OVER 400 Legal Answers to Frequently Asked Questions to a Variety of California Injury Issues and Legal Problems Associated with California Accidents
What is my case worth? What should I do after a bicycle accident? My car's brakes didn't function properly, do I have a case? Should I sign the insurance company's proposal? Some of your questions may have been answered already on Mark Blane's website. However, San Diego county accidents happen all the time, and all sorts of different questions about different injury scenarios can be raised by a person who is injured. As a result, this personal injury website is dedicated to answering your frequently asked questions about a variety of injuries, your legal rights, and what procedures you should follow. Just browse our frequently asked questions (FAQ) section (below) and look them up. If you have other or more specific questions, just send an email (Contact Us) and you will receive a reply without delay!
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DEATH BENEFITS: If someone dies while on-the-job as the result of a work injury, what would be the death benefits under California workers' compensation should the death qualify for such a claim?If a California worker dies as a result of a work injury, his or her dependents are entitled to a death benefit under California’s workers’ compensation laws. Should the family incur any costs for funeral, then coverage for funeral costs is also included within the death benefit. The specific value of the death benefit will depend on the date of the original work injury, the number of any surviving dependents, and the final analysis goes to whether any of the surviving dependents were totally or just partially dependent on the deceased injured California worker. For any work related injuries that cause the death of a California worker occurring on or after January 1, 2006, the maximum allowable death benefit is itemized as follows:
Number of Dependents:
- One total dependent: $250,000
- Two total dependents: $290,000
- Three or more
Total dependents: $320,000
Remember, the death must be related to a work injury, meaning the death occurred within the course and scope of employment.
AGREED MEDICAL EVALUATOR (AME): Okay, so what is an AME on my California or San Diego work comp case anyway?If you are represented by a work comp attorney in California, an AME is the medical doctor your attorney and the work comp insurance company agree on to conduct the medical examination that will lead to a resolution of your work comp claim.
If you do not have a work comp attorney, then you will use a "Qualified Medical Evaluator" also known as a QME, and not an AME.
QUALIFIED MEDICAL EVALUATOR (QME): So what is a QME in regards to my San Diego or California workers' compensation case?The Qualified Medical Evaluator (QME) is an independent medical doctor certified by the DWC Medical Unit to perform medical evaluations on injured workers. If you are without a work comp lawyer, a QME will evaluation your injury and that report will be used to for the resolution of your work comp claim. If you are represented by a work comp attorney, then your attorney would select an Agreed Medical Evaluator (AME), not a QME.
PERMANENT AND STATIONARY (PS): I keep hearing my California work comp doctor and attorney saying things about a "P & S" report , and they tell me it stands for a Permanent and Stationary medical report, and that it is real important to my San Diego work comp case. What are they talking about?
The term Permanent and Stationary (P&S) refers to a time when your medical condition has reached maximum medical improvement. Meaning you are not getting any worse, and you have reached your best pre-job accident medical condition. And, yes, this is a very important time in your California work comp case because once you are "P&S'ed," a medical doctor can then, at that specific time, assess how much, if any, permanent disability resulted from your work related injury. This report is used to finalize your work comp case. It is a very important time in your case once you reach this stage.
P & S reports also dictate how much reward you will receive in your workers compensation case, in addition, if you were injured on the job but by someone not connected with your employer, you can sue that person or entity and utilize your P & S report at trial before the jury. Especially if you have a high % of impairement to a particular body part or system. A good injury lawyer can help you with this. I use P & S reports all the time when I am suing a third party not connected with my client's employer.
Please note: If your disability is rated under the 2005 schedule you will see the term maximal medical improvement (MMI) used in place of P&S.
ACCEPTED CLAIM: What is an accepted claim in relation to a San Diego work comp case?
FYI: An accepted claim is also called an "admitted claim."
An accepted claim means it is a claim in which the California work comp insurance company agrees your injury or illness is covered by workers' compensation benefits under California law (California labor code). Even if your claim is formally accepted there may be delays or other problems associated with your work comp claim. You should consult with an experienced San Diego work comp lawyer.
APPLICANT: What is an applicant in relation to a San Diego work comp case?
An applicant is the party (you, if you are the injured worker) that opens a claim or case with the San Diego Workers' Compensation Appeals Board (WCAB) office by filing an application for "adjudication of claim."
APPEALS BOARD: What is the Workers Compensation Appeals Board (WCAB)?
This is the place where all things related to a work comp injury get consolidated and reviewed. It administers all things related to a work comp case. This place is also the work comp court with the work comp judges that will help decide your specific work comp case. In California, there is a group of seven commissioners appointed by the governor to review and reconsider decisions of workers' compensation administrative law judges. Also called the Reconsideration Unit. See Workers' Compensation Appeals Board.
If you were injured in San Diego county and have an open workers compensation claim, your work comp case or claim will be administered at the following San Diego address:
Workers' Compensation Appeals Board
7575 Metropolitan Road, Suite 202
San Diego, CA 92108-1402
APPLICANT'S ATTORNEY: What is an applicant's attorney in relation to a San Diego work comp case?
A lawyer that can represent you (the injured worker) in your San Diego workers' compensation case; the word applicant refers to you (applying for work comp benefits) as the injured worker.
DISCRIMINATION: What if my employer discriminates against me for filing a San Diego work comp claim? What do I need to know and what can I do?
Your employer obviously is not suppose to discriminate against you for filing a bonafide work injury claim. If he or she does, you are protected under California law.
First, find yourself a good San Diego work comp attorney to get a consult. Second, your lawyer can file what is a called a "Section 132(a) action." Which is basically a motion governed by a California workers' compensation law that prohibits discrimination against you because you filed a workers' compensation claim, and against co-workers who might testify in your case.
DWC1 WORK COMP CLAIM FORM: What is the DWC1 Claim Form and why is it important in my San Diego workers' compensation claim?This is the claim form you need to fill out, sign and date, when you report your work injury or work related illness to your employer or supervisor. Remember, California law mandates your employer give you this form (the DWC1) within 24 hours of reporting a work related injury or illness.
The DWC1 form comes from the Division of Workers' Compensation, Department of Industrial Relations, with the state of California. It is a very important form as it starts your work comp injury case with your local work comp appeals board.
COMPROMISE AND RELEASE (CR): What is a Compromise and Release in regards to my San Diego workers' compensation case?
This is a type of settlement in which you (the injured worker) receive a lump sum payment and become responsible for paying for your future medical care. A settlement like this must be approved by a workers' compensation judge, and it is a common type of settlement for a work comp case. The other kind of settlement is known as a Stipulations with Request for Award (Stips).
STIP FOR AWARD: My uncle Bob told me his San Diego work comp attorney mentioned something about wanting to "stip his work comp case," what is he talking about?
This is simply a type of work comp settlement in which the parties agree on the terms of an award (settlement), and it may include future medical treatment. Payment takes place over time, and this agreement is put into writing, and this written document is provided to the judge for final review. Another type of work comp settlement is called a Compromise and Release (C&R).
WORK COMP BENEFITS: Okay, if I have a valid San Diego work comp injury case, what benefits are available?
California (San Diego) workers' compensation insurance provides six basic benefits (you should review these benefits with a qualified San Diego work comp lawyer):
- 1. Medical care: Paid for by your employer to help you recover from an injury or illness caused by a work related injury or illness;
- 2. Temporary disability benefits: Payments if you lose wages because your injury prevents you from doing your usual job while recovering from your work injury;
- 3. Permanent disability benefits: Payments if you don't recover completely from your injury;
- 4. Supplemental job displacement benefits (if your date of injury is in 2004 or later): Vouchers to help pay for retraining or skill enhancement if you don't recover completely and don't return to work for your employer;
- 5. Vocational rehabilitation (if your date of injury is before 2004): Job placement counseling and possibly retraining if you are unable to return to your old job and your employer doesn't offer other work;
- 6. Death benefits: Payments to your spouse, children or other dependents if you die from a job injury or illness.
FILING A WORK COMP CLAIM: Okay, how do I go about filing a San Diego workers' compensation claim if I believe I have been injured on the job?
As soon as you, the worker, knows or even suspects that you have a work or job related injury or medical illness, you should immediately report it to your employer. Under the California labor code, within one day (24 hours) after the injury is reported by you (the injured worker), the employer must give you a workers compensation claim form.
This is only the first step in "filing a work comp claim" in San Diego, California. Waiting to report an injury or illness can cause a delay or denial of workers' compensation benefits, so you should not wait. The sooner you report it, the better. Evidence is better preserved, and any witness testimony is sill fresh.
WORK COMP DEFINED: What is California Workers' Compensation?
California workers' compensation laws provide money and medical benefits to an employee who has an injury as a result of an accident, injury or occupational disease on-the-job. On-the job means within the course and scope of employment. This means the injury happened when the employee was doing something (work) that benefited the employer.
California workers' compensation is designed to protect workers and their dependents against the hardships from injury or death arising out of the work environment, and in performing job duties. It is intended to benefit the employee and employer alike or equally. The employee receives money (usually on a weekly or biweekly basis) and medical benefits in exchange for forfeiting the common law right to sue the employer. The employer benefits by receiving immunity from court actions against them by the employee in exchange for accepting liability that is limited and determined. The question of negligence or fault is usually not at issue.
PAIN AND SUFFERING: Do you get pain and suffering damages in a San Diego Work Comp Claim?
No, you do not get pain and suffering damages in a California Work Comp Case. This is one of the major differences between a work comp claim and civil personal injury case. There is one slight exception: if you were injured at work by a third party not connected to your employer, then you have the right to pursue pain and suffering damages against the third party who caused your injury at the same time you get to pursue your work comp claim.
WORK COMP INSURANCE: If I am an employer in the state of California, do I need to have Workers' Compensation Insurance for my employees? Even if I am a roofer, or real estate broker with independent contractor agents?
Yes, you are required to have it. Under California law, employers are required to have workers’ compensation insurance if they have even one employee. If you are a roofer and don’t have any employees, you are still required to carry the insurance. If you are a real estate broker and you have agents, you are still required to carry it even if they are independent contractors.
OUT-OF-STATE EMPLOYER: If I am an out-of-state of California employer, do I need to carry California Workers' Compensation insurance for my employees?
Depends. Out-of-state employers may need workers’ compensation coverage if an employee is regularly employed in California or a contract of employment is entered into here.
SOLE BUSINESS OWNER: Is California Workers' Compensation Insurance required if I am a sole owner of a business with my wife, and we have no employees?
Depends. Generally, coverage for sole owners of a California business is optional. You would, however, need to have workers’ compensation coverage for any employee you may hire, even if it’s just one employee, and even if it’s just temporary employment. You should consult with your California work comp attorney, insurance agent or broker, or carrier regarding the specifics of your situation and your options. Also, each situation is unique and you should go over all options available to your specific situation.
ATTORNEY FEES: How is a San Diego Workers Compensation Attorney Paid?
The lawyer fees are set by statute as contingency on the outcome of the injured workers' case. This means the attorney does not get paid until there is a offer of settlement on the case. The lawyer fee generally ranges from 9% to 15%, but an attorney can petition for higher fee, such as 20%, depending on the complexity and difficulty of the case. Each case is different as each person has different job duties and injuries on the job.
Remember, everything in a workers compensation case has to be approved by the San Diego Workers Compensation Appeals Board, including attorneys fees; and the attorney is paid via a separate check from the work comp insurance company.