Fundamentals of Work Comp Law - Part 2
Saturday, February 15, 2003 | 0
The following article is the second in a series for attorneys and other professionals just getting started in workers' compensation. The first article reviewed the history of workers compensation in CA, and provided an overview of the system framework. This article reviews benefits for temporary and permanent disability.
Authors Richard Owen and Harold Greene have graciously permitted the republication of their outline from their annual class on workers' compensation they give to the CA State Bar Section Education Institute. Though not in narrative format, workcompcentral editors felt the material to be of excellent educational quality in present form and are proud to publish it here.
IV. Benefits:
A. Average Weekly Earnings: The Basis for Benefits. See Labor Code sections4451-4459. Please note: Major changes in these sections made effective 1/1/03; Read them! See also Grossmont Hosp. V. WCAB, 59 Cal.App.4th 1348, 62 CCC 1649, 25 CWCR 117 (1997)
B. Temporary Disability [TD] (medically based):
1. Temporary total (Labor Code sections 4453(a), 4653): 2/3 of average weekly earnings subject to certain minimums and maximums; AB749 removed "actual wages" as a basis for minimum earners. For injuries on or after 1/1/2003, all TD has a minimum amount payable.
2. Temporary partial or wage loss basis (Labor Code section 4654): 2/3 of weekly wage loss during period of partial disability:
3. Disability payments: timing and mode (Labor Code section 4650 et seq.)
4. See schedule, below, for a summary of TD benefits:
| Date of Injury | Weekly Earnings | Weekly Benefit | ||
| 1/1/84-12/31/89 | $.01 - $168.00
$168.01-$336.00 x .667 | $.01 - $168.00 $168.01-$336.00 x .667 | ||
| 1/1/91-12/31/90 | $.01 - $98.00 $98.01-$112.00 $112.01-$168.00 $168.01-$399.00 x .667 | $98.00 Actual earnings $112.00 up to $266.00 | ||
| 1/1/91-6/30/94 | $.01 - $126.00 $126.01-$189.00 $189.01-$504.00 x .667 | Actual earnings $126.00 up to $336.00 | ||
| 7/1/94-6/30/95 | $.01 - $126.00 $126.01-$189.00 $189.01-$609.00 x .667 | Actual earnings $126.00 up to $406.00 | ||
| 7/1/95-6/30/96 | $.01 - $126.00 $126.01-$189.00 $189.01-$672.00 x .667 | Actual earnings $126.00 up to $448.00 | ||
| Effective 7/1/96 | $.01 - $126.00 $126.01-$189.00 $189.01-$735.00 x .667 | Actual earnings $126.00 up to $490.00 |
| Effective Date: | 1/1/2003 | 1/1/2004 | 1/1/2005 | 1/1/2006 |
| $602 | $728 | $840 | % increase of State AWW for prior year |
5. Special "in lieu" benefits for certain peace officer/firefighter class employees: Labor Code sections4800 - 4856, inclusive. Like presumptions mentioned earlier (see first article), review these sections whenever you have a peace officer/firefighter class injured worker to see if the injured worker is entitled to special benefits "in lieu" of normal TD; generally these benefits are better for the injured worker than regular TD.
C. Medical care (Labor Code section 4600-4614.1): "Medical, surgical, chiropractic, and hospital treatment . . . which is reasonably required to cure or relieve from the effects of the injury shall be provided by the employer."
1. Employer has affirmative duty to provide medical care.
2. Employer has medical control for first 30 days after the injury is reported unless employee has designated treating physician in writing prior to injury; thereafter the injured worker may be treated by a physician of his own choice within a reasonable geographical area. See McNorton v. WCAB, 62 CCC 760 (1997 unpublished) for a discussion of changing treating physicians and the impact of Rule 9785(b) thereon; and Doolittle v. WCAB, 65 CCC 7 (2000 unpublished).
3. Self-procured medical treatment and recovery of costs thereof:
D. Permanent Disability [PD]:
1. The rating of permanent disability involves an analysis of disabilities described in the medical reports and is adjusted for age and occupation. (Labor Code section 4660); (See Schedule For Rating Permanent Disabilities, State of California, Department of Industrial Relations, Division of Workers' Compensation, April 1997, infra at p. 20.) A working knowledge of the rating process is critical for counsel, on either side of the matter, to properly evaluate the level of the injured worker's disability and thus the value of the case. While the process is relatively simply and straight forward, it can involve complex calculations and appreciation of "unscheduled" factors of disability. It is well beyond the scope of this course to attempt to teach the rating process. If you are new at it, take a beginning rating class; after you've mastered the basic, go on to more advanced problems involving multiple body parts, overlapping disabilities, unscheduled rating factors, and subjective complaints. Please note: the rating schedule was modified effective April 1, 1997. Injuries occurring before that date will continue to use the "old" schedule; injuries occurring after that date will be rated using the new schedule. The rating process is essentially the same, but all of the numbers for parts of body injured and occupation variation have been modified. And the resulting rating are rounded to whole percentages.
2. Permanent Disability Indemnity (Labor Code sections4658-4662):
| Date of Injury | Disability Rating | Minimum/Maximum PD Rate | ||
| 1/1/84-12/31/90 | 1:0 to 99:3* 100:0 | $70.00 TD rate for life | $140.00 TD rate for life | |
| 1/1/91-6/30/94 | 1:0 to 24:3 25:0 to 99:3* 100:0 | $70.00 $70.00 TD rate for life | $140.00 $148.00 TD rate for life | |
| 7/1/94-6/30/96 | 1:0 to 14:3 15:0 to 24:3 25:0 to 69:3 70:0 to 99:3* 100:0 | $70.00 $70.00 $70.00 $70.00 TD rate for life | $140.00 $154.00 $164.00 $198.00 TD rate for life | |
| Effective 7/1/96 | 1:0 to 14:3 15:0 to 24:3 25:0 to 69:3 70:0 to 99:3* | $70.00 $70.00 $70.00 $70.00 TD rate for life | $140.00 $160.00 $170.00 $230.00 TD rate for life | |
| *Disability rates at 70:0 to 99:3 also receive a life pension. |
| Effective Date: | 1/1/2003 | 1/1/2004 | 1/1/2005 | 1/1/2006 |
| 0-69% | $185/week | $200/wk | $220/wk | $230/wk |
| 70% - 99% | $230/week | $250/wk | $270/wk | $270/wk |
| 100% | 2/3 AWE or TTD Rate for life whichever is less, but see L.C. Section 4659(c) |
Additionally, most practitioners utilize a "money chart" which shows the dollar value for each percentage of disability to assist in valuing the case.
3. Apportionment of Permanent Disability:
a) An employer is not liable for any disability pre-existing the industrial injury (Labor Code section 4750):
b) An employer is not liable for any pre-existing disease or condition but only for the aggravation of that disease or condition by the industrial injury. (Labor Code section 4663):
c) Application of "thin skull" Rule:
d) One cannot apportion pathology, only disability:
e) Burden of proof on apportionment issues lies with the employer.
E. Vocational Rehabilitation (Labor Code sections139.5, 4635 et seq.; Rules 10001-10021, 10122-10133):
1. Qualified Injured Worker (QIW): In order to be eligible for vocational rehabilitation benefits, the injured worker must be a QIW (Labor Code section 4635(a)):
a) Medical eligibility: The employee's expected permanent disability precludes, or is likely to preclude, the employee from engaging in his/her usual occupation or the position in which he/she was engaged at the time of injury; and
b) Vocational feasibility: The employee can reasonably be expected to suitable gainful employment through the provision of vocational rehabilitation services.
2. An injured worker must request vocational rehabilitation services. A medically eligible injured worker is entitled to continue to receive regular TD benefits until he/she is medically determined to be permanent and stationary; thereafter, the injured workers is only entitled to vocational maintenance allowance.
3. Vocational Rehabilitation Maintenance Allowance (VRMA): Same as total TD with a maximum of $246/week but can be supplemented by PD advances to equal TD rate. (Labor Code section 139.5) AB 749 made no express increases in VRMA but the supplementation from PD can bring the combined VRMA and supplementation to the new TD rates.
4. Notice of medical eligibility and assignment of a qualified rehabilitation representative (Labor Code section 4637):
5. Development of vocational rehabilitation plan (Labor Code section 4638): A vocational rehabilitation plan is jointly developed by the injured worker and the defendants qualified rehabilitation representative; plans utilizing the employee's transferable skills are preferred to plans that propose training for an occupation in which the employee has no skills or experience. A formal plan is to be submitted to the Rehabilitation Unit within 90 days of determination of the employee's vocational feasibility.
6. Resolution of disputes (Labor Code sections139.5, 4638(b)(2)): Disputes involving vocational rehabilitation issues must first be submitted to the Rehabilitation Unit of the DWC; Decisions and Orders (D&O) of the Rehabilitation Unit are appealable to the WCAB for a trial de novo.
7. Cap on rehabilitation benefits (Labor Code section 139.5): VRMA shall only be paid for a maximum of 52 weeks; total rehabilitation costs shall not exceed $16,000.00 including a maximum of $4,500.00 for counseling fees. (These caps were enacted effective July 16, 1993, but apparently only applied to injuries occurring on or after January 1, 1994; the vocational rehabilitation fee schedule is set out in Rule 10132.1)
8. No settlement of rehabilitation benefits unless there are "good faith issues which, if resolved against the employee, would defeat the employee's right to all compensation . . ." (Labor Code section 4646, codifying Thomas v. Sports Chalet, (1977) 42 CCC 625). The ruling in Estrada v. WCAB, (1997) 58 Cal.App.4th 1458, 62 CCC 1384, to extend this prohibition to include settlement of any retroactive rehabilitation benefits was overruled by amendment to Labor Code section 4646 in 1998. AB749 added Labor Code section 4646(b) which allows outright settlement of rehabilitation rights for $10,000, upon approval of the Rehabilitation Unit. (But read the fine print. This may not be an open door to liquidating Rehabilitation rights of the injured.) See also proposed Rule 10131.2; Form RU-122
The next article in this series will review death benefits, penalties and provide an overview of benefit rates.
Richard D. Owen is Sr. Staff Counsel with State Compensation Insurance Fund supervising a legal unit comprised of 16 litigation attorneys and 14 clerical support, and is responsible for training/educating attorneys for SCIF in Northern and Southern California. He can be reached at rdowen@scif.com.
Harold L. Greene is an Attorney at Law with the offices of Greene and Weinberger in Simi Valley, CA, and has been a certified specialist in workers' compensation law since 1974. He can be reached at haroldlgreene@hotmail.com.
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