Workers Comp Lawyers in San Diego

Workers compensation cases in San Diego don’t differ much from other cities in California, but there is one significant issue that separates it from its behemoth neighbor – Los Angeles – to the north.

“San Diego is big, but we don’t have the density of L.A.,” said Robert Mclaughlin, an attorney in San Diego who has been practicing for 30 years and has tried hundreds of workers comp cases.

Why does density matter? More density means more doctors in the workers comp system. That can be particularly important in a state like California, in which more and more doctors are opting to get out of the workers comp field.

“It’s so formulistic, so time-consuming,” McLaughlin said. “Young doctors are not getting into it, and good doctors are leaving.”

It may not make much of a difference when it comes to treating basic injuries – say a sprained ankle – in which the diagnosis and treatment plan are clear-cut. But in more complicated – and contentious cases – that may lead to appeals of decisions by physicians and/or claims adjusters, it may place the injured worker at a disadvantage, McLaughlin says.

“When a case is denied or a body part is denied, up in L.A. they can find a doctor that will still treat them,” he said. “We don’t have that option in San Diego.”

The hospitality and construction industries are prominent in San Diego, so McLaughlin is accustomed to seeing workers comp cases from construction workers as well as hospitality workers such as maids, cooks and custodians. “We see a lot of back injuries…ergonomic things that could have been avoided,” he said.

McLaughlin also pointed out that in San Diego, a fair number of workers (including U.S. citizens) live in Mexico, which can present its own challenges from time to time.

Workers comp laws can vary considerably from state to state, and California’s are among the most comprehensive and far-reaching in the nation. Every employee of a company large and small is covered by workers comp insurance.

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.

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.

Reasons to Hire a San Diego Workers Comp Attorney

In an ideal world, when workers are injured on the job, they would receive necessary medical treatment immediately, be fairly compensated for lost wages and return to work when they are healthy.

Unfortunately, we do not live in an ideal world.

Workers often run into obstacles in one (or more) of the three key areas in workers comp – medical treatment, wage compensation or returning to their old job – and need help negotiating a system that has a lot of twists and turns.

“The system has gotten so complex it is difficult for the worker who hits bumps in the road to know how to legally maneuver over the bumps,” McLaughlin said. “Which is generally why they have come into my office.”

Some of the signs that your case might be better handed by a workers compensation attorney in San Diego include:

• Delay in accepting the claim as work related
• Denial of claim as work related
• Denial of a specific body part that was injured on the job (eg. claim accepted, but the carrier is only accepting the shoulder and not the neck as part of the work injury.)
• Denial of medical care
• Payment of temporary total disability (TTD) at an incorrect rate.

If any of these signs apply to your case, it could be time to call an attorney and see what can be done to receive proper benefits.

McLaughlin says that “usually the ones that come to me have one of the five problems above or the doctor treating them tells them they need a lawyer.”

What Does a Workers Comp Lawyer in San Diego Do?

Most workers who suffer minor injuries on the job that require medical treatment only should have little trouble navigating the workers comp system. California also offers injured workers Information and Assistance (I&W) officers who can help walk them through the workers compensation process (though these officers cannot provide legal advice).

But when cases are more complex or involve disputes over the cause of the injury, body parts involved and/or proper disability payments, a workers comp lawyer can be invaluable in ensuring that a worker’s rights and interests are protected.

The stakes are even higher if a workers comp dispute leads to settlement negotiations or a court trial.

“The attorney will know the insurance carrier (more likely the claim examiner) and his/her tendencies to low ball settlements offers or come in fair, plus their standard legal tactics in handling a case, and hence how to counter those tactics with other legal tactics,” McClaughlin said. “Same is true of the judges. This only comes with years of experience in dealing with the system, the carriers and judges.”

McLaughlin says a good workers comp lawyer can be expected to help the injured worker in the following areas:

• Get the worker to a good treating doctor; the sooner the worker gets healthy and well, the sooner they can go back to work.
• Make sure all body parts alleged to have been injured in the work accident are addressed
• Appeal, when appropriate, denied medical treatment requests made by the treating doctor, and appeal that decision to the Workers’ Compensation Appeals Board (WCAB) when appropriate.
• Get workers second and third medical opinions from good doctors when necessary
• Make sure the medical reporting by the doctors meets the appropriate medical-legal guidelines set out in the Labor Code, regulations and case law so that the report can be relied upon by the WCAB and the parties (this may require letters directed to the doctors or depositions of the doctors regarding the medical-legal issue(s) and sometimes educating the doctor on the law to obtain the necessary report from the doctor.)
• Confirm the correct Average Weekly Wage (AWW) and hence Total Temporary Disability (TTD) rate, plus group number (job description) for the injured worker
• And if the parties cannot agree or settle, litigate the disputed issues based on the law.

Bottom line: If you find yourself having to navigate any of the above areas during the workers comp process, it’s probably time to call in a professional.

How Much Does a Workers Comp Lawyer in San Diego Charge?

Workers compensation attorneys in California are paid on a contingency basis, meaning they will receive a percentage of the benefits if they win for in the case.  California has some of the lowest fees in the U.S. The percentage lawyers receive generally is 10%-12% of benefits awarded, but can go as high as 15%, if they win.

The key phrase in that sentence is “if they win.” If the attorney loses your case, he/she does not get paid.

The first meeting with a worker compensation lawyer is known as a consultation and is free. You should come prepared with the facts of your case and whatever documentation you have to explain your side. The attorney asks questions, reviews the documents and should be able to tell you whether you can do this alone or will need help from an attorney.

The attorney gets paid when:

• You reach a settlement in your case.
• You receive a permanent disability award.
• You receive a death benefits award.

The attorney is only partially compensated for his time when you receive temporary disability benefits or medical benefits.

The attorney can receive an hourly rate for accompanying you to a deposition, but that is paid by the insurance carrier. The insurance carrier also is responsible for paying your attorneys out-of-pocket costs for proving medical issues that lead to you receiving medical benefits.

Whatever compensation the attorney receives must be approved by the judge in the case.

“I think unless the injured worker has a medical only case or a very basic case, lawyers do make a difference,” McLaughlin said. “I have advised some workers to continue on their own until they hit the ‘bump in the road’ but about 60%-70% will hit a ‘bump in the road’ and need legal representation.”

How to Handle a Workers Comp Case on Your Own in San Diego, CA

Most claims do not require the help of a workers comp attorney. When the system works as intended, you simply have to notify your employer to kickstart the process of filing a workers compensation claim. If things do not work out in your favor, you have the option to appeal a claim denial. This will require the help of a workers comp lawyer, but for reference, the step-by-step guide is detailed below.

How to File a Workers Comp Claim in San Diego

Any worker injured on the job in San Diego should immediately notify a supervisor. 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, 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 be downloaded online. Workers also can contact the Department of Industrial Relations’ Information and Assistance Unit online or by calling 1-800-736-7401.

Fill out the employee section of the claim form, sign and date it, and give it by hand or mail it to your employer as quickly as possible. Keep a copy for your records. If you mail the claim form, use certified mail (“return receipt requested”) so you have a record of the date it was mailed and received. If you don’t return the completed form to your employer, you could lose your right to benefits.

Employers must complete the “employer” section of the form and send it to their 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 San Diego Workers Comp Claims

The workers comp process in San Diego includes multiple deadlines for employees, employers and insurers.

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. 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.

However, 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 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 in San Diego

If your workers comp claim is denied, you can file an appeal with the state Division of Workers Compensation Appeals Board by filling out this form. You must file that form at the San Diego DWC office. You must present that form to the claims administrator.

Phone: (619) 767-2083
7575 Metropolitan Drive, Suite 202
San Diego, CA 92108-4424

The DWC office will send you a notice that has your assigned case number. 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).

Workers will want an experienced workers comp 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 reaching 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).

Eligibility for Workers Comp in San Diego

All employers are required by law to provide workers comp insurance in San Diego 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) at1-888-229-2472 or go to its website at www.caworkcompcoverage.com

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

Any San Diego employer that fails to carry workers comp insurance is 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). Go to www.dir.ca.gov/dlse to find a local office.