Workers Comp in California

Workers comp laws can vary considerably from state to state, and California’s are among the most comprehensive and far-reaching in the nation. For instance, there is no minimum employment threshold for California businesses to be required to provide workers comp coverage; it is mandated at any workplace with one or more employees.

Only sole proprietors with no employees can escape the workers comp requirement.

Thus, nearly every employee of a company large and small is covered by workers comp insurance in California, and with 700,000 workplace injuries reported in 2019, a lot of people needed it.

Workers comp pays employees and their families for maladies ranging from a cut finger or sprained ankle to occupational diseases such as hearing loss and tuberculosis or even workplace fatalities. Covered injuries can also include isolated events such as an auto accident while on the job or being burned by a spilled chemical. A less used (and far-less publicized) aspect of coverage is repeated incidents over a period of time, such as being subjected to loud noise that affects hearing or carpal tunnel syndrome from keyboarding.

Employers can purchase workers comp coverage for their workers from insurance carriers, much the way individuals purchase auto or homeowner’s insurance, or self-insure (as of Jan. 1, 2018, a total of 7,141 California employers were actively self-insured). When a worker is injured on the job, workers comp benefits typically cover payments for the person’s medical bills and a portion of lost wages until he or she is able to return to work. It may also offer disability or death benefits.

“The whole point of the system is to get people treatment, get them well, and get them back to work,” said Robert McLaughlin, an attorney in San Diego who has been practicing for 30 years and has tried hundreds of workers comp cases.

The workers comp system provides important protections not only to workers but also employers. As a no-fault system for compensating workplace injuries, workers comp laws, with rare exceptions, preclude workers from suing their employers for injuries suffered on the job.

California’s system also has a lesser burden for workers to prove an injury is work-related, and covers a wider range of injuries, including psychological ones, than many other states, according to McLaughlin.

That doesn’t mean the system is without its flaws.

“I believe there have been a lot of regulatory changes over the years that were, in my opinion, more favorable to insurance agencies than injured workers,” McLaughlin said.

San Francisco attorney Bernhard Baltaxe, who has been litigating workers comp cases for nearly 20 years, agrees, saying California does poorly when it comes to getting injured employees back to work quickly, largely because of difficulties in getting to see a doctor and getting treatment, and pays lower benefits than many states.

“The system that California uses to control access to treating physicians and to obtain treatment is slower than in other states,” he said.

How to File a Workers Comp Claim in California

Any worker injured on the job in California should notify a supervisor as soon as possible to ensure no delay in receiving benefits, including medical treatment. If the injury or illness developed gradually, it should be reported as soon as you learn or believe it was caused by your job.

To start the workers comp claims process and protect your rights, file a claim form as soon as possible. Your employer must give or mail you a claim form within one working day after learning of your injury or illness. The California claim form can also be downloaded here. Workers can contact the Department of Industrial Relations’ Information and Assistance Unit or by calling 1-800-736-7401.

Once you have the claim form, fill out the “employee” section, sign and date it, and send it to your employer right away, keeping a copy for your records. The claim form should be returned to the employer in person or by mail. If you mail the claim form, use certified mail (“return receipt requested”) so have a record of the date it was mailed and received. Failure to return the completed form to your employer puts you at risk of losing your right to benefits.

Employers are responsible for completing the “employer” section and forwarding the completed claim form to the insurance company. You should receive a copy of the completed claim form from your employer; if you don’t, request a copy and keep it for your records.

Deadlines for California Workers Comp Claims

The workers comp process includes multiple deadlines for employees, employers and insurers, and following them is essential to making sure your claim is processed efficiently and you receive the benefits to which you are entitled.

For injured workers, the most important deadline is reporting your injury or illness within 30 days of when you believe it incurred on the job. Failure to do so could result in losing your right to collect workers comp benefits.

For most workplace maladies, determining when the injury occurred is simple enough: it’s the date that you sprained your ankle, wrenched your back or suffered whiplash in a car crash. But for repetitive-stress injuries or occupational diseases that occur gradually, making that determination is more complicated.

For those cases, the timeline for reporting and filing your workers comp claim starts when the following happen:

• You first missed work or saw a doctor for the injury or illness, and
• You knew or should’ve known that it was caused by your work, generally because the doctor explained that to you.

Once your injury is reported and your completed claim form submitted to the insurance company, your employer must authorize medical treatment for you within one day, to a maximum of $10,000, while your claim is investigated. If that authorization is not provided, you should immediately contact California’s Information and Assistance Unit for help.

Once the claims form is submitted, the insurance company generally has 14 days in which to mail you a letter with the status of your claim. If you don’t receive a letter within 14 days, contact the insurance company to inquire about the status.

If your employer does not deny your claim within 90 days, you can presume in most cases that your injury is covered under workers comp. If the injury or illness forces you to miss work, you should begin receiving temporary disability benefits within 14 days after the insurer learns about the injury and your temporary disability. If the insurer doesn’t start the payments by then or respond to the claim by denying it or asking for more information, it will be required to pay a 10% late penalty on the disability payments.

How to Appeal a Claim Denial

If your workers comp claim is denied, you can file an appeal with the state Division of Workers Compensation Appeals Board by filling out a DWC-1 form. After completing the form, you must file it at the DWC office in the county where you live or in the county where you were injured. You must serve the application on all other parties, which is generally the claims administrator.

The DWC office where you filed the application will send you a notice confirming that it has been filed. The notice will include your assigned case number, which will begin with the letters “ADJ” followed by a sequence of numbers. Keep the notice and use the assigned case number on all documents and correspondence relating to your case.

Next, you must file a Declaration of Readiness to Proceed to request a hearing before a workers compensation administrative law judge. Your case will be scheduled for a hearing called a mandatory settlement conference (MSC).

At the hearing, you may represent yourself or hire a workers comp attorney; in most cases, workers will want an experienced attorney in their corner when fighting a denial. “Given the complexity of how the law has changed in the last 30 years, they almost have to go out and get a lawyer now to assist them in getting over that denial,” McLaughlin said.

The judge will discuss the case with you and your claims administrator and try to assist the both of you in negotiating a settlement. If your case is not settled at the MSC, you will need to prepare documents that outline the dispute, identify the items each party will present at trial and the names of the witnesses that each party will ask to testify. The judge will then schedule a date for trial.

The trial will be held before another judge, and you will be required to attend. The judge will issue a written decision after the trial and send it to you by mail, which usually occurs between 30 and 90 days after the trial. If either you or the claims adjustor disagrees with the judge’s decision, a Petition for Reconsideration can be filed.

If there is a disagreement between you and your claims administrator over the diagnosis of your injury by your treating physician or treatment plan, you most likely will need to request a qualified medical examiner (QME) to review your case and issue a medical-legal opinion. These are doctors that meet additional educational and licensing requirements. A randomly generated list of three QME physicians, known as a panel QME, is issued, one of whom will be selected to review the worker’s case. The injured worker has 10 days from the date the panel is issued to select which doctor he or she wants to examine the case; otherwise, the claims administrator will make the selection. Whoever fills out the form to request the panel QME chooses the specialty of the doctors on the panel.

In cases where an injured worker is represented by an attorney, the attorney may try to convince the claims administrator to agree to a doctor to review the case, known as an agreed medical examiner (AME). Prior to a legislative change in 2004, Baltaxe said, each side would select their own physician if they could not agree on an AME; now, however, they are required to use a doctor from the QME panel if they can’t reach agreement – which Baltaxe said is almost always the case.

“The panel QME process is very detrimental because it slows things down terribly,” he said, adding that the process leaves workers “to hope that this random, esoteric process will work to your benefit.”

Eligibility for Workers Comp in California

All employers are required by law to provide workers comp insurance in California to their employees. Your employer is required to post information about its workers compensation insurance policy in the area where it posts other workplace information, such as the minimum wage law. The workers compensation poster should include the name, address and phone number of the person or company handling claims for your employer and the policy expiration date.

If you are not sure whether your employer had insurance on the date that you were injured, call the Workers Compensation Insurance Rating Bureau (WCIRB) at 1-888-229-2472 or go to its website at www.caworkcompcoverage.com.

If your employer is self-insured, you can contact the Department of Industrial Relations Office of Self Insurance Plans at (916) 574-0300 or go to its website at www.dir.ca.gov/osip.

What to Do If Your Employer Does Not Have Workers Comp Insurance

It is illegal for an employer to run a business in California without carrying workers compensation insurance. Those that fail to do so are subject to steep fines, having their business shut down, criminal charges, and even jail time for the employer.

If you believe your employer is not insured, contact your local Department of Industrial Relations Division of Labor Standards Enforcement (DLSE) office and make a complaint. Go to www.dir.ca.gov/dlse to find a local office.

Filing a Claim with the Uninsured Employers Benefits Trust Fund

The Uninsured Employers Benefits Trust Fund (UEBTF) is a special fund set up to pay the claims of workers who get insured or sick while working for an uninsured employer. The fund pays injured workers and tries to recover from the uninsured employer all benefits that are paid.

If you wish to apply for benefits through the UEBTF, review this handy fact sheet from the Division of Workers Compensation. You will need to obtain a packet of information and forms and follow the 11 steps in order that are explained in detail in this guide.

It’s important to remember that UEBTF benefits are not paid automatically. Be sure to make copies of all the forms that you submit during the process and keep good notes of anyone you talk with about your claim.

Benefits: What Does Workers Comp Cover in California?

Workers compensation generally pays for medical costs and a portion of lost wages through temporary disability benefits. For more serious injuries or illness that leave you unable to return to work, you may be entitled to permanent disability benefits and a supplemental-job-displacement benefit to help pay for retraining or learning new job skills.

In cases where the employee dies as a result of the injury or illness, workers comp includes death benefits to the worker’s spouse, children or other dependents.

Medical Benefits

Workers comp medical benefits in California pay for medical care to treat a work-related injury or illness. A worker covered by workers comp should never receive a medical bill as long as he or she filed a claim form and the treating physician knows that the injury is work-related.  It is illegal for a physician or medical facility to bill a worker if they know the injury is or may be work-related (California Labor Code Section 3751(b)).

If the injury is an emergency, your employer must make sure that you have access to emergency treatment right away. For non-emergency care, the claims administrator is required to authorize treatment within one working day after you file a claim form. While investigating your claim, the claims administrator must authorize necessary treatment up to $10,000.

The question of who treats the injury or illness depends on several factors. Many employers or their insurers have a designated medical provider network (MPN) or a contract with a healthcare organization (HCO) to treat injured workers. An employer or insurer that has a contract with an HCO must give employees a form prepared by the Division of Workers Compensation (DWC Form 1194) to allow them to choose whether to enroll in the HCO. This form must be given to new employees within 30 days after the date of hire and to current employees at least once a year.

Attorneys McLaughlin and Baltaxe both said a growing problem in California’s workers comp system over the years has been a lack of available doctors to treat injured workers.

“The employers control the doctors through medical provider networks and, in many specialties like pain management, they will only have three available in a certain designated area,” Baltaxe said.

McLaughlin said many doctors are not interested in navigating the state’s onerous workers comp system given the meager reimbursement rates.

“A lot of good doctors are getting out of workers comp,” McLaughlin said. “It’s so formulistic, so time consuming. Young doctors are not getting into it, and good doctors are leaving.”

Disputes over the nature of the injury and proper medical care are what most often leads to litigation, McLaughlin said.

“Eighty percent of the business that comes into our door comes because they are not getting the (medical) treatment they need,” McLaughlin said. “It’s (medical) treatment that brings people in the door, not a request for some big financial award.”

Workers who have health care insurance for medical conditions unrelated to work have the right to “predesignate” their personal physician or a medical group before injury. To do so, you must notify your employer in writing. You may prepare your own written statement, use optional DWC Form 9783 provided by the Division of Workers Compensation, or use a form provided by your employer. To download DWC Form 9783, go to www.dir.ca.gov/dwc/forms.html.

You can predesignate only if, on your date of injury, you have health care coverage for medical conditions that are unrelated to work.

“It’s not easy,” Baltaxe said. “In order to predesignate, you have to have your doctor sign a designation. Many doctors won’t do it because it’s onerous. I know many people who have signed designations didn’t do it properly.”

Another problem with pre-designating, Baltaxe said, is that the designated doctor may not be a specialist in the area in which the injury occurred.

“Most people who have a knee injury don’t want to be treated by a family doctor; they want to be treated by an orthopedic physician who treats knees,” he said.

If your employer or the insurer does not have an MPN and does not have a contract with an HCO, in most cases the claims administrator can choose the doctor who first treats you after you are injured, unless you predesignated.

An injured worker has the right to choose the primary treating physician even if he or she did not predesignate under the following circumstances:

• If your employer did not post required information about your workers compensation rights and has not offered treatment after learning about your injury.
• If your employer or the insurer sends you to treatment that is completely inadequate or refuses to provide necessary care.

While workers comp generally pays all medical bills stemming from the work-related injury, there are limits. Injured workers are limited to a total of 24 chiropractic visits, 24 physical therapy visits and 24 occupational therapy visits, unless the claims administrator authorizes additional visits or you have recently had surgery and need postsurgical physical medicine.

Some treatments are limited by law, and medical treatments must be evidence-based to qualify for benefits.

The medical treatment utilization schedule (MTUS) published by the Division of Workers Compensation details treatments scientifically proven to cure or relieve work-related injuries and illnesses. It also deals with how often the treatment is given and for how long, among other things.

If the treatment your doctor wants to provide goes beyond what is recommended by the MTUS, your doctor must use other evidence to show the treatment is necessary and will be effective. Additionally, your doctor’s treatment plan may be reviewed by a third party hired by the claims administrator to determine whether the proposed treatment is medically necessary.

If a treatment plan is denied by the claims administrator through the process known as utilization review, the worker has 30 days to request an independent medical review. During independent medical review, a physician decides on whether the treatment meets California’s adopted guidelines solely on review of the medical records provided; the doctor never meets with the injured worker.

“It’s quite frankly a crappy process,” McLaughlin said. “When it goes to independent medical review, it is an anonymous, nameless and faceless doctor. We never get to find out who this doctor is.”

McLaughlin said the vast majority of treatment denials are upheld during the independent medical review process

“From the injured worker’s perspective, it’s a shining example of how the system is not working,” he said.

If an injured worker is ultimately unable to obtain the requested treatment through the utilization or independent medical review processes, the person may still be able to obtain it through their own health insurance, Baltaxe said. “You have to show to your insurance carrier that you’ve exhausted all your rights through workers comp,” he said.

If you return to work with limitations, it’s important to attend all follow-up doctors’ appointments to continue receiving benefits. Workers comp pays for time off for doctors’ appointments that are required by your employer or its insurance carrier.

Temporary Disability Benefits

California’s temporary disability payments generally pay two-thirds of the gross (pre-tax) wages you lose while you are recovering from a work-related injury or illness, up to the maximum amount set by law ($1,299.43 per week as of Jan. 1, 2020). The minimum weekly amount for temporary disability payments is $194.91 (the amounts are adjusted every year based upon changes in the State Average Weekly Wage formula).

Temporary disability payments begin when your doctor says you can’t do your usual work for more than three days or you are hospitalized overnight. Payments must be made every two weeks. Generally, TD stops when you return to work, or when the doctor releases you for work, or says your injury has improved as much as it’s going to.

Temporary disability payments may consist of either total disability payments (if you cannot work at all while recovering) or partial disability payments (if you are able to do some work but are earning less than you were prior to the injury/illness).

Those injured on or after Jan. 1, 2008 are eligible to receive 104 weeks of disability payments within a five-year period, starting from the date of the injury. Payments for a few long-term injuries, such as severe burns or chronic lung disease, can continue for up to 240 weeks of payment within a five-year period. In addition, disabled workers can file a state disability insurance (SDI) claim with the Employment Development Department.

You should file this claim even if your workers comp case is accepted. This will allow you to get SDI payments after the 104 weeks of TD payments if you are still too sick or hurt to go back to work. To learn more about these benefits, call 1- 800-480-3287 or visit the EDD website at www.edd.ca.gov/disability.

To ensure that your TD payments are calculated correctly, be sure to report to your claims administrator all forms of income you receive from work impacted by your workers comp claim, including wages, goods and services, lodging, tips, commissions, overtime and bonuses, as well as earnings from work you did at other jobs at the time you were injured or fell ill.

Temporary disability payments are not subject to federal, state or local income taxes, Social Security taxes, union dues or retirement fund contributions.

If you disagree with your treating doctor’s opinion about your ability to return to work, you can ask to be evaluated by a qualified medical evaluator (QME), a physician who has met additional educational and licensing requirements

Permanent Disability Benefits

Permanent disability benefits in California kick in when your treating doctor concludes that you will never recover completely from your work-related injury or illness and will always be limited in the work that you can do.

Workers with medical conditions that are neither improving nor getting worse have reached “maximal medical improvement” (MMI). Based on the American Medical Association Guides to the Evaluation of Permanent Impairment (Fifth Edition), the treating physician writes a report stipulating how much you can move the injured parts of your body, how much pain you have and limits on the work you can do (“work restrictions”), as well as whether you are able to return to your old job.

This “P&S Report” (for “permanent and stationary”) results in a “rating” that estimates how much your disability limits the kinds of work you can do or your ability to earn a living. This in turn helps determine the amount of your disability benefits, along with other factors such as your date of injury, age at the time of injury and occupation.

Those with partial disability are eligible to receive the total amount of their disability benefits spread over a fixed number of weeks. Those with a permanent total disability are eligible to receive PD payments for the rest of their life.

The weekly rates for permanent (partial) disability payments range from $160 to $290. In the rare cases of permanent total disability, payments can range up to two-thirds of the gross (pre-tax) wages, with maximum and minimum amounts based on the Statewide Average Weekly Wage.

Supplemental Job Displacement Benefits

California workers who were injured in 2004 or later and are classified with a permanent partial disability may be eligible to receive a supplemental-job-displacement benefit. The benefit type and procedures for obtaining it vary depending on the date of injury and whether the worker’s employer offers suitable work.

The benefit comes in the form of a voucher that promises to help pay for educational retraining, skill enhancement or both at eligible schools. The voucher can be spent on tuition, fees, books, tools or other expenses required by the school for retraining or skill enhancement, and for licensing or professional certification fees, related examination fees, and examination preparation course fees.

Workers with permanent partial disability are eligible for the voucher if their employer does not offer regular, modified or alternative work within 60 days after the claims administrator receives the “Physician’s Return-to-Work & Voucher Report.”

For injuries suffered after Dec.  21, 2012, the voucher is redeemable for up to $6,000, regardless of the worker’s permanent disability rating. Some of the ways in which the voucher funds can be spent include:

• Up to $600 of the voucher money may be used to pay for services from a licensed placement agency, a vocational or return-to-work counselor and resume preparation.
• Up to $1,000 to purchase computer equipment
• Up to $500 for miscellaneous expenses without receipts or other documentation.

The voucher expires two years after the date it’s furnished, or five years after the date of injury, whichever is later. All expenses must be incurred and submitted with required receipts and other documentation before the expiration date.

Death Benefits

If a worker in California dies from a work-related injury or illness, death benefits are paid to the person’s spouse, children or other dependents. The amount of the benefit depends on the number of total and/or partial dependents.

For injuries on or after Jan. 1, 2013, death benefits range from $250,000 for one total dependent to $320,000 for three or more total dependents. For deceased workers with one or more partial dependents, payments are eight times annual support not to exceed $250,000.

Death benefits are paid at the total temporary disability rate but not less than $224 per week. The process to collect death benefits must start within 240 weeks of the worker’s date of injury that led to the death.

For injuries on or after Jan. 1, 2013, death benefits include burial expenses up to $10,000.

Returning to Work in California

In a workers comp claim, many individuals are involved in deciding if and when it is safe to return to work, including the primary treating physician; employer; claims administrator; and attorney, if the worker has one.

This is where the slow nature of the system, particularly where disputes arise, work to the disadvantage of all, attorneys say.

McLaughlin said the longer it takes to get an injured worker treated and back to work, the less likely the person will ever return to the job. “After a year, you’re going to have a very hard time getting this person back to work,” he said. “All these delays just create an increased burden on society.”

When a doctor says it’s OK to return to work, he or she should describe clear and specific limits, if any, on job tasks while recovering (otherwise known as “work restrictions”). To protect workers from further injury, they should be based on full and accurate information about the demands and requirements of the job. Examples of restrictions may include limits on how much a worker should lift and changes in schedule, assignments, equipment or other working conditions while recovering.

Those who can’t work their full schedule while recovering receive temporary partial disability benefit (TPD) payments. For those able to return to work without restrictions, their employer usually must give them the same job they had before the injury.

What happens to workers who don’t fully recover but are still able to return to work? For those injured in 2013 or later and have had a physician determine that they have reached Medical Maximum Improvement (MMI), the claims administrator must send the worker a “Notice of Offer of Regular, Modified or Alternative Work” on DWC-AD form 10133.35.

If offered modified or alternative work because of work restrictions stemming from the injury, the employee generally has 30 days to accept the offer, or risk having it withdrawn. Workers who reject or fail to respond to the offer likely will not be entitled to supplemental-job-displacement benefits. Modified work must pay at least 85% of the wages and benefits that the worker was paid at the time of injury, and the work must last at least 12 months.

A one-time $5,000 Return-to-Work supplement may be offered to workers who suffer a disproportionate loss of earnings from their work-related injury or illness and have received a supplemental job displacement benefit for the injury/illness. More information on the program and how to apply can be found here.