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Assisting Injured Workers: A Manual on Workers' Compensation.  The manual is reproduced below in HTML format.  Below you will see a detailed table of contents.  Each item will jump you to the portion of the manual that matches the table of contents.  Also when you scroll through the document, the references in it will be live.  Thus you will be able to click on the references to different laws, regulations, policies, etc. as you read the document and be directed to the source.

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Assisting Injured Workers: A Manual on Workers' Compensation for Legal Services Programs

ACKNOWLEDGEMENTS

TABLE OF CONTENTS

Why is Workers' Comp relevant to Legal Services Programs?

Chapter One, Introduction

Section I. What is workers' compensation?
Section II. Brief snapshot of the workers' compensation system

Section I. Who are covered employees within the workers' compensation system?
Section II. What does it mean to be "injured" within the workers' compensation system?
Section III. What does it mean to be injured "on the job" within the workers' compensation system?
Section IV. If a worker is injured and temporarily unable to work, he receives wage replacement payments called "temporary disability" while he is recovering.
Section V. Medical Treatments (LC § 4600)
Section VI. Permanent Disability (LC§ 4658)
Section VII. Worker Retraining
Section VIII. Death benefits (LC§ 4701 et seq.)
Section IX. Uninsured employers|
Section X. What if the employer deliberately engaged in serious and willful misconduct?
Section XI. What if the employer discriminated against the employee for filing a workers' compensation claim?

Section I. Third Party Claim
Section II. State Disability Insurance--Unemployment Disability Compensation (SDI)
Section III. State Disability Insurance--Family Temporary Disability
Section IV. Unemployment Insurance (UIC §§ 100-2115)
Section V. Sick leave or vacation time
Section VI. Federal or State Medical Leave Act
Section VII. Discrimination based on Disability (mental and physical) including HIV/AIDS or Medical Condition (cancer and genetic characteristics)
Section VIII. Victim of Violent Crime Indemnification
Section IX. Uninsured Motorist Insurance
Section X. Veteran's Benefits
Section XI. Public Benefits

Section I. Provide information and counseling at drop-in advice clinic.
Section II. Provide effective referrals.
Section III. Conduct education and outreach to policy makers.

Section I. How to file a claim for workers' compensation benefits.
Section II. How to file a claim for uninsured employers' benefits.
Section III. How to get medical treatment.
Section IV. How to amend a claim or reopen a case.
Section V. How to obtain a medical legal evaluation if claim is disputed.
Section VI. How to get a rating for permanent disability.
Section VII. How to settle a case.
Section VIII. How to file a declaration for readiness to proceed (to trial) if dispute continues, and participate in a mandatory settlement conference.
Section IX. How to get a workplace accommodation for disability.
Section X. How to file a claim for state disability insurance benefits.

Table of Statutes, Regulations, and Cases
Bibliography
Useful websites
Workers' Compensation Appeals Board offices
Referral list for employment, labor issues
Lists of Division of Workers' Compensation forms and factsheets on their website

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Why is Workers' Comp relevant to Legal Services Programs? 

Nearly one million persons per year are injured on the job in California.  Most will only need medical care and will go back to their jobs after full recovery, avoiding any dispute with the employer.  However, nearly one in five will have to make their way through the knotty workers' compensation system to press the issue of compensation with their employer.

Injured workers, particularly low-wage workers and workers with limited ability to speak English, face enormous obstacles in obtaining basic information about their rights in California's workers' compensation system.  Moreover, many of these workers' employers do not carry workers' compensation insurance, misrepresent the claims process, or terminate the employment of those who seek benefits following an injury.  The issues facing low-wage injured workers are some of the most complicated in the workers' compensation system.

Recent California legislation makes it harder for workers to collect awards and obtain medical treatment.  Due to the complexity of the issues raised by injured workers and the state laws dictating the amount of attorneys' fees that are paid, many attorneys cannot afford to continue to represent injured workers.  Many private attorneys are insufficiently trained in workers compensation. 

In the United States, immigrant workers are the most likely to suffer workplace injuries.  A report by the AFL-CIO showed that Hispanic men have the greatest overall risk of injury and fatality of any gender, race or ethnic group. Immigrant Workers at Risk: the Urgent Need for Improved Workplace Safety and Health Policies and Programs, August 2005, AFL-CIO, p. 3. 

Loss of income and disability due to a workplace injury may be at the heart of the worker's need for your legal assistance.  It may be why she needs to file for bankruptcy.  Why she cannot make housing payments and is being evicted.  Or why she needs to apply for food stamps for herself and her family.

Legal Aid organizations stand on the front lines of advocating for low-income individuals, including low-income and immigrant workers.  You are well-placed to serve and outreach to low-income workers to ensure that they receive their fair compensation for an occupational injury.

How can legal aid organizations assist injured workers with workers' compensation claims?

Because the workers' compensation system is so rule intensive and complicated, we caution against representation by legal aid organizations, unless they have a dedicated attorney on staff who works only on workers' compensation.  Since we understand that the greatest part of legal aid organizations do not have the capacity to do so, we suggest the following model for assisting injured workers and incorporating workers' compensation into your legal services program:

Information and counseling:  Enhance or establish a legal clinic which handles workers' compensation issues, the staff or volunteers of which will be supervised by a volunteer workers' compensation attorney. The goal will be, as much as possible, to provide enough information and assistance that the worker can advocate for her or him self through the various steps of the workers' compensation system.  The more complicated cases should be referred out.

§         Referral:  Establish or enhance a referral program with a pool of private attorneys and organizations who can be counted on as much as possible to accept cases of low-income workers.

§         Education, outreach, and policy change: Provide information to policymakers and the public on issues involving low-income and immigrant workers and their access to compensation for workplace injuries.

How can Worksafe Law Center help you?

Worksafe Law Center is a legal services support center.  We specialize in worker safety and health as well as the related area of workers' compensation.

We know that establishing an advice and self-help clinic, referral system, and policy education program might at first seem a daunting task.  But that is where Worksafe comes in.  As a legal services support center, we are here to assist you in helping low-income workers who have occupational injuries.  Working with California Applicants Attorneys Association, we can help you establish an effective referral pool and identify attorneys who are willing to mentor and supervise at workers' compensation clinics.  We will help facilitate discussions among legal services organizations, workers' compensation attorneys, public agencies, and workers? groups on the critical issues related to the workers' compensation system.  We will provide forms, sample letters, and resources.  And we will be available to help you as needs arise within your organization.

What will you learn from this Manual and supporting materials and our training?

This Manual and its supporting materials will assist you in incorporating workers? compensation into your legal aid practice by helping you to:

§         Have a general understanding of workers? compensation law in California;

§         Identify clients who have a potential workers? compensation claim;

§         Inform your clients of their right to compensation for a workplace injury;

§         Educate your clients on how to navigate the workers? compensation system or other actions they might pursue;

§         Obtain additional resources and referral sources for you and your clients;

§         Connect with a broader workers? compensation community interested in improving the system for your clientele; and,

§         Consider different ways you could incorporate worker injury issues and advocacy into the infrastructure of your legal services organization.

CHAPTER ONE

INTRODUCTION

             I.      What is workers? compensation?

          II.      Brief snapshot of the workers? compensation system.

             I.      What is workers? compensation?

A.     Workers? compensation is a state system of medical care and income benefits for workers in California who are injured on the job.

B.     Workers? compensation is the injured worker?s exclusive remedy against the employer, even if the injury was caused by the employer?s negligence. There is no consideration of ?fault? unless there is gross intentional conduct.

C.     Workers? compensation benefits comprise temporary disability payments, medical treatment, payments for permanent disability, worker retraining, and death benefits.

D.     All California employers are required by law to have workers? compensation insurance or to be legally self-insured.

E.      Employees who work for an employer who is illegally uninsured may seek redress through the Uninsured Employers Benefits Trust Fund or a civil complaint.

F.      The statutory scheme for workers? compensation is set forth in the California Labor Code (LC) and Title 8, California Code of Regulations.  Case law has also been generated and is relied upon.

          II.      Brief snapshot of the workers? compensation system:

A.     To be eligible for workers? compensation, an individual must be:

1.       an ?employee? within the meaning of the Labor Code and workers? compensation;

2.       injured;

3.       on the job.

B.     Benefits of the workers? compensation system:

1.       temporary disability payments;

2.       medical treatment;

3.       permanent disability payments;

4.       worker retraining; and,

5.       death benefits.

C.     Special situations:

1.       Employer is unlawfully uninsured.

2.       Employer acted seriously and willfully.

3.       Employer discriminated against employee due to an occupational injury.

For an overview of the workers? compensation system, see Nolo Press, California Workers? Comp, How to Take Charge When You?re Injured on the Job, 5^th Edition, Christopher A. Ball, pp. 2/1-8.

CHAPTER TWO

AN OVERVIEW OF THE WORKERS? COMPENSATION SYSTEM

             I.      Who are covered employees within the workers? compensation system?

          II.      What does it mean to be ?injured? within the workers? compensation system?

       III.      What does it mean to be injured ?on the job? within the workers? compensation system?

        IV.      If a worker is injured and temporarily unable to work, he receives wage replacement payments called ?temporary disability? while he is recovering.

           V.      Medical Treatments (LC § 4600)

        VI.      Permanent Disability (LC§ 4658)

     VII.      Worker Retraining

  VIII.      Death benefits (LC§ 4701 et seq.)

        IX.      Uninsured employers

           X.      What if the employer deliberately engaged in serious and willful misconduct?

        XI.      What if the employer discriminated against the employee for filing a workers? compensation claim?

             I.      Who are covered employees within the workers? compensation system?

To be eligible for workers? compensation benefits, a worker must be an employee?not an independent contractor.  ?Employee? for purposes of workers? compensation is defined as ?every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed,?.?  LC § 3351.

Anyone rendering service to another, other than as an independent contractor, or unless expressly excluded, is presumed to be an employee.  LC § 3357.

A.     Independent contractors are not ?employees? and are not covered.

1.       Is your client an ?independent contractor??

• If your client has the right to control how she gets a job done, she may be an independent contractor, and excluded from workers? compensation benefits.  Independent contractors generally provide their own equipment and supplies and have a separate business location or work out of their homes.

Note: Many employers or insurers may try to insist that your client is an independent contractor--that does not necessarily mean he is.  The key element in determining independent contractor status is that the individual retains the right to control the ?manner and means of accomplishing the result desired.?  S.G. Borello & Sons v. Dept. of Indus. Relations (1989) 48 Cal.3d 341, 350.

Note: For the fuller statutory description of independent contractor, see LC § 2750.5

2.       Does your client work for an independent contractor?

• If your client works for an independent contractor, she is considered the employee of the contractor and can collect workers? compensation from that contractor.

• In the workers? compensation system, when an independent contractor is operating without a license when a license is required, she and her employees are considered to be ?employees? of the person for whom the services are provided. LC § 2750.5.

Note: For more information on how to determine if a license is required and whether a contractor is licensed, see Section II of the Nuts and Bolts of the Workers? Compensation and other Systems (Nuts and Bolts) herein.

• A general contractor is liable for workers? compensation to the injured employee of an unlicensed subcontractor; however, the unlicensed subcontractor may still be liable to the employee for civil damages for an injury.

B.     Some household domestic workers are covered ?employees;? some are not.

A household domestic worker is a person who works at a residence, and whose duties are ?incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant.?  LC § 3351(d).

The following household domestic workers are covered by workers? compensation:

1.       Individuals who worked more than 52 hours in the 90 days prior to the injury and earned more than $100 in wages during the preceding 90 days.  LC §§ 3351, 3352(h).

2.       And others who:

·         work over 52 hours/week for one homeowner;

·         are part-time gardeners at private residence(s) and work at least 44 hours/month; or,

·         are engaged in casual employment where the work contemplated is to be completed in not less than 10 days and labor costs are at least $100.

LC § 3715(b); Hestehauge v. Charkins, et al., 70 CCC 1294, Cal WCAB, 9/23/05 (SFO No. 0452026), currently on appeal.

For many individuals who work at residences, working a 40-hour work week will not ensure workers? compensation coverage if that employment is with many employers or work with one employer is relatively infrequent.

Although there appears to be some redundancy between those workers described in 1.and in 2. above, there is a major difference between the two: for employers whose workers are described in 1., there are no penalties for being uninsured?there are for the employers listed in 2. and for all other uninsured employers.

Where the residential worker is not covered by workers? compensation, she or he may file a civil action for negligence or breach of contract.  Fault will have to be proven.

C.     Undocumented workers can recover workers? compensation benefits.

Immigrants injured on the job, regardless of immigration status, are covered by workers? compensation if otherwise eligible. LC §§ 1171.5.  A person?s immigration status is generally deemed irrelevant to the issue of liability.  Inquiry into a person?s immigration status during discovery is prohibited.  Id. 

However, an undocumented worker might not be entitled to the whole panoply of benefits offered through the workers? compensation system. For instance,

1. Job reinstatement could not be ordered (LC § 1171.5).
2. An employer may terminate vocational rehabilitation, with a modified or alternative work, if he discovers that the worker?s immigration status prevents him from working in this country. 8 CCR §10131.
3. An immigrant must sign a declaration of immigration status if he applies for benefits with the Uninsured Employers Benefits Trust Fund or the Subsequent Injuries Benefits Trust Fund.  8 CCR § 15740.  Note: Some practitioners say this requirement is not enforced and does not create a problem for their undocumented immigrant clients.

D.     Temporary workers are covered.

Workers sent to jobs by employment agencies have been deemed by California courts to be employees for purposes of workers? compensation.  In Santa Cruz Poultry, Inc. v. Superior Court (1987) 104 Cal.App.3d 575, the worker was determined to be the employee of both the agency and hiring entity.

E.     The post-termination defense can exclude some workers.

Terminated or laid-off employees are excluded from workers? compensation unless the employee can establish:

1. The employer had notice of the injury before the employee had notice of termination or layoff. LC § 3600(a)(10)(A);
2. Medical records of the injury existed before the employee had notice of termination or lay-off.  LC § 3600(a)(10)(B);
3. The injury is specific (i.e., neither cumulative or an occupational disease) and occurred before the effective date of the termination or lay-off but after the date of notice.  LC § 3600(a)(10)(C);
4. The injury is cumulative or an occupational disease that occurred after the date of the notice of termination or lay-off.  The employee must demonstrate that before the notice of termination, he or she did not know (or should not have known) that the condition was caused by work. LC § 3600(a)(10)

Note: In the case of a cumulative injury or an occupational disease, the date of injury is that date when the employee?s injury first affected his ability to work and he either knew or should have known that the disability was caused by work.  LC § 5412.

The exclusion of terminated employees from workers? compensation benefits creates an exception which could be easily exploited by an unscrupulous employer.  If an employee does not immediately inform the employer of the injury (in writing is always best) or seek medical care, he stands a chance of making himself vulnerable to a retaliatory discharge that could go unchecked if the employee cannot establish that the employer knew of the injury. This underscores the importance of the worker immediately making a record of the injury, either through notice to the employer or by seeking medical care.

The exclusion of terminated employees from workers? compensation benefits does not apply in the case of an employee who voluntarily resigns from his job.

If an employee is terminated following his occupational injury, he may have a claim for retaliation under LC § 132a.

F.      Federal, transportation, and defense workers are excluded from the workers? compensation system.

Most federal employees (5 USC §§ 8101-8193) and certain types of workers in the transportation industry, such as seamen, railroad employees (except office workers), longshore workers, and harbor workers (45 USC §§ 51-60), and defense workers (42 USC §§, 1651-1654, 1701-1717) are excluded. They are limited to federal remedies.

G.     Others are excluded.

In addition, the Labor Code excludes a miscellany of other workers such as a sports event officiator who receives only a stipend for his services.  For a more complete list of excluded individuals, see LC §§ 3352-3371.

          II.      What does it mean to be ?injured? within the workers? compensation system?

An ?injury? need not result from a single specific incident, but can also be one that develops over time.

A.     Specific injury: Occurs as a result of ?one incident or exposure which causes disability or need for medical treatment,? for example, falling from a ladder. LC § 3208.1.

B.     Cumulative injury: Occurs as ?repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for treatment.? For example, repeated work at the keyboard causes wrist symptoms; repeated exposure to loud noise causes hearing loss.  Id.

Note:   The date of a cumulative injury is that date when the employee?s injury first affected his ability to work and the employee knew or should have known that the resulting disability was caused by work.  LC § 5412.  For an employee to ?know? that a disability is caused from work, the patient must generally be informed of this by a doctor.

       III.      What does it mean to be injured ?on the job? within the workers? compensation system?

For an injury to have occurred ?on the job,? it must have arisen ?out of and in the course of employment? (AOE/COE).  LC § 3600.  ?Arising out of? conveys that there is a causal relationship between the employment and duties and the injury; whereas, ?arising in the course of? employment signifies that the injury occurred within the time and space limitations of the employment.  See CEB, California Workers? Compensation Practice, 4th Edition, § 2.33.

By law, an injury does not arise out of or in the course of employment under the following circumstances:

A.     When the injury occurs as a result of the injured employee?s intoxication by alcohol or unlawful use of a controlled substance.  LC § 3600(a)(4).

B.     When the injury or death is self-inflicted.  LC § 3600(a)(5),(6).

C.     When the injury is a result of violence where the employee is the instigator of a physically violent altercation.  See LC § 3600(a)(7).

Note: An injury sustained in an altercation that grows out of a dispute over employment may be compensable, whether inflicted by a supervisor, fellow employee, or a subordinate. Conversely, an injury sustained from a dispute based on personal animosity will not be considered to have arisen out of employment. CEB, California Workers? Compensation Practice, 4^th Edition, § 2.28.

D.     When the employee is coming or going to work.  Exceptions: worker is driving during the work day for work purposes, or employer provides transportation or pays for travel expenses.  See, for example, Zenith National Insurance Co. v. WCAB (DeCarmo) (1967) 66 Cal.2d 944, 948.

        IV.      If a worker is injured and temporarily unable to work, he receives wage replacement payments called ?temporary disability? (TD) while he is recovering.

A.     An employee is eligible for temporary partial disability (TPD) if the injury or illness limits the employee to fewer hours of work, or to a lower paying job.

1.       The TPD benefit is 2/3 of ?weekly loss in wages,? assuming that the employee?s part-time work results in less pay than he would have received if he didn?t work and received temporary TOTAL disability benefits.  LC § 4654.

B.     An employee is eligible for temporary total disability (TTD) when she is unable to work at all for a period of time:

1.       Benefit is 2/3 of the average weekly earnings (LC §§ 4653, 4654), subject to statutory minimum and maximum rates (LC § 4453).

2.       For injuries in 2005, the minimum weekly payment is $126 and the maximum weekly payment is $840.

3.       For 2006, the minimum is $126, maximum is $840 or [1.5 x state weekly average salary], whichever is greater.

4.       For 2007, and thereafter, amount of minimum and maximum payments are as in 2006 plus cost of living adjustment (COLA).

C.     When do payments start?  What is the waiting period?

Temporary disability payments are not payable for the first 3 days of injury, unless the temporary disability period is longer than 14 days or the employee is hospitalized (LC§ 4652).

D.     How often are payments made?

Payments should be made every two weeks.  If payments are not made on time, they are automatically increased by 10% (LC§ 4650).

E.      How long can payments last?

With a few exceptions, for injuries that occurred on or after April 19, 2004, temporary disability payments are limited to ?104 compensable weeks within a period of two years from the date of the commencement of the temporary disability payment.?  LC§ 4656c(1)(2).

Some practitioners believe this means that even if your client collects only two weeks of temporary disability payments, she cannot collect anymore for that injury after the two-year window (104 weeks) has passed.  Other say the case law has not been generated on this, so the issue is unclear.

Exceptions: if a client suffers from one of the following conditions or injuries, temporary disability payments may be extended to no more than 240 weeks within a period of five years from the date of the injury (LC § 4656 c (2):

1.       Acute and chronic hepatitis B

2.       Acute and chronic hepatitis C

3.       Amputations

4.       Severe burns

5.       HIV

6.       High-velocity eye injuries

7.       Chemical burn to the eyes

8.       Pulmonary fibrosis

9.       Chronic lung disease

F.      For injuries that occurred before April 19, 2004, temporary partial disability payments cannot extend for more than 240 weeks within a period of five years from the date of the injury. LC § 4646(b).

G.     Taxes?Temporary disability payments, permanent disability payments, proceeds from a compromise and release or a vocational rehabilitation maintenance allowance are not taxable as income.

H.     What happens when the injured worker is ready to go back to work?

1.       For post-April 19, 2004 injuries, employers with more than 50 employees must offer an employee who has become permanent and stationary regular, modified, or alternative work for a period of at least 12 months.  If employment is not offered within 60 days, the employer is liable for permanent disability benefits increased by 15%.  LC § 4658(d)(1).  The flip-side to this is that if the employer makes a suitable offer that is rejected, an employee?s permanent disability benefits will be reduced by 15%.

For more information, see Nolo Press, California Workers? Comp, How to Take Charge When You?re Injured on the Job, 5^th Edition, Christopher A. Ball, pp. 12/1-8.

           V.      Medical treatments (LC § 4600)

In general, an employer is required to provide all medical treatment that is reasonably required to cure or relieve the worker from the effects of the injury.  Within one working day of the employee filing a claim form with the employer, the employer must authorize treatment for the injury. While the claim is pending, treatment must continue until the claim is denied or until medical costs reach $10,000, whichever is the earlier date.  LC § 5402c.

A.     What types of care are covered?

Medical, surgical, chiropractic, acupuncture, hospital, psychological.

B.     What types of treatment are covered?

Nursing, medicines, medical and surgical supplies, crutches, appropriate apparatus such as orthotic, prosthetic devices, services of physical therapist. (LC § 3209.5) Note: cost of travel is also covered.  See Avalon Bay Foods v. WCAB (Moore) (1998) 18 Cal.4^th 1165, 1173.

C.     Medical treatment must be reasonable and appropriate.

The employer is only required to pay for medical treatment that is considered reasonable and appropriate.  The temporary standard for what is seen as reasonable and appropriate is the ?Occupational Medicine Practice Guidelines? published by the American College of Occupational and Environmental Medicine (ACOEM).  Employers must establish a utilization review program to make sure treatment given to injured workers is consistent with these guidelines.  See DWC Fact Sheet: ?Answers to your questions about utilization review? at www.dir.ca.gov/dwc/iwguides.html.

D.     Predesignating a doctor before an occupational injury occurs is an option for some workers.

An injured worker feels more confident of a doctor?s care if he knows her. Within the workers? compensation system, a worker may identify who he wants as his treating physician if he were to be injured.  However, this right to ?predesignate? a doctor is very limited and may not apply to your client.  To predesignate, all of the following must apply:

1. The employer provides non-occupational group health coverage;
2. The designated physician is the employee?s primary care physician who has previously directed his medical care and retains his medical records; and,
3. The physician agrees to be predesignated.

LC§ 4600(d).

If all of the above circumstances apply, a worker may predesignate his physician.  See ?Choosing your Doctor and Getting Medical Treatment? at the end of this chapter.  Post it at your office so that workers know ahead of time of this important right.

For more information on how to get medical treatment for injured workers, see Section III, Nuts and Bolts.

E.      Medical Provider Networks (MPN?s)

As of 1/1/2005, employers may establish a network of physicians (75% of whom primarily treat occupational injuries and 25% of whom primarily treat non-occupational injuries) from which their occupationally injured employees receive medical treatment. (LC§4616.3)  This means that the employer designates a medical group to be the source of medical care for its injured workers.  The process of obtaining medical treatment and changing doctors is different for workers whose employers have medical provider networks.

For more information on obtaining medical treatment when the employer has established a medical provider network, see Section III, Nuts and Bolts in this manual.

        VI.      Permanent Disability (PD) (LC§ 4658)

Definition: The disability that remains after the healing period, and has become ?permanent and stationary? or there has been a ?maximal medical improvement.? An injured worker is entitled to payments for a permanent disability that affects the workers? ability to compete in the open market.

The definition for the older term, ?permanent and stationary,? is very similar to that of the current ?maximal medical improvement:? a condition that is well stabilized and unlikely to change substantially in the next year with or without medical treatment.

For injuries occurring on or after 1/1/05, or injuries still causing temporary disability on 1/1/05, permanent disability is based on the percentage of whole body impairment determined as provided in the 5^th Edition of the American Medical Association Guidelines to the Evaluation of Permanent Impairment (AMA Guidelines) and diminished future earning capacity based on empirical data.  LC § 4660.

A.     Permanent disability payments are due within 14 days of the last temporary disability payment and due every two weeks thereafter.  LC § 4650(c).

B.     Employers with more than 50 employees who offer work to the injured employee will be able to decrease the amount of permanent disability by 15%; if no work is offered, the PD will be increased by 15%.  LC § 4658(d)(1).

C.     Apportionment:  The underlying concept of PD is that an employer should only have to pay for the disability caused by the injury and that any pre-existing disability or restrictions should be ?apportioned out.?  (LC§§ 4663, 4664)

D.     Total permanent disability: Few permanent disabilities are determined to be ?total.? However, the following are presumed to be ?total:? 1) loss of both eyes or loss of sight in both eyes; 2) loss of both hands; 3) injury resulting in a practically total paralysis; 4) injury to the brain resulting in incurable imbecility or insanity.

Benefit amount: Temporary total disability amount for life, plus COLA for injuries on or after 01/01/03.

E.      Partial permanent disability: Anything less than 100% is a permanent partial disability.

Based on the treating physician?s or medical evaluator?s report, a worker?s permanent disability will be given a percentage value or a ?rating? by the Disability Evaluating Unit of the DWC.  This percentage is the basis for determining how long your client may receive permanent disability benefits.  A permanent partial disability benefit is determined in the following way:

1.       Disability rating (represented in a percentage) which is converted into the number of weekly benefits a person is entitled to, is multiplied by;

2.       2/3 of average weekly salary (personal disability indemnity rate) or the maximum weekly benefit amount for that disability rate, whichever is the lower amount.

Maximum Weekly Payments for Injuries Occurring after the Following Dates

Based on Percentage of Disability

Minimum Weekly Payments for Injuries Occurring after the Following Dates

Based on Percentage of Disability

Note: the above charts are from Workers? Rights Clinic, Employment Law Manual 2005-2006, The Legal Aid Society/Employment Law Center, p. 209.

Example:  Joe was injured in 2005.  He was given a permanent disability rating of 30%.  His weekly average salary is $525/week.  Two-thirds of $525/week = $350.  The maximum weekly benefit for injuries occurring in 2005 with a permanent disability rating of 30% equals $220/week.  Therefore his weekly benefit is $220, the lower of $350 and $220.

See LC § 4658 for explanation of formula for converting  disability rating into number of weeks a  worker could receive permanent disability payments; and Nolo Press, California Workers? Comp, How to Take Charge When You?re Injured on the Job, 5^th Edition, 2004,  (Nolo Press), pp. 13/1-11 and Appendix 3 for chart that converts disability rating into weeks of receiving benefits.

See ?How to help your client get a rating for her permanent disability? at Section VI, Nuts and Bolts.    

     VII.      Worker Retraining

A.     Vocational rehabilitation?injury pre 2004

Vocational rehabilitation provides limited help to injured workers whose restrictions prevent them from returning to their usual jobs.  Until January 1, 2009, employees injured prior to January 1, 2004 are entitled to a maximum of $16,000 in vocational rehabilitation benefits, which can include payment for services of a counselor, schooling, and a maintenance allowance.

Vocational Rehabilitation is overseen by the Vocational Rehabilitation Unit, also referred to as the Rehabilitation Unit of the DWC.

An employer may terminate vocational rehabilitation if she discovers the worker?s undocumented status and inability to stay in the country legally.  8 CCR § 10131(d).

B.     Supplemental job displacement benefit?injuries in 2004 and after

For workers who were injured in 2004 or after, there is no longer a ?vocational rehabilitation? program or benefits.  Instead, for workers who are permanently partially disabled, ?supplemental job displacement benefits? are available if the employee does not return to work within 60 days after the termination of temporary disability benefits.  LC §§ 4658.5, 4658.6.

The benefit for this program is in the form of vouchers to be used for tuition, books, career counseling.  The value ranges from $4,000 to $10,000, depending on the level of disability.

It is unclear whether this program would be off-limits for workers due to undocumented immigration status.  But there is currently no express prohibition, as there is for vocational rehabilitation. 

1.       A worker is not eligible for this program if within 30 days of the termination of temporary disability benefits, the employer offers and the employee fails to accept modified work, accommodating the individual?s work restrictions and lasting at least 12 months;

2.       A worker is not eligible for this program if within 30 days of the termination of temporary disability benefits, the employer offers and the employee fails to accept alternative work meeting all of the following conditions:

§         The employee can perform the essential functions of the alternative job;

§         The job will last at least 12 months;

§         The job will pay within 15% of what the employee was earning at the time of the injury;

§         The job is located within a reasonable commuting distance from the employee?s home at the time of the injury.

For more information, see Nolo Press, California Workers? Comp, How to Take Charge When You?re Injured on the Job, 5^th Edition, Christopher A. Ball, pp. 14/1-20.

  VIII.      Death benefits

Where an injury causes death, the employer pays burial expenses up to a maximum of $5,000, and a death benefit to the dependents, including the spouse.  LC § 4701, et seq.   The amount of death benefits depends on the number of dependents and the date of injury.  See LC § 4702.  The death benefit is paid in weekly installments.

For more information, see Nolo Press, California Workers? Comp, How to Take Charge When You?re Injured on the Job, 5^th Edition, Christopher A. Ball, pp. 15/1-6.

        IX.      Uninsured employers

If your client?s employer is illegally uninsured, she has recourse to three different actions: 1) File a civil action against the employer for negligence; 2) Notify the District Attorney; and, 3)

File a claim against the employer and Uninsured Employers? Benefits Trust Fund (UEBTF).

For details on how to pursue a workers? compensation claim when the employer is uninsured, see Section II, Nuts and Bolts.

           X.      What if the employer deliberately engaged in serious and willful misconduct?

A.     Under LC§ 4553, when a worker is injured by the serious and willful misconduct of the employer, the amount of compensation to an injured worker is increased by one-half.

B.     To be ?serious and willful,? the act must be deliberate, performed with knowledge of the probable consequences.  The adjectives commonly used are ?positive, active, wanton, reckless.?

C.     In cases where there is a finding of serious and willful misconduct, there usually has been a violation of a Cal-OSHA safety order.

D.     A separate pleading has to be filed with the WCAB within 1 year of the date of the employee?s injury.

E.      Employer (not insurer) pays the employee directly for its intentional conduct.

        XI.      What if the employer discriminated against the employee for filing a workers? compensation claim?

A.     Under LC§ 132(a) if an employer discriminates against an employee because he engaged in certain protected conduct such as filing a claim, the employer may be liable for a 50% increase of benefits, up to $10,000.  Also, the employee can get reinstated and reimbursed for lost wages.

B.     A separate pleading has to be filed with the WCAB within 1 year o