Types Of Workers Compensation Settlements Negotiated By An Orange County Workers’ Compensation Lawyer
As a top Orange County workers’ compensation lawyer, Thomas F. Martin, PLC explains the main types of settlement formats options in workers’ comp law:
- Stipulated Findings and Award
This type of settlement is an option when an injured worker and the employer (or its insurance company) agree on the permanent disability rating and need for future medical treatment. The stipulation is the parties’ agreement about the findings of the case. These findings include the disability rating percentage, the fact that a work injury caused the disability, and the need for future medical care.
When the settlement paperwork is presented to a workers’ compensation judge, the agreement will have the same force and effect as if the Judge made the findings after a trial. In most cases, after obtaining the medical reporting and other evidence, the parties are often able to agree on what the Award should be.
A Stipulated Findings and Award settlement will require the insurance company to make a payment to the injured worker every two weeks for a specified period of time depending on the percentage of permanent disability. Sometimes, if the insurance company has not paid the permanent disability owed, a lump sum payment be paid to the injured worker to catch up on the payments owed according to the agreement.
This settlement is common in cases when an injured worker continues to work for the same employer.
- Compromise and Release
An Orange County workers’ compensation lawyer may negotiate a Compromise and Release if the injured worker wants to close out all rights in the case, including the right to request future medical treatment. In these cases, the injured worker accepts a lump sum of money to settle the worker’s compensation claim and close the case forever.
The workers’ compensation judge must still review approve the Compromise and Release to ensure it’s fair. Most Compromise and Release settlement agreements are approved if the worker has an experienced Orange County workers’ compensation lawyer representing them.
One advantage of this type of settlement is the immediacy of payment. Workers don’t need to wait for installments payments but receive the full payment. In many cases, clients receive a more favorable financial payment since insurance companies prefer not to be under any future obligation.
- Hybrid settlement
An experienced Orange County workers’ compensation lawyer may be able to negotiate a Compromise and Release ( closing out all rights for a lump sum) AND have future medical care left open in certain cases.
Injured While Working At Home? What You Need To Know.
The pandemic has forced many businesses to rethink how work gets done. While employees working from home may have started as a temporary necessity, it is becoming increasingly clear that the format is here to stay for many businesses.
So what happens if you are injured while working from home? Surprisingly, laws have been on the books long before the COVID-19 pandemic.
When Is Your Home Considered A Second Worksite?
The California courts have addressed when a home becomes a second worksite for decades.
In Bramall vs. WCAB (1978), the Court determined certain factors that should be considered:
1) Was working from home a benefit to the employer?
2) Did the employment circumstances, rather than the employee’s convenience, require working from home?
3) Each claim must be analyzed based on the individual facts presented.
The courts have increasingly recognized that work is being processed outside of the business’s four walls. In CIGA vs WCAB (Schnieder) (2002) the Court held that since the employees’ laptop permitted him to “work anytime and anywhere” and because the employer expressly allowed the employee to work outside of the office, the injury was found to be work-related.
More recently, a court held in Santa Clara Valley Transportation Authority vs. WCAB (Tidwell)(2017) that an employee’s injury in the bathroom at home was work-related. The Court determined that since the employee could not use the employer’s restroom due to a pre-existing disability and gave the worker permission to work from home, the worker was entitled to workers’ compensation benefits.
Each Case is Unique
As the Court indicated in Bramall, each case has to be analyzed based on its unique facts.
Did the employer require work from home? Even if the employer didn’t explicitly require it, did the employer knowingly permit it?
During the COVID-19 pandemic, an employer benefits by avoiding a concentration of employees at its worksite, decreasing the chance of transmission of the virus between its employees.
Even if the employer required work from home, how did the injury occur? – lifting a box of work files or tripping over a toy on the floor? If the home is a second worksite, are all injuries at home, work-related? What about tripping over a shoe after work hours are over?
These are the factors that the Court will weigh when deciding if an injury suffered at home is covered by workers’ compensation.
Clues To A Quality Workers’ Comp Attorney in Orange County
Not all lawyers are made equal. Some actually routinely go to court, and others spend their time promoting their catchy nicknames on billboards, radio and TV. Some even have songs that tell you absolutely nothing about their skill as an attorney.
When people suffer a work injury, it’s serious business. You deserve information about the lawyer that tells you what makes them qualified to help you navigate the California workers’ compensation system.
What qualities does a truly exceptional workers’ comp attorney have in Orange County?
- Communication With A Lawyer – Not A Paralegal
Clients have a right to know where their case stands at every point of the legal process. Having access to the attorney that is representing you shows they are personally involved in your case.
Some law firms have dozens of non-lawyers processing your claim. Why hire a law firm if you hardly ever get to talk to a lawyer? Does the lawyer even now about what is going on in your case? Or is he or she just relying on their staff to deal with the issues of your case?
Cases, like people, are dynamic – things can change rapidly. Is the lawyer available for unexpected developments? Is the lawyer ready to get a court date to deal with the problem, or are you going to just get talk from the non-lawyers at the firm? These are questions to ask BEFORE you hire a workers’ compensation attorney.
- Reliability
A workers’ comp lawyer should do what he or she says they are going to do. Ask the attorneys you are considering to help you what the game plan is on your case, and how they plan to give you feedback on your case.
If, for example, benefit checks suddenly stop coming without explanation, clients should be able to contact their lawyer immediately. There could’ve been a technical mistake or the insurance company could’ve decided benefits are no longer necessary, despite doctor’s orders. Can you rely on your lawyer to have a game plan? Or are you going to get the run around by the firms non-lawyers? Ask how such things will be handled BEFORE you decide on a lawyer to hire.
- Attentiveness
When interviewing lawyers to hire, are you sensing that the lawyer is paying attention to the unique aspects of your case, or are they just running through their “script”? If you aren’t straight answers to your questions, that may be a sign that you will be treated the same way as a client
An attentive lawyer will HEAR what you are saying, and do his or her best to answer your questions. know the details of every settlement offer — even if it’s unacceptably low — and share that information with their client before rejecting the offer.
- Strong Negotiation Skills
Insurance companies know who the prepared attorneys are. Making certain that your case is fully documented is hard work, and it puts your lawyer in a strong position to negotiate the result you deserve. If the insurance company is dealing with an attorney that is routinely unprepared or relying on non-attorneys to handle your case, your case is not going to be taken as seriously. Ask the lawyer you are interviewing how they process cases and what their reputation is for being prepared BEFORE hiring them.
- Preparation
The successful outcome of a case depends on the lawyer’s commitment to preparing the case for trial. Ask the lawyer if he or she is PERSONALLY preparing the case for the Judge, and PERSONALLY appears before the Judge BEFORE you hire them. If all the lawyer is relying on non-lawyers to do the critical work and appearances on the case, you deserve to know that ahead of time
- Knowledge About The Workers Compensation System
Does the lawyer you are interviewing doing a lot of different types of law, or ONLY workers compensation? Are they recognized by a past client and other lawyers as a skilled and ethical lawyer? An experienced workers’ comp attorney in Orange County is known and respected for their knowledge and skills.
Making The Decision
Look for these qualities in a workers’ comp lawyer before retaining a workers’ compensation attorney. It can make a big difference in the outcome of your case and your life.
How A Orange County, CA Workers’ Compensation Lawyer Can Help You
If you’ve never sustained a work injury before, the prospect of going through the legal process can seem daunting — especially if you’re receiving medical care and struggling to figure out how to manage other daily responsibilities. However, not all work injuries require an Orange County, CA Workers’ Compensation lawyer, so it’s important to know what to consider to decide whether to hire an attorney.
Should You Consider Hiring an Orange County, CA Workers’ Compensation Lawyer?
- Your employer or insurance carrier denies the accident is work-related.
Minor work injuries are often denied by the employer or insurance company. If an injury goes untreated, it could become more serious, and even provide an excuse for denying the injury. Injuries that occur over time, such as exposure to toxic chemicals or repetitive activities, such as typing or lifting need to be documented by a physician as soon as possible.
A workers’ comp attorney in Orange County, California could help a worker secure the proof necessary to obtain the compensation an injured worker deserves.
- Your employer isn’t taking your injury seriously.
It is the employee’s job to report the accident or injury to the employer as soon as possible. Once the employer is notified, it is their responsibility to follow California law and report the injury to its workers’ compensation carrier.
If your employer refuses to report your injury to its workers’ compensation carrier, or the carrier hasn’t contacted you within a week after you reported the injury to your employer, consider contacting a workers’ comp attorney to take appropriate actions on your behalf.
- You anticipate permanent disability.
If you anticipate permanent disability, you may not be able to return to the work you were performing at the time of the injury. Your future income may be reduced due to the injury and you may be entitled to permanent disability compensation to address your reduced earning capacity. Insurance companies are more likely to fight and deny claims with permanent disability because they tend to cost insurance companies more money.
- The insurance company refuses to pay for doctor-recommended treatment.
Insurance companies often deny much-needed medical treatment – even when their own doctors recommend it! An experienced Orange County, CA workers’ compensation lawyer can help you get the treatment you need so you can get back to work.
- The insurance company denies your legitimate claim.
When your legitimate claim is denied by an insurance company, a workers’ comp attorney can assist in gathering the information and documentation your will need to have a workers compensation judge decide the issue.
- The insurance carrier makes an inadequate settlement offer.
If the settlement offer made by the insurance company makes you a settlement offer that doesn’t come close to considering your financial losses and permanent injury, you may want to consider securing legal representation. Most permanent disability claims are valued based on the rating provided by an examining doctor. If the insurance company disagrees with a treating doctor’s rating of your permanent injuries, you have a right to an independent physician evaluation arranged by the State of California. A workers’ comp lawyer can assist you in documenting the permanent injury compensation you are entitled to.
- You have a preexisting condition.
Insurance companies try to blame your current Permanent Disability on “preexisting conditions” – even if you recovered from prior injuries and conditions. A workers’ compensation attorney can help you fight the insurance companies’ attempt to get a “discount” on the permanent disability compensation you deserve.
- You intend to file for Social Security Disability Insurance ( SSDI ) benefits.
There is a potential interaction between SSDI benefits and workers’ compensation benefits. A workers’ comp attorney can help you navigate these issues, and potentially reduce offsets.
- You experience employer retaliation due to your work injury.
If the employer fires or demotes you, cuts your hours, or pressures you to return to work too soon, you may have additional claims against the employer.
- Someone else is responsible for your work injury.
In addition to having a workers compensation claim, “third-parties” (a person or company other than your employer) may also be responsible to compensate you for the injuries you sustained. A workers compensation attorney can assist you in securing workers’ compensation benefits and also recover your damages in a personal injury case against the third party that caused your injuries while you were working.
Searching for the top Orange County, CA Workers’ Compensation lawyer? Contact the law offices of Thomas Martin, PLC for a free consultation.
A Couple of Wins for Us Workers
While the pandemic has dominated the news this year, the war over workers’ rights to free speech and fair pay and benefits has raged on. Here are a couple of recent wins for us workers:
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California Supreme Court Rules on Premium Payments for Meal, Rest, and Recovery Break Violations
In Ferra v. Loews Hollywood Hotel, LLC, the California Supreme Court unanimously ruled that employers must pay premium payments to employees for missed meal, rest, and recovery breaks at the employee’s “regular rate of pay” instead of their base hourly rate, as many employers were doing. The regular rate of pay must include all non-discretionary incentive payments, such as bonuses and commissions. As a result of this decision, California employers should expect a wave of class action and Private Attorney General Act (PAGA) claims.
Jessica Ferra was a bartender for Loews and earned an hourly wage, in addition to quarterly non-discretionary payments. The employer-provided employees with payments for meal, rest, and recovery breaks at the base hourly wage. The case was ruled in favor of Loews by the trial court and appellate court but was reversed by the California Supreme Court.
California law requires daily overtime rates to be multiples of employees’ regular rates of pay. According to National Law Review, “The overtime rate for workers who are paid a guaranteed hourly rate and performance-based incentive bonuses or piecework earnings take those incentive payments to be part of their regular rates—making the overtime pay greater than their base hourly rate. An employee is thus entitled to one and one-half times his or her regular rate of pay for time worked in excess of 8 hours in one day and double his or her regular rate of pay for time worked more than 12 hours in one day.”
The reasoning behind the decision took into consideration research that shows long work hours are linked to increased rates of accident and injury. In addition, family life is negatively impacted when one or both parents are away from the home for an extended period of time on a daily basis. The court mentioned that the higher overtime rate will disincentivize employers from requiring overtime.
The decision was applied retroactively, despite the risk of potential lawsuits targeting employers for “millions” in liability. However, Loews did not provide any evidence that the retroactive application will expose employers to “millions” in liability.
In light of this ruling, California employers should update their premium pay systems, provide restitution payments, consider modifying or eliminating compensation programs, adopt waiver programs, and implement an attestation program that allows employees to confirm they received legally compliant opportunities to take meal, rest, and recovery breaks.
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Former San Diego Healthcare CEO Convicted of Fraud
Sam Sarkis Solakyan, 40, of Glendale, was convicted by a San Diego federal jury of orchestrating a scheme in which more than $250 million in claims for medical services were fraudulently submitted through the state workers’ compensation system.
According to the US Department of Justice, “Solakyan conspired with Steven Rigler, a Solana Beach-based chiropractor; Fermin Iglesias, the former CEO of MedEx Solutions, a patient-scheduling company; and others to perpetrate a scheme in which physicians were paid bribes and kickbacks in exchange for the referral of workers’ compensation patients.” Also known as a cross-referral scheme, the compensation offered to the corrupt doctors consisted of either cash or referrals of new patients.
The conspirators entered into various sham agreements, such as contracts for “marketing”, “administrative services”, and “scheduling”, to obscure the true nature of their financial relationships. In reality, the money paid by Solakyan amounted to volume-based, per- magnetic resonance imaging (MRI) scan bribes and kickbacks to induce physicians to refer and continue referring patients to Solakyan’s companies.
Solakyan’s recruiters — Fermin Iglesias and Carlos Arguello — earned more than $8.6 million for obtaining MRI referrals. These payments were concealed from patients and health insurance companies.
According to the US Department of Justice:
- Rigler pleaded guilty in November 2015 to one count of conspiracy to commit honest services mail fraud and was sentenced to six months in federal prison.
- Arguello pleaded guilty in August 2016 to conspiracy to commit honest services mail fraud and health care fraud and was sentenced in April 2019 to four years in federal prison.
- Iglesias pleaded guilty in December 2016 to conspiracy to commit honest services mail fraud and health care fraud and was sentenced in February 2019 to five years in federal prison.
An October 4 sentence hearing has been scheduled, at which time Solakyan will face a statutory maximum sentence of 240 years in federal prison.
Solakyan was the CEO of several medical-imaging companies, including San Diego MRI Instute and Glendale-based Vital Imaging Inc. He operated diagnostic imaging facilities throughout California, including San Diego, Los Angeles and Orange counties, and the Bay Area.
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What an Experienced Work Injury Lawyer Can Provide For You
If you have suffered a work-related injury and are planning to file a claim, it is important to hire an experienced California work injury lawyer to handle your claim. The guidance offered by the lawyer can not only make the claims process less stressful for you, but also help you get the compensation and benefits you are entitled to.
What can an experienced work injury lawyer provide for you to help you get the compensation you deserve? Let us take a look.
Legal Advice And Guidance
If you have never filed a work injury claim before, you might be wondering whether you are eligible to file one, how the claims process works, and what kind of benefits you are entitled to receive.
An experienced lawyer can answer all your questions, explain your rights as a worker, and tell you how much you can expect to receive in compensation. They will also tell you how the claims process works, how long it usually takes to settle a claim, and whether your case is likely to go to trial.
Handling The Paperwork
One of the biggest advantages of hiring an experienced California work injury lawyer is that they can take care of all the paperwork related to your claim. From gathering the required medical records to taking depositions of medical experts, the lawyer will take care of everything and allow you to focus on your recovery.
Dealing With The Insurance Company
The last thing you want to do when you are recovering from an injury or illness is to deal with a belligerent insurance adjuster who might try to delay or deny your claim for the flimsiest of reasons. With an experienced work injury lawyer by your side, you do not have to worry about handling the insurance adjuster, as the lawyer will do it on your behalf.
Moreover, insurance companies tend to be aggressive while dealing with injured workers who do not have proper legal representation, as they know that the claim can be easily settled for a fraction of what it is actually worth.
On the other hand, when you are represented by an experienced work injury attorney, the insurance company is likely to be reasonable in their approach, as they know that your attorney will not hesitate to let the case go to trial if needed. This is why injured workers who are represented by qualified attorneys tend to get more compensation and receive more benefits compared to those who represent themselves.
Looking For The Right Work Injury Attorney to Handle Your Claim? Look No Further!
Attorney Thomas F. Martin has been handling work injury claims for over 25 years and has a track record that few other attorneys can boast of. Having handled thousands of claims over the years, Mr. Martin knows how to deal with insurance companies and get the settlement you deserve.
No matter how complicated or contentious your work injury claim is, attorney Thomas F. Martin can handle it and fight aggressively to get the compensation and benefits you are entitled to.To obtain the best legal advice about your workers’ comp claim, you should speak to dedicated California work injury attorney Thomas F. Martin as soon as possible. Call us at 714-547-5025 or send us a message online to set up a free case evaluation.
How a Family Can Benefit From Workers’ Compensation After The Loss of a Loved One
Losing a family member due to a work-related injury or illness can be devastating. Especially, if you were financially dependent on the deceased person, you might be worried about your financial security and wellbeing.
Under California law, dependents of a worker who die as a result of a work-related injury or illness are entitled to receive workers’ compensation death benefits, which are meant to cover the loss of financial support caused by the worker’s death.
Who is Eligible to Receive Death Benefits in California?
Under California law, family members and relatives – who were partially or totally dependent on the deceased worker – are eligible to receive workers’ compensation death benefits. These include:
- Spouse
- Children (biological as well as adopted)
- Grandchildren
- Parents
- Siblings
- Grandparents
- Uncles and aunts
- Nephews and nieces
- In-laws
The following people are considered total dependents under the law and are not required to show any proof of their dependency on the deceased worker.
- The deceased worker’s spouse (if they made $30,000 or less in the year prior to the worker’s death)
- Children under the age of 18
- Children over the age of 18, but are incapable of earning a living due to a physical or mental disability
If the spouse earned more than $30,000 in the year prior to the worker’s death, they have to prove that they were totally or partially dependent on the worker in order to be able to file a California workers’ compensation death benefit claim.
Similarly, other family members and relatives (apart from the ones listed above) are required to prove dependency in order to be able to file a claim and receive compensation.
How Much Can Dependents Receive by Filing a Workers’ Compensation Death Benefit Claim?
The amount of compensation paid in these claims usually depends on the number of dependents and whether they were partially or totally dependent on the deceased worker.
As of today, the compensation offered for dependents of deceased workers includes:
- $10,000 for burial expenses
- $250,000 (if there is only one total dependent)
- $290,000 (if there are two total dependents)
- $320,000 (if there are three or more total dependents)
If there is only one total dependent and one or more partial dependents, the workers’ compensation death benefit is paid in the following manner:
- $250,000 for the total dependent
- Four times the annual earnings of the worker (as long as the amount does not exceed $290,000) for the partial dependents
If there are no total dependents and one or more partial dependents, a sum of money equivalent to eight times the annual earnings of the deceased worker (as long as it does not exceed $250,000) will be paid as compensation.
Looking to File a Workers’ Compensation Death Benefit Claim? We Can Help You!
Attorney Thomas F. Martin has over 25 years of experience in handling work injury and death benefit claims. If you have lost a loved one due to a work-related illness or injury, attorney Thomas F. Martin can help you file a death benefit claim and make sure you receive the compensation you deserve.
To explore your best legal options, you should consult with dedicated California workers’ compensation death benefit claim attorney Thomas F. Martin. Speak to us at 714-547-5025 or simply reach us online to request a free case review.
Why Psychological Disabilities Are Valid Considerations in Workers’ Compensation Law
The term ‘work injury’ is generally associated with physical injuries sustained by workers on the job. However, California is one of the few states that have adopted a much broader definition of the term – which includes psychological disabilities as well.
What is a Psychological Disability?
A psychological disability – also referred to as a psychiatric injury – is a mental disorder which is caused as a result of working conditions and requires medical treatment. Psychological disabilities can be caused by a number of factors including:
- Excessive workload, unreasonably short deadlines, and next-to-impossible targets
- Harassment and abuse in the workplace
- Witnessing or being exposed to a violent act in the workplace
How Psychological Disabilities Can Affect Workers
Research shows that mental health problems can take a toll on a worker’s performance, productivity, and their overall health and wellbeing. If not treated in a timely manner, mental disorders can reduce a worker’s cognitive performance by as much as 35%.
The drastic drop in productivity and performance can make it harder for the worker to compete with their coworkers and stay on top of the tasks assigned to them.
What Are The Criteria to be Met For a Psychiatric Injury Claim?
- You must have been employed at your current workplace for a period of at least six months. It does not necessarily have to be six months of continuous employment. Even short stints of employment over a period of time are applicable – as long as they add up to six months and under the same employer.
- The event of employment or adverse working condition in question must have been the predominant cause (at least 51%) of your mental health problem.
- The condition you are suffering from must be listed in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM – IV).
It should be noted that the predominant cause provision (51% rule) listed above does not apply to psychological disabilities caused as a result of a violent event or act at the workplace. In such cases, the worker only needs to prove that the violent act or event in question was one of the contributing factors (35% to 40%) to their mental health problem.
Importance of Choosing The Right Attorney to Handle Psychological Disability Claims
The eligibility criteria for a psychiatric injury claim are much stricter compared to that of a physical injury claim. Your employer will argue that the actions that caused your psychiatric injury were in fact good faith personnel actions and were not abusive or discriminatory in nature.
The insurance company, on the other hand, will dig into your personal life and try to find any information that can be used to counter or disprove your psychological disabilities claim. A skilled and experienced California workers’ compensation attorney can take on the insurance company’s legal team, prove that your psychiatric injury was caused as a result of adverse working conditions, and make sure your claim meets all the aforementioned criteria.
Looking to File a Claim for Psychological Disabilities? We Can Help You!
With his unmatched legal knowledge, experience, and resources, attorney Thomas F. Martin can provide you with high-quality, passionate legal representation and fight hard to recover the compensation you deserve. To explore your legal options, call us today at 714-547-5025 or contact us online to schedule a free consultation.
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