If you're an injured worker, you might be undergoing a ton of stress due to your physical injury. All of this is completely understandable. Your source of income has gotten cut. Meeting monthly expenses has become difficult. The physical pain might be unbearable. Your Work Comp claims administrator might have treated you with less than respect. Your recommended treatment might never get authorized. Your claim has dragged on forever. You're looking at going to trial over your claim.
And then there are cases where bosses and/or coworkers are such bullies that going to work is what's the issue. The constant teasing, harassment, passive-aggressiveness, or outright disrespect wears down on you, but the job market is so terrible that you can't "just" find a new job. You wake up each workday with a sense of dread. That dread may have started physically manifesting into digestive issues, migraines, or back pain. You've gone as far as to look up your symptoms on WebMD and think you have clinical anxiety or depression from your job. Or perhaps you're proactive and already seeing a psychologist and want to know whether someone else should be footing the bill, like Work Comp insurance.
There must be some kind of remedy for all of this, right? Not terribly much, at least as far as Workers' Compensation is concerned.
It's Very Difficult to Meet the Requirements of an Emotional Stress (Psyche) Claim
Recent legislative changes has reigned in psyche claims. The law still mandates that employers be responsible for an employee's psychological problems, but those problems must satisfy all of the following:
Proving all of the above can be very daunting. For instance, defining what are "actual events of employment" is complicated. The courts deem taunts and interpersonal problems with a supervisor as possibly compensable, but the courts deem a psychiatric injury arising out of the Work Comp litigation process as too tenuous to employment to be compensable. For instance, being upset over a doctor's report or experiencing any other "litigation neurosis" is not compensable.
Further complicating matters is the caveat that if an injured worker experiences aggravated injuries due to certain traumatic events occurring from the Work Comp litigation process, then those injuries are compensable as part of the original industrial claim. For instance, a court allowed compensation for aggravated injuries when an overzealous claims administrator committed acts that constituted a civil tort of "intentional infliction of emotional distress."
The law also affords employers a defense against psyche claims for making non-discriminatory, good faith, personnel decisions. These decisions include transfers, demotions, layoffs, and disciplinary actions.
Proving Your Stress Claim Can Feel Like an Invasion of Privacy
Another issue of possible contention is how doctors determine to what extent an employment event contributed to your stress. With some exceptions, the event must have been at least 51% responsible for the claimed psyche issues, and it's difficult to say how exactly a psyche doctor can scientifically determine what's work-related. In the evaluation process itself, however, a psyche doctor can inquire as to any past or current psyche issues and get treatment records to make that determination. The process can therefore feel very invasive, especially because the psyche doctor will write a report that may reveal reveal past psyche issues that would have otherwise been private information under HIPAA.
Workers' Compensation Provides Limited Benefits for Psychiatric Claims
After some legislation passed in 2013, psychiatric injuries will no longer attribute to any permanent disability rating and payout except in "catastrophic cases." More specifically, this new legislation means that if an injury causes sleep dysfunction, sexual dysfunction, or a psychiatric disorder, any of those issues will not increase an injured worker's impairment rating towards receiving a permanent disability award. While an injured worker can receive medical treatment for these issues, there are a number of reasons why seeking treatment under the Workers' Compensation system may seem less than desirable.
The Exception for Catastrophic Cases
Psyche claims that arise out of what's called a "catastrophic injury." The law defines this as being a victim of a violent act, being directly exposed to a significant violent act, or suffering from a catastrophic injury. The latter includes the loss of a limb, paralysis, severe burn, or severe head injury.
With a catastrophic case, an injured worker may obtain medical treatment and possibly a permanent disability award.
That all being said, we do not at all discourage the filing of psyche claims. There have been instances where we've found very legitimate psyche claims apart from those involving catastrophic cases, and only wish to admonish people that psyche claims can be difficult to prove and possibly more invasive than most people would like. The compensation is also limited. Unlike what people assume comes with "pain and suffering" (money award), filing a psyche claim will typically only garner an injured worker with a claim for medical expenses related to the psyche injury.
Why Most Injured Workers Just Want to Go Back to Work
Most everyone who comes to our office just want to go back to work. If they're receiving benefits, they've long figured out that these benefits represent literally just a fraction of the earnings they received prior to their injury. The Temporary Disability insurance payment is 2/3 of your Average Weekly Wage, but Workers' Compensation caps off the level of compensation for lost earnings. The amount of the cap changes from year-to-year based on inflation and other factors. As of 2017, the maximum amount of Temporary Disability works out to be about $1172/week, or just under $4700/month.
Further limiting the amount of Temporary Disability insurance is the two-year cap on payments, after which the payments stop. Unfortunately, many injuries are not fully healed within that two-year time frame. This is especially the case for injuries requiring major surgery, but workers may see their injuries exacerbate if the insurance carrier or their chosen doctors are not proactive in getting workers in for treatment right away.
For instance, a common workplace injury is "frozen shoulder," which takes about one to three years to develop and heal. Its development occurs in three stages:
If Temporary Disability runs out and an injured worker is still unable to go back to work, they're often relegated to finding an alternative means of financial government assistance, such as Social Security Disability or State Disability Insurance. Like with Workers' Compensation temporary disability, these other benefits are very limited. Moreover, you typically cannot collect more than one source of government assistance at a time (e.g., collecting both Temporary Disability and State Disability Insurance). Doing so can constitute fraud and is a prosecutable offense.
Getting Back to Working at Your Job
At least from a financial perspective, it's in many clients' best interests to go back to work. Most of our clients simply want just that.
While employers are technically not allowed to fire you, cut your pay, or otherwise take retaliatory action for your having filed a Workers' Compensation claim, sometimes it's just not possible for the employer to leave your position open for when you do recover. It always depends on the circumstances, which are largely determined by:
What Happens When You Cannot Return to Your Job
If your injuries prevent you from returning to your employment, you may be entitled to Permanent Disability Payments. Like with Temporary Disability, these payments are very limited and capped off at $290/week.
Getting on Permanent Disability doesn't mean that you have to remain off work for the rest of your life, however. It's also very unlikely that many people would want to, given the limited funds that Permanent Disability provides. Rather, for those who are able, injured workers may opt to instead engage in learning a new skill set by going to vocational school, community college, doing an apprenticeship, or other similar training. This affords them with opportunities to apply for different work that will accommodate their physical limitations.
For injured workers who need to look to undertaking job training for finding a new career, we recommend doing so as soon as possible. Statistics show that the longer you are off work, the less likely you are to ever return.
The Supplemental Job Displacement Voucher
In addition to Permanent Disability payments, the Workers' Compensation insurance can prove you with a Supplemental Job Displacement Voucher to pay for job placement, training, related expenses, and equipment. The equipment may include a computer, which may prove particularly helpful for older generations who have limited computer skills.
For injuries occurring after 2013, this voucher is available if your employer has not made an offer of work within 20 days of collecting your last Temporary Disability payment. If your employer made a valid offer of modified or alternative work and you declined, you will generally not be entitled for the Voucher. We say valid because that modified or alternative work must meet guidelines of being within your work restrictions, lasting at least 12 months, etc. If, for instance, the employer extended the modified work for only 3 months and then terminated your employment, you may still be eligible for the Voucher.
The claims administrator allocates the funds to you and/or your training provider for an amount up to $6,000 (for injuries occurring after 2013). You will need to fill out the necessary forms, provide receipts, and complete other requirements. The claims administrator will reimburse you and/or your training provider within 45 days of receiving your completed paperwork.
The Return to Work Supplement Benefit
In addition to the Voucher, injured workers who are eligible for the Voucher may additionally apply to receive a one-time payment of $5,000. This payment is part of the Return-to-Work Supplement Program, which gets doled out from a $120 million annual fund set aside for helping injured workers whose Permanent Disability payments are disproportionately low compared to their previous earnings.
To qualify, you must be eligible for the above Voucher and file the necessary forms either online or in person at your Workers' Compensation District Office. You must also generally file within one year of having received the Voucher.
A Happy Ending
A lot of the information above sounds like a bunch of doom and gloom, as Workers' Compensation is a system of very limited benefits. In addition to losing money, administrative and procedural delays, doctors who evaluate you without ever meeting you, claims administrators who may not care, and sometimes attorneys can all seem to be working against you. Getting injured is already a very stressful situation, and having a Workers' Compensation claim can heighten that stress depending on the various factors above.
In coming out of the system, however, we've had clients move on from this apparent nightmare by going through vocational training, getting a new career or opening their own lucrative businesses. The latter is the most attractive option for many clients, as it allows them to manage their own work restrictions. In our practice, some examples include a mechanic who used his settlement to open his own mechanic shop, as well as a former laborer who obtained their real estate license. Other alternative job options include computer programming, engineering, health industry jobs (e.g., nutritionist), sales, and even law school. Moving on may require a great deal of motivation, but the point is that it'll be completely up to you to make your own happy ending.
A common question we get asked by injured workers is what kind of medical treatment they can expect under the Workers' Compensation insurance system. In short, often very little.
While there are certainly cases where insurance administrators have accepted claims and authorized decades' worth of medical treatment, including extensive surgeries, recent reforms have enabled insurance companies to drastically limit their obligation for authorizing and paying for treatment. It can get frustrating when your treating doctor prescribes certain medications, physical therapy, a surgical consult, or even surgery, and all you hear back from the claims administrator is that they're going to deny what seems to you like necessary medical treatment.
In this article, we'd like to address why this happens. Workers' Compensation is a system of very limited benefits, and we stress that to every client who walks in our door. We find that if clients have reasonable expectations (i.e. lower expectations) about what benefits they can obtain within the system, the less stress they'll have to endure as their claims are pending. Part of having reasonable expectations is understanding what type of medical treatment to expect to get under this system.
Emergency Medical Care
If you've been injured at work and it requires emergency medical treatment, call 911, ride the ambulance, go to the Emergency Room, and otherwise do whatever it is you need to do to treat that emergency as soon as possible. Workers' Compensation will cover up to $10,000 in medical expenses up until the time the claims administrator decides to accept or deny your claim. The timeframe for accepting or denying your claim is 90 days.
If you do not have private health insurance, the hospital may end up billing you directly for medical treatment. At this point, you can talk to the hospital billing department and let them know you were in the hospital for a Work Comp injury and that the hospital needs to bill the Workers' Compensation insurance carrier instead. We've seen cases, however, where the claims administrator has denied a claim and fails to make that obligatory payment for emergency medical care. You may have some remedies for this situation, but the hospital or medical treatment provider can send you to collections, which will ding your credit score in the mean time.
Authorizing Treatment Under the Medical Utilization Review Process
Even if the claims administrator has accepted your claim, authorizing necessary medical treatment can take years. Your treating doctor must generally be part of the Workers' Compensation system's Medical Provider Network. These doctors are licensed physicians that insurance companies or self-insured businesses (e.g., Walmart) designated to be part of the Network. California maintains regulations as to who can be part of that Network, and each Network must contain doctors with a different variety of specialties.
So, imagine you're already seeing a doctor designated by the insurance company and have no choice to choose to see your regular doctor. Your treating doctor wants to send you to a specialist for a surgical consultation, and would like to also prescribe some physical therapy and pain medication. A different doctor who you will never meet can review that treating doctor's request and deny it.
How does this happen?
In addition to your treating doctor, a doctor who is part of what's called a Utilization Review (UR) process must review every request for authorization of medical treatment. The UR doctor reviews the request without ever meeting you, the patient. In the UR doctor's review, they may decide to accept, deny, delay, or modify the requested treatment. The insurers have direct oversight over the UR program, and it's very possible that UR doctors will feel inclined to deny treatment requests in the face of very clear medical evidence that someone needs to see a specialist, get an MRI, get an x-ray, or any number of treatments.
Independent Medical Review
While the UR process may seem inherently unfair, the state implemented a process where injured workers can appeal the decisions of the UR doctors. This process is called Independent Medical Review (IMR).
Maximus is the sole entity responsible for administering the IMR, and contracts with physicians around the state to review authorization denials. IMR upholds about 80 to 90% of the denials, depending on the treatment being requested. In the meantime, while waiting for your likely denial, your injuries could be getting worse as it goes untreated.
Solutions for Getting Adequate Medical Treatment
We often advise clients to not freak out if their Workers' Compensation claim gets denied. Upon denial, this means you can treat privately outside of the Workers' Compensation system, and many clients find they would prefer to get treatment from their own trusted doctors as their claims are pending. If you do not currently have private insurance, under the current federal health care system, you can qualify and apply for Medi-Cal at any time.
If you're currently stuck in the system, however, another method is to simply dial up your claims administrator when denials happen. If you speak to them respectfully, you'd might get something authorized. Calling is effective - just remember that claims administrators are people, too.
As indicated by the California Applicant Attorneys' Association, undocumented workers make up 10% of California's workforce and annually contribute $130 billion to California’s GDP. Given these statistics, as aptly stated by Republican strategist Mike Madrid:
"[The state] doesn't have the luxury of being ideological.... The undocumented are not going anywhere."
And, given this reality, we can therefore anticipate that undocumented workers, like anyone, will sometimes get injured on the job and require necessary medical treatment. However, on that same token, undocumented workers looking to avoid deportation may be wary of filing a Workers' Compensation claim and/or assume the law would not extend Workers' Compensation insurance benefits to them.
Undocumented Workers are Entitled to Workers' Compensation Benefits
Under California law, all workers, regardless of legal status, are entitled to Workers' Compensation benefits. They are also extended all other job protections under California law, such as overtime and anti-discrimination provisions. This is prescribed by a 2002 state law, as well as as judicial opinions that have since liberally construed that law as protecting undocumented workers' rights under a variety of circumstances.
For instance, in 2015, California's Supreme Court ruled that an undocumented worker using a false Social Security number when applying for jobs could still possibly obtain Workers' Compensation benefits for a back injury sustained at work. The majority opinion stated:
"Although federal immigration law prohibits an unauthorized alien’s use of any false document to get a job, that law does not prohibit an employer from paying, or an employee from receiving, wages earned during employment wrongfully obtained by false documents, so long as the employer remains unaware of the employee’s unauthorized status."
In cases like these, the courts have reiterated that all workers receive benefits regardless of immigration status, as prescribed by law.
Even when undocumented workers have a valid Workers' Compensation or other claim, many still refrain from exercising their rights out of concern that getting themselves "in the system" will alert deportation authorities, aka ICE. While ICE has used legal proceedings to locate undocumented immigrants, the state offers some protections in the Workers' Compensation system that aim to prevent this from happening. Although these protections are not a complete safeguard, undocumented workers should know the following:
Undocumented Workers Enforcing Their Rights Deters Worker Exploitation
As can be inferred from state laws and policies, California is fairly liberal when it comes to undocumented workers' rights. Although filing a Workers' Compensation claim is ultimately a personal decision, many Applicants' attorneys want to help undocumented workers with their claims. Not only are undocumented workers' rights fully protected under the law, but enforcing those rights serves as a way to ensure employers treat their workers humanely.