Posts Tagged ‘workers’ compensation’

SEVEN MISTAKES YOU CAN AVOID WHEN INJURED ON THE JOB – PART 3

December 10, 2012

By: Richard H. Irwin, Esq.,
Certified Workers’ Compensation Specialist

5.    IF CONTACTED BY INSURANCE COMPANY – If you are contacted by the insurance carrier (or their investigator) regarding a “statement” that they want to obtain from you – if you are represented, contact your attorney immediately. If you are not represented let the person know that you will be more than willing to speak with them, but you will not agree to a recorded statement and you will not sign any statement.

Do not let them convince you that you must, by law or otherwise, provide a recorded or signed statement (other than a signed claim form )as to how your injury occurred, any previous injuries you have had, the doctors you are seeing, your current treatment or the parts of body you are claiming injured, as well as your current symptoms and complaints. It would be a mistake to either let your “statement” be recorded or let an interviewer prepare a statement and ask you to sign it. The reason for this is because, without proper representation, you could say something potentially damaging to your claim, say something that effects your ability to receive benefits or fail to state something that could have an equally disastrous consequence.

SEVEN MISTAKES YOU CAN AVOID WHEN INJURED ON THE JOB – PART 2

November 6, 2012

by Richard H. Irwin, Esq.,
Certified Workers’ Compensation Specialist

3.  SDIDo not delay File for State Disability Benefits through Employment Development Department as early on as possible in your case – even if you are receiving monetary benefits for Workers’ Compensation from your employer or their insurance carrier. Filing for such benefits, even if denied initially, will usually help to establish a “claim date” that will allow you to pursue such benefits at a later date when, for example, your Worker’s Compensation benefits cease.

It is not unlawful to file for such benefits at the same time you are receiving your Workers’ Compensation benefits, although you cannot receive full SDI benefits in addition to your Workers’ Compensation benefits.

4.  DO NOT REPRESENT YOURSELF – At least not without first speaking with an attorney experienced in handling Workers’ Compensation matters. Would you do your own heart surgery? Representing yourself in a system mired with complex litigation issues may not be a life and death matter, but your decisions, if in error, could cost you thousands of dollars, delayed or denied medical care, and/or substantial delays.

We’ve represented clients who came to us after having represented themselves for months, even years. In certain cases, they failed to file documents or pursue benefits in a timely manner, costing them thousands of dollars in benefits. Don’t let this be you.

(TO BE CONTINUED ON OUR NEXT BLOG)

SEVEN MISTAKES YOU CAN AVOID WHEN INJURED ON THE JOB

July 30, 2012

By Richard H. Irwin, Esq.
Certified Workers’ Compensation Specialist
(State Bar of California)

1. REPORT THE INJURY – If you are injured on the job report your injury. Ask your employer or a DWC1 (claim form). Fill it our and request a copy for your own records.

If you work for a small company and you are uncertain if they are insured for work-related injuries or how they will treat you once you report your injury, immediately document the fact that you submitted a claim form. This can be done by requesting a copy signed as received by your employer/sending a letter to your employer confirming that you reported an injury on a certain date. You might even text your employer or supervisor if he or she uses a cell phone.

2. SEE THE DOCTOR – If you believe your injury requires medical treatment or evaluation, ask your employer to see a physician immediately. This is not only the best way to ensure that your injuries are attended to, but the best way to document your injuries.

In fact, when you see the physician make certain that you indicate all symptoms that you are having and parts of your body that you believe were injured. Failure to mention a symptom or part of body may be used against you if you pursue the claim further.

(CONTINUED ON OUR NEXT BLOG)

WHAT TO DO AFTER A WORK RELATED INJURY

July 13, 2012

By Spencer E. Archie, Paralegal to:
RICHARD H. IRWIN, ESQ.
Certified Workers Compensation Specialist

The general and safe response is that all injuries should be handled the same way, however, that methodology may not be practical in the course of your work day. Any injury that causes you to believe that you need the care of a doctor should be reported immediately.

The person(s) that is considered your immediate supervisor is the person or persons you should first notify of your injury. In as clear and precise manner as possible, report to your supervisor exactly how the injury happened, noting the time and place where the event occurred. If the injury is serious enough for medical attention, request and insist that they send or take you to their emergency center for care.
Your employer must give you a DWC-1 claim form within one (1) day of knowing that you were injured. Filling out the claim form opens up your workers’ compensation claim. State law also lays out benefits beyond the basics that you may qualify for once you file the claim form with your employer.

If your employer does not give you the DWC-1 claim form, ask your employer for the form or call the claims administrator to get it. The claims administrator is a person or entity handling your employer’s claims. The name, address and phone number of this person should be posted at your work place in the same area where other work place information, such as where the minimum wage is posted. You can also get the form from the Division of Workers’ Compensation (DWC) web site at http://www.dwc.ca.gov. In the left navigation pane, under I Want To, click on Find a Form.

Heiting & Irwin has over 100 years combined experience assisting injured persons. Our Workers’ Compensation department is supervised by Richard H. Irwin, Esq., a California State Bar Certified Specialist in Workers’ Compensation. If you or someone you know has been injured, it is important to consult with an experienced, knowledgeable attorney in a timely fashion. To schedule a free consultation, please call our office at (951) 682-6400.

IS THE EMPLOYER RESPONSIBLE FOR INJURIES THAT OCCUR ON THE WAY TO OR FROM A MEDICAL APPOINTMENT?

June 20, 2012

By Debbie A. Beals, Paralegal to
Richard H. Irwin, Esq., Certified Workers Compensation Specialist

An employer bears the risk of incurring compensability liability under the California Workers’ Compensation Act for an injury suffered in route to or from a medical appointment related to an existing compensable injury.

If an employee suffers a new injury while traveling a reasonable distance, to or from a medical appointment for an existing compensable claim, the new injury will also be compensable. However, the employer will incur no liability if the employee travels an unreasonable distance to where the medical treatment was to occur and beyond “ the reasonable geographic area of his or her employer’s compensability risk.”

Each incident must be evaluated on a case-by-case basis with consideration being given to:

1) the location of the employee’s residence;
2) the location of employee’s workplace;
3) the location of the medical facility;
4) the location of the employee’s attorney;
5) the location where the new injury occurred;
6) the route the employee takes to deviate from an reasonable direct route to the medical facility;
7) the availability of providers or medical specialists;
8) the distance between the medical provider’s office and the employee’s point of departure; and
9) the employee’s reason why travel was beyond “the reasonable geographic area of his or her employer’s compensability of risk.”

Limited provisions is implied in Labor Code, Section 4600.

Heiting & Irwin has over 100 years combined experience assisting those who have suffered injuries due to the negligence of another, and has an entire department devoted to Workers’ Compensation matters supervised by Richard H. Irwin, a Board Certified Specialist in Worker’s Compensation. If you or someone you know has been injured, it is important to consult with an experienced, knowledgeable attorney in a timely fashion. To schedule a free consultation, please call our office at (951) 682-6400.

Injured on the Job? File for State Disability Benefits!

February 29, 2012

By Richard H. Irwin, Esq.

For the majority of the California Workers’ Compensation injury claims there is now a 104 week limit for temporary total disability – compensation payments made to an injured worker while unable to work because of the injury. This benefit is paid based upon two-thirds of an employees’ average weekly wage (up to certain state maximum weekly amounts) while a physician has indicated that the individual is “totally temporarily disabled”.

Unfortunately, for injuries after 1/1/08 this benefit is limited to a total of 104 weeks within the first five (5) years from the date of injury. The result is that individuals with serious injuries may lose this benefit they so desperately need prematurely; based upon the fact their period of being totally temporarily disabled lasts for more than a total of 104 weeks during this period. If, however, they filed for SDI (State Disability Insurance) they may be able to receive this benefit, or an amount substantially similar to said amount, for an additional year.

The difficulty, however, is that SDI bases it’s weekly benefit entitlement on earnings of the individual preceding their filing of a claim for SDI. As such, if an individual waits several months after their injury before filing for SDI they may have little, if any, earnings during the period preceding their claim due to the fact that they have been out of work, with no earnings upon which pay a State Disability benefit.

To avoid this pitfall, it is recommended that the injured worker file for SDI immediately after their injury even though they may be entitled to, or already receiving, temporary total disability benefits under the Workers’ Compensation system. In this manner, although they are not entitled to receive duplicate benefits (and are typically denied SDI benefits) they will have established their claim date so that when their temporary total disability benefits run out and they still have a physician certifying that they are unable to work they can usually collect up to another year of benefits – via State Disability. This can be a substantial benefit to anyone who has sustained a serious work-related injury.

WHAT TO DO AFTER A WORK RELATED INJURY?

March 23, 2011

The general and safe response is that all injuries should be handled the same way, however, that methodology may not be practical in the course of your work day. Any injury that causes you to believe that you need the care of a doctor should be reported immediately.

The person(s) that is considered your immediate supervisor is the person or persons you should first notify of your injury. In as clear and precise manner as possible, report to your supervisor exactly how the injury happened, noting the time and place where the event occurred. If the injury is serious enough for medical attention, request and insist that they send or take you to their emergency center for care.

Your employer must give you a DWC-1 claim form within one (1) day of knowing that you were injured. Filling out the claim form opens up your workers’ compensation claim. State law also lays out benefits beyond the basics that you may qualify for once you file the claim form with your employer. These benefits include, but are not limited to:

● A presumption that your injury/illness was caused by work if your claim is not accepted or denied within 90 days of giving the completed claim form to your employer;

● up to $10,000.00 under medical treatment guidelines while the claims administrator considers your claim;

● an increase in your TTD disability payments if they are late;

● a way to resolve any disagreements that might come up between you and your claims administrator over whether your injury or illness happened on the job, the medical treatment you receive and whether you will receive permanent disability benefits.

If your employer does not give you the DWC-1 claim form, ask your employer for the form or call the claims administrator to get it. The claims administrator is a person or entity handling your employer’s claims. The name, address and phone number of this person should be posted at your work place in the same area where other work place information, such as where the minimum wage is posted. You can also get the form from the Division of Workers’ Compensation (DWC) web site at http://www.dwc.ca.gov. In the left navigation pane, under I Want To, click on Find a Form.

Heiting & Irwin has extensive experience handling Workers’ Compensation matters.  Mr. Irwin is a recognized specialist in Workers’ Compensation law. He has been certified as a specialist by the State Bar of California since 1995.  If you or anyone you know has been in a work related injury, please do not hesitate to contact our office at (951) 682-6400 or visit our website: www.heitingandirwin.com.

Workers Compensation "Reform"-At what cost?

January 22, 2010

Workers’ Compensation “Reform”- At what cost?

By Richard H. Irwin, Esq. (Heiting & Irwin)

While it was interesting to read the article authored by one of my learned colleagues in the February’ 09 (Volume 59, Number 2) issue of this magazine, I feel compelled to respond on behalf of the injured worker. After all, that article, although written by someone whom I hold in high regard for her knowledge and professionalism, has a clear and undeniable defense perspective, which “perspective” is admitted to in the opening to her article.

First, she made some valid points. Specifically, there were, in the 1980s, some unscrupulous medical providers who took advantage of not only the system, but also the injured worker. However, many law firms representing injured workers would seek out credible reporting physicians who would not take advantage of the system or the injured worker. In fact, in addition to the obvious reasons for doing this, this was done because it did not take long for these “physicians” to obtain a reputation not worthy of most reputable medical practitioners, with the result that workers compensation judges also felt their opinions were “not worth the paper they were written on”.

In discussing the “Boom of the 1980s” the author stated that “employees took advantage of long periods of temporary disability, then vocational rehabilitation and generous permanent disability settlements [emphasis added]”. Quite frankly, having represented injured workers for over twenty-eight years, such statements concern me. Specifically, it is unfair to suggest that all employees, or for that matter, even the majority of them, took advantage of anything, especially those injured workers with serious injuries. For instance, temporary disability only paid them two-thirds of their average weekly wage up to a maximum “capped” figure. If their earnings were significantly higher, they would not be compensated for any of that loss above the cap. This could, and often did, have devastating financial consequences, for injured workers and their families.

Likewise, what was wrong with the idea of vocational rehabilitation? If an injured worker was unable to return to his or her usual and customary job, at least there was an effort by the workers’ compensation system to return them to work such that they could once again contribute to society and take care of their family. That is not true today.

Similarly, to suggest that permanent disability settlements were “generous” distorts reality. Although there were times when, an injured worker could obtain a significant amount for his/her permanent disability, this was usually accompanied by a significant and life-long disabling condition, many times with intractable pain and extreme physical limitation that would impact the quality of life, their ability to return to work and their family forever. Although a few individuals made for good headlines by abusing the system (including claimants and insurance companies) many deserving employees with severe injuries received nominal compensation that did not come close to adequately compensating them; and their needs were not (and often are not) addressed by the system. In fact, the insurance industry, for obvious reasons, does not want this side of the story to be told.

In the discussion of the 1989 and 1993 reforms the $16,000 vocational rehabilitation “cap” is only briefly touched upon. While it is true that this “cap” was developed to limit costs, and also to streamline the vocational rehabilitation process. It largely limited the applicant to three to six month vocational trade schools, with no guarantee (and a limited likelihood) of employment. In fact, usually $4000-4500 of this $16,000 was paid to a qualified rehabilitation representative who “guided” and “assisted” the applicant in forming a vocational rehabilitation plan and to provide assistance until the conclusion of the vocational rehabilitation program. In addition, the injured worker was previously provided a vocation rehabilitation benefit that provided a maximum of $246/week (wow!) paid to them during the vocational rehabilitation plan. This left very little for the expense for educational retraining and limited the employee to a short term program, often with short-term or no meaningful results.

During the period from 1994 to 2003, the February 2009 article references the 1994 deregulation of the workers’ compensation insurance industry, by indicating that by 1997 some “major” workers’ compensation insurance companies were going out of business in California. It should, however, be pointed out that some insurance companies appeared to use deregulation to undercut their competition to the point that certain of those companies claimed they could no longer afford to do business here. Some who weathered this, though, acted to quickly recoup their (alleged) “losses” by increasing premiums to historically new levels – while blaming the injured worker rather than either their own greed or their own careless management.

But the main focus of my angst and concern from the articles is the April 2004 “reform” legislation (S.B.899).

For years before these “reforms”, workers compensation carriers in California were making significant profits under a system that essentially froze the benefits for injured workers from 1996 through 2002. Then, in 2003, when benefits to injured workers were increased to balance the freeze, the insurance industry put its substantial power, lobbyists and money behind an effort, not only to halt the balancing increase in benefits that the injured worker had waited for over seven years for, but also to further limit the rights and benefits of the injured worker and to increase their own “bottom line” that much more.

Our governor, unfortunately, turned a deaf ear to the needs of the injured employees of the State of California and instead chose to listen to his friends within the insurance industry. The result is a bill fraught with “reforms” that have had the effect of driving the injured worker into greater financial distress and, in many cases, onto public assistance programs or out of the work force entirely. These “reforms” include:

1) The total elimination of any vocational rehabilitation retraianing program for the injured employee who, because of his or her injuries, cannot return to work even in a job that they may have had for several years. The result, obviously, is even more disastrous when you consider the difficulty of their returning to work after having worked in only one industry for the majority of their adult life, and they are now required to search for a job in another, and often unrelated field, with a known and documented, and often obvious, permanent impairment.

2) A reduction in permanent disability benefits of between, in many cases, 50-70%!

This has always been intended to be an amount to assist the worker during a time necessary to recover to the extent possible and to reenter the work force, when a permanent physical or mental impairment has resulted from their injury. To reduce this benefit by such an amount is unconscionable and often has a devastating impact upon an injured worker and their family.

3) A medical utilization review by a physician who will never actually examine the injured employee, who is often out of state, reviewing the medical procedure requested by the injured worker’s often long-time treating physician and making a determination that denies or substantially denies or delays a much needed medical test, procedure, or treatment.

4) A limitation of temporary disability payments to 104 weeks from the date of the first payment. As a result of this unique “reform”, in many cases, if an injured worker collected only a couple of weeks or months of temporary disability after their initial injury, but then more than two (2) years later their condition (for example a disease or a significant low back injury) flared up or deteriorated to the point that they needed surgery, they could be denied any temporary disability. Yet they would be out of work for several weeks or months, recovering from surgery. For injuries after January 1, 2008, the injured worker can now receive a maximum of two years of temporary disability to be paid within five years from the date of injury. Again, even in very serious cases, when the injured employee may be temporarily yet totally disabled for greater than two years, no further TTD benefits will be paid.

5) Apportionment (i.e. a attributing a portion) of disability to an underlying degenerative condition. Even if the individual had absolutely no symptoms or disability attributable to said underlying condition before their work injury, and, arguably, even if the individual could have gone for years, or even a lifetime without ever experiencing symptoms or disability, under the new legislation, a portion or percent of overall disability will be attributed to this asymptomatic and non-disabling condition, reducing the permanent disability benefit.

To make matters worse, every physician I have ever deposed states that degenerative processes are synonymous with the aging process. As such, by permitting apportionment (and the resulting reduction of benefits) to the aging process, this bill is effectively discriminating against injured workers on the basis of age. This is improper and unlawful, yet now sanctioned by this reform legislation.

The previous article asked the question “How has the 2004 reform worked?” In response, let me say that if by “working” you mean that it:

* Has unjustifiably cut many injured workers recoveries by up to 50 to 70 percent;

* Has totally eliminated the ability of an individual who cannot return to the workforce to receive any retraining/vocational assistance;

* Has severely limited temporary disability benefits even in the most serious injury cases, where they are so greatly needed;

* Allows physicians who never see or examine the injured employee to deny and delay reasonable treatment requests by their long-time treating physicians;

* Allows an individual’s work-related disability to be reduced because of age and/or condition(s) that never had resulted in symptoms or disability and which, absent the work injury, never would have;

* Limits physical therapy to a set number of visits (even if post-surgically there is a recommendation for additional therapy);

-then I guess you could say its “working”.

Personally and professionally I have a problem with a system which was created to properly “compensate” the injured employee in lieu of allowing the right of independent civil actions against employers for work injuries, when inequities and unfairness abound.

Equally of concern is the stated fact that many applicant (injured worker) attorneys have left the practice and that, if the current schedules or benefits continue, “very few attorneys will be representing injured workers”. What a travesty it would be if the employee who is the backbone of our economy and who is already being denied rights, benefits and privileges, by this legislation is also effectively denied representation – denied help! Is this “reform”? Is this change for the good?

There is no question that the reforms have reduced costs to insurance carriers, that profits are up – but at what cost to the injured worker? The cost is much too high. We should all want our injured workers to have just and fair rights and benefits, without which he or she, and their family, will not thrive, and in some cases will not survive.

Don’t we owe an obligation to those workers that provide services to and on behalf of their employers, our community and our State on a daily basis, risking injury and, at times, their life, for and in the service of others? Maybe our priorities need to be reevaluated.

This article originally appeared in the November issue of the Riverside Lawyer