As soon as an employee realizes he/she has been injured on the job, the law requires the injured worker to report the injury to his/her supervisor. There are a number of exceptions to the reporting rule which I will enumerate in a separate article. The best practice is to report all injuries at the earliest possible opportunity.
Once the injury has been reported the employer is required under the California Labor Code to provide the employee a claim form (WC-1). The employer is also required to assist the employee in the completion of the form and a supervisory employee of the employer must sign the claim form. Claim forms prepared by employers are often incomplete and inadequate, so that after I have been retained, I will assist the injured worker in preparing an amended claim form, which usually includes additional injuries missed by the worker and his/her supervisor.
The process begins with the “filing” (preparation and signing) of a claim form, which the employer must then submit to his/her compensation insurance carrier. The second step is referral for medical care.
Employers tend to send injured workers to special medical clinics known as industrial clinics. These type clinics are not typical medical offices; they exist for the benefit of employers and the insurance industry.
It is critical to understand after you have been hurt at work that the industrial clinic doctor is not your doctor. This doctor is paid to protect the interests of the employer and the carrier; not to protect the interests of the injured worker. These industrial clinics rarely order necessary imaging such as MRI scans, and often discharge the patient as Permanent and Stationary (P&S) when significant treatment needs have not yet been addressed, e.g. need for therapy, injections or surgery. After I have been retained I will refer you to a doctor who is not only qualifed in the area of medicine most relevant to your injury but also is sensitive to your needs as an injured worker and not beholden to the employer or the insurance industry.
The third step is the filing with the WCAB of an Application for Adjudication. This is the beginning of the legal process which should ultimately result in resolution of your claim. The employer will not generally do this for you. It involves a statute of limitations of one year to which there are numerous exceptions. This is the part of the process that should be done by an attorney.
So, what will you be required to do once you have retained an attorney? You are primarily responsible for keeping your appointments with various doctors. Medical treatment and evaluation is the most important and time-consuming aspect of the compensation process. I cannot settle your claim until all medical treatment and evaluation has been concluded. You will likely have your deposition taken by a defense attorney. I or an attorney in my office will prepare you for the deposition and defend you during the deposition. You may also be required to attend an evaluation by a neutral doctor following the conclusion of our doctor’s treatment of you. This would occur once you have been determined Permanent and Stationary (P&S). These doctors are known as Agreed Medical Examiners (AME) and Qualified Medical Examiners (QME).
How much will all this cost you? The answer is you pay nothing out of pocket to any doctor or attorney. Doctors and all costs of litigation are paid by the employer’s insurance company. Attorneys are paid on a
contingent fee basis. The maximum fee in almost all cases is 15%. This represents 15% of your final settlement. The final settlement generally is a lump sum of only permanent disability monies. If temporary
disability is not paid until the conclusion of the case, and is part of the final lump sum settlement then it is also subject to the contingent fee. If Temporary disability is paid on a monthly or bi-weekly basis, the
contingent fee does not apply to temporary disability payments received. If the attorney needs to petition the Court for payment of temporary disability which the carrier wrongfully refuses to pay, the contingent
fee will be awarded by a judge on the lump sum of past due benefits up to and including the date of hearing. In the event that my office advances costs of litigation such as deposition costs, I will bill the
insurance company for reimbursement. There is never a cost to the client beyond the 15% contingent fee explained above.
I will have more to say about payment of temporary disability benefits in a subsequent article.
* * *
Atty. George Henderson is the current president of the Harbor Area Applicant’s Attorneys Association (HAAA), and a member of the State Governing Board of the California Applicants Attorneys Association (CAAA). The Law Offices of George Henderson is located at 4401 Atlantic Avenue, # 410, Long Beach, CA 90807. Telephone: (562)422-9797; Facsimile:(562) 422-7787
(www.asianjournal.com) (LAWeekend Nov.05 2011 Sec C pg.05)
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