit to repeated medical examinations until the employer gets the impairment rating he or she thinks is appropriate.  Employees also need to remember that time is not unlimited to appeal the disability rating and request a new medical examination.  Accordingly, an employer should not delay in pursuing the appeal if he or she believes the rating is incorrect.  Employers also should keep in mind that simply alleging that an award is too high is not likely to achieve a favorable outcome during an appeal.  Employers should be able to articulate why an award is too high or inaccurate.  For example, if the employee alleges his or her shoulder is seriously injured, the employer may want to be able to present evidence that the employee is regularly lifting heavy boxes or pursuing heavy athletic activity.

We have extensive experience with helping business owners understand the role of disability ratings.  Call us today to discuss your business and what we can do to help.

Temporary Versus Permanent Disability

No employer wants to see an employee hurt on the job, but even when the employer has taken meticulous steps to reduce the chances of employee injury, it is almost a certainty that an injury will eventually occur.  When the employee sustains a work-related injury, he or she will be entitled to receive a variety of benefits.  The most pressing and obvious type of benefits will be medical expenses for treatment of the injury.  Temporary and permanent disability benefits may also be awarded, so as an employer, you need to understand the difference between the two.

Temporary disability benefits are designed to help replace at least a portion of the injured employee’s wages while he or she is unable to work.  The type and length of the temporary disability benefits received will be determined by the types of work restrictions set by the employee’s medical provider.  An employee will no longer receive temporary disability benefits once he or she returns to work or is told by the medical provider he or she is sufficiently recovered to return to work.  California law provides that temporary disability can only be paid for a maximum of 104 weeks within the five years following the injury.  There are, however, some conditions that will allow for payment of temporary disability benefits for longer, such as chronic lung disease, chemical burns to the eyes, or amputations.

Permanent disability benefits are benefits that are paid in recognition of your future loss of earning capacity as a result of the injury.  Like temporary disability benefits, the benefit will be paid based on a medical evaluation.  The medical provider must determine when an injury has reached maximum improvement (i.e., has “stabilized”) and at that time will determine an employee’s permanent disability rating. The medical provider will determine the percentage of your disability and the amount paid will be directly determined by that percentage; the higher the percentage, the total money will be paid to the employee.  For any amount under one hundred percent, an employee is partially disabled.  An employee who is permanently totally disabled will be entitled to receive weekly payments in the amount equal to the temporary disability rate for the rest of the employee’s life.

If you have questions about whether what the different types of disability payments mean for your business, call us today.  We can talk to you about your rights and responsibilities.

Maximum Medical Improvement

All conscientious employers take as many steps as they can to reduce the likelihood their employees will sustain work-related injuries.  Even if all the right measures are taken, an employee may still sustain a work-related injury.  The workers’ compensation system will provide the employee with medical treatment costs and temporary disability benefits.  In some cases, the employee’s work-related injury may be so severe that it will never completely heal.  In such a case, the worker will be deemed to be permanently disabled.  Whether an injury is still healing or is determined by a medical professional to be one that will never heal is essential to the type and duration of benefits provided through workers’ compensation.  Maximum medical improvement is the term used in workers’ compensation cases for when an injured worker’s condition will not improve.

When an employee sustains a work-related injury, hopefully the employee is able to receive treatment and recover fully.  However, when an employee has received treatment and a medical professional has determined the employee’s condition is unlikely to improve, then the employee will be said to have reached maximum medical improvement.  Under California law, maximum medical improvement is defined as the time when the medical condition “is well stabilized, and unlikely to change substantially in the next year with or without medical treatment.”

A medical professional is the only one who can make the determination that an employee has reached maximum medical improvement.  The medical professional will write a report setting out the fact the employee has reached maximum medical improvement.  The report will also include an impairment rating.  The impairment rating will determine the amount of permanent disability benefits the employee will receive, as the employee’s disability rating directly impacts the amount of benefits.

Employers need to remember that the insurance company or the injured worker can both elect to dispute the medical professional’s assessment.  If this happens, then the disputing party is entitled to get a second opinion from another physician.  The physician will be chosen from a list of Qualified Medical Evaluators that is maintained by the Division of Workers’ Compensation.

If you have questions about workers’ compensation or disability ratings, contact us today.  We can talk with you about workers’ compensation and your business.

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 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.

Settling a Claim for Permanent Disability

It is increasingly common for law suits to be settled out of court.  This also holds true with workers’ compensation cases.  The workers’ compensation system is uniquely suited for settlement before a case ever sees a court room, and employers should keep in mind the benefits and potential risks of settlement.  Permanent disability presents unique issues in terms of settlement.

There are two main ways to settle a permanent disability claim.  The first is called “compromise and release.”  This method means that the employee agrees to take a one-time lump sum payment in exchange for agreeing that the case is forever settled.  After the compromise and release settlement is accepted by the workers’ compensation judge, the employee is then directly responsible for any and all future medical expenses.  No additional claims can be made for reimbursement through the workers’ compensation system for the injury.  An employee will often choose this option if he or she also has health insurance that would assist with medical costs.  The other type of settlement is called “stipulation with request for award.”  In this type of settlement, the employer and employee come to an agreement about the type of injury, the extent of the injury, and the medical care that is required for treatment.  The employee then receives periodic payments based on the degree of injury that the parties have already agreed to.  In addition to the periodic payments, the employee may still seek to have his or her medical expenses reimbursed through the workers’ compensation system in the future.  It is less common for employees to choose this type of settlement, however it is often required if the employee still works at the employer with the same insurance company

Employers should also be aware of some of the wrong reasons to settle a claim, or the wrong time to settle a claim.  Especially for permanent disability, it is not appropriate to finalize a settlement when it is not completely certain that the employee’s disability has become permanent and stable.  The employer should carefully scrutinize medical records to make sure that an employee’s injury is now indeed stable.  An employer should also avoid the temptation to settle a claim just to get it out of the way.  A claim is stressful for any employer, but it is important to make sure that a claim is valid before agreeing to pay permanent disability benefits.

If your business is facing a workers’ compensation claim, you need an experienced attorney to help you examine your settlement and trial options.  Contact us today at (714) 516-8188 for a consultation to discuss your business and your options.

What is Permanent Disability?

When an employee sustains a work-related injury, he or she may be entitled to receive payment from his or her employer through the workers’ compensation system.  In California, the workers’ compensation system is a no-fault system.  This means that the employee does not have to prove that the injury was the fault of the employer before being entitled to compensation.  The type, amount, and duration of workers’ compensation benefits that an employee may be entitled to is partly governed by whether the injury results in a permanent disability.

A permanent disability is defined as any lasting disability from an employee’s work-related injury or illness that affects the employee’s ability to earn a living.  In the event an employee sustains a permanent disability, he or she will be entitled to permanent disability benefits even if he or she can return to work.  In order to be determined to have a permanent disability, the employee must submit to a medical examination.  The doctor will decide if the employee has a permanent disability.  The doctor will wait until your injury has stabilized and is not likely to worsen or improve before evaluating the permanent disability.  The term for this state is either “permanent and stationary” or “maximal medical improvement.”  Once the employee’s injury reaches this state, the doctor will send a report to the insurance claim administrator reporting whether the employee has a permanent disability, and whether that disability is, in fact, work-related.  The doctor will decide how much of the permanent disability is attributable to the work-related incident, and how much is attributable to any pre-existing conditions.  The doctor will also write a report about the employee’s impairment, which refers to how much the injury actually affects the day-to-day activities of the employee.  The doctor will assign a number to the impairment, which is then plugged into a special calculation in order to calculate the percentage of disability.   Whole Person Impairment generally means how much the impairment will affect the employee’s ability to function in the future.  The employee’s age and occupation will also affect the calculation, as well as diminished future earning capacity, for injuries incurred after January 1, 2013.  The disability will be stated as a percentage, which will determine a specific dollar amount the employee will receive.  After the amount is calculated, an award of benefits will be granted, but must first be approved by a workers’ compensation judge.

Calculating and awarding permanent disability is complicated, and you need an experienced attorney working with your business through this process.  If one of your employees may be permanent disabled as a result of a work-related injury, contact us today at (714) 516-8188 to discuss it.

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