The best way to limit workers’ compensation cases is to prevent work injuries in the first place.
That is why any quality data that helps employers understand when workers are most at risk can promote worker safety initiatives. (more…)
José Guzman, a 61-year-old from San Bernardino who commuted 60 miles to a Farmer John meat packing plant in Vernon, is one of the reportedly 266 workers infected in a COVID-19 outbreak at the plant, as of August 24. (more…)
Most people are aware that if you suffer an injury on the job, you are covered by the California worker’s compensation system. Here are some examples of ways you may be covered that you may not be aware of: (more…)
When the COVID-19 pandemic started, insurance industry pundits were quick to speculate that there would be a massive increase in workers’ compensation claims. So far, those predictions turned out to be overblown. (more…)
California Assembly Bill 664 would assure automatic workers compensation benefits for our first responders, so they don’t have to have to prove they contracted COVID-19 at their workplace before they get medical treatment and other benefits.
It makes sense to take care of our firefighters, police, and hospital workers on the front lines of the battle against this Coronavirus. They shouldn’t be forced to litigate whether they contracted the disease at work before they get the protections of the system.
But there is another good reason workers’ compensation stakeholders, including insurance companies, should be eager to join The Los Angeles Police Protective League and National Nurses United in support AB 664. The law would reduce the frictional costs associated with litigation because insurance company denials won’t have to fight in court.
For the same reasons, the legislature should quickly consider similar legislation to protect those who work in grocery, delivery, and other essential jobs that pose an elevated risk of Coronavirus exposure.
If you lost your job due to the COVID-19 pandemic, here are 3 things to think about:
1. Did your employer use the pandemic as an excuse to lay you off?
While some businesses are legitimately laying off workers due to the financial challenges caused by the pandemic, others may be blaming the Coronavirus pandemic when the real motive to end the employment relationship is really for a different – and even illegal – reason. For example, if you have work-related injuries or conditions, an employer may see the pandemic as an “opportunity” to lay you off and try to hide their real reasons. In California, it is illegal to discriminate against an employee based on a work injury, age, race, or gender.
2. Is there a record of medical treatment before your layoff?
In workers’ compensation, While the general rule is that you must notify your employer of a work injury or condition before your notice of layoff, there are exceptions. For example, if you have seen a doctor for your work-related injuries or conditions before the layoff, you may still have a valid claim depending on the facts of your case.
3. Did you delay a work injury claim to “save your job”?
Let’s face it – filing a work injury claim with an employer risks retaliation, even in the best of times. That’s why many workers with legitimate work injury claims decide to “tough it out” and not report their injuries. When the employer decides to lay you off, however, you are left with no job and compromised health. The sooner you determine your rights, the better chance you have at securing workers’ compensation benefits, including medical treatment, temporary disability benefits, permanent injury compensation, and future medical care.
If your workplace exposed you to the Coronavirus (COVID-19), here are the 5 things you need to know:
1. The employer cannot blame you for the exposure to the Coronavirus
California has a “no-fault” workers compensation system, which means that all you have to prove is that the exposure happened at the workplace. If a co-worker or a member of the public is infected, and then you become infected, you may have a workers’ compensation claim against your employer.
2. Exposure to infected people triggers your rights
Your workers’ compensation claim does necessarily depend on finding the person that infected you. If your work exposed you to an infected co-worker or the nature of your job exposes you to the public more than the average person, then you have probably met the criteria for a claim.
3. This Coronavirus is more than the flu!
Early data suggests that if you are exposed, your symptoms could be mild, or you may not have any symptoms are all. Doctors and scientists are racing to determine whether there may be long term effects of COVID-19 – and early finding indicates there may be, unfortunately. A professor at Northwestern University’s Feinberg School of Medicine, Khalilah Gates, states that “some people’s bodies are producing way too much of an inflammatory response that’s harming critical organs like the lungs, kidneys, and heart.” A physician at Lenox Hill Hospital in New York, Len Horovitz, expects that some infected people who had a severe reaction to COVID-19 may later experience heart arrhythmias, congestive heart failure, and inflammation of the heart muscle.
4. Document your potential claim right away
Potential exposure to COVID-19 increases with time as we live our lives outside of the workplace and this reality will be used by the employers’ insurance company to avoid responsibility for your claim. Therefore, workplace exposure should be reported to your employer immediately, preferably by filing a claim form for workers’ compensation benefits.
5. Protect your health and your potential claim
Fortunately, COVID-19 infection does not appear to be life-threatening for most people. However, since it is too early to tell if even mild cases can have long term health effects, it is better to be “safe than sorry.” Employers have workers compensation insurance for a reason – to protect their employees. If you have been exposed to COVID-19 at the workplace, the potential effects on your health can be serious. Protect your potential claim by acting as early as possible.
If you are reading this, chances are your workers’ compensation doctor is about to release you with your “rating,” or you have received a letter from the claims adjuster which provides an estimate of what your permanent disability rating is – at least according to them.
Generally, you will be told that the permanent disability rating is “based on what the doctor determined,” and will be led to believe that there is nothing you can do about it. The claims adjuster will assign a dollar value based on a chart, and invite you to sign paperwork committing you to a settlement.
It reminds me of buying a new car at an auto dealership – the salesperson tells you what the sticker price is, and you either take it or leave it. What the claims adjuster either doesn’t understand or does but won’t tell you is that human beings are not cars. Each person is unique regarding the extent of recovery and limitations after experiencing a work injury.
Here is the quick background on how an initial permanent disability rating is initially determined:
1) A doctor will utilize the AMA Guides 5th edition to assign a “rating” for your injury.
2) The doctor’s rating will then be plugged into a formula in the California Permanent Disability Rating Schedule (PDRS) which, modifies the doctor’s rating based on your occupation at the time of the injury and your age, as well as other factors.
3) Once the PDRS rating percentage is determined, the Permanent Disability Indemnity Chart will assign a dollar value for each percentage of disability – basically, like the “Kelly Blue Book,” an auto dealership uses.
For many injuries, the process described above works well for many injured workers. However, because the charts used in the process are generic, there are unique cases where the charts do not tell the whole story – in other words, the generic rating is inaccurate.
The Physician May Assign a More Accurate Rating
What the claims administrator and their hand-picked doctor won’t likely tell you is that the physician has the discretion to assign a rating that is different than what the generic chart says in the AMA Guides 5th edition. For example, if the chart assigns a particular percentage to an injury, the law states a physician is entitled to assign a higher rating if it is justified. Milpitas Unified School District vs. WCAB (Guzman),187 Cal. App. 4th 812 (2010). It often requires a deposition to assure the doctor takes into consideration all unique factors in your case. There are other methods to assure an accurate rating as well.
The Physician May Assign a More Accurate Rating
Even if the doctor’s initial rating is accurate, the generic PDRS result may be inaccurate, and the law permits an injured worker to establish a different percentage than the PDRS assigns.
For example, I recently represented a lab worker who developed a work-related sensitivity to a particular metal. The treating physician and PDRS assigned a rating of 13% – which means 13% of the jobs in the California labor market were no longer available to him. However, my client explained that if he was exposed to this metal he would break out in extremely painful rashes, and unfortunately, this metal is EVERYWHERE – doorknobs, paperclips, staples, and even food.
After consulting with a job search specialist (vocational experts,) it was determined that my client was 100% disabled, and we were able to recover a far more accurate permanent disability award for him.
The bottom line is this: If you believe that your doctor is not paying attention to the seriousness of your injuries DON’T WAIT! Ideally, you should get advice BEFORE the doctor gives you a rating. If you already have a rating, consider getting advice before signing anything.
We are here to help. If you or someone you care about has a work injury, feel free to contact us today – (714) 547-5025.