The Law Office of Kara Bialostozky

Often times, it can be difficult to obtain medical treatment from the employer. Generally, each employer has a medical provider network (MPN), a network of doctors that you may got to for a work related injury. Those doctors generally require authorization from the insurance company before they will start treatment. It is often times difficult to know what their MPN network is, despite ongoing demands for the information and the appointments take time to make as the doctors need permission to treat you before moving forward.

With an accepted injury, the employer requires you treat through their MPN. (Although, in some instances, if the employer did not properly notify you they had an MPN, you may seek medical treatment elsewhere. Knight v. UPS).

Your employer denies that your injury is work related and therefore denies you medical treatment. Depending on why your claim is denied will depend on whether you may get benefits or not.

Your claim can be denied for many reasons including that 1) you were an independent contractor and not an employee, 2) you did not notify your employer of the injury until after you left your job (post termination defense), 3) there is insufficient medical evidence to support your claim, 4) the statute of limitations has run, 5) your injury did not happen at work, 5) you were traveling to work from your home or returning to your home from work (Going and Coming Rules), 6) intoxication, 7) self-inflicted injury, 8) horseplay, 9) off duty voluntary recreational activity, and more. For psychiatric injuries in particular they may also be denied if you worked less than 6 months or were a result of a good faith personnel action.

If your case is accepted, the employer must get knowledge of your status as temporarily disabled before they will issue you benefits. Most insurance companies require you be treating within their Medical Provider Network (MPN) before they will issue you those benefits. However, if your employer did not give you proper notice of the MPN network, according to Knight v UPS, you may treat outside the network and obtain temporary disability benefits.

If your case is denied, you may apply for temporary disability through EDD, the California Employment Development Department. They will assess you eligibility and pay you benefits if they deem you eligible.

In general there are types two types of injuries, a specific injury and a cumulative trauma injury.

A specific injury is an injury that happens on a specific date. For instance, if you bent down to lift a box and hurt your back or fell off a ladder, those are specific instances where you were injured.

A cumulative trauma injury is an injury that happens over time, generally from repetitive use or repetitive trauma. These injuries happen over time due to over work or repetitive action. For instance, if your job involves typing and you notice wrist pain over time, or you do a lot of walking or climbing and notice knee pain that gradually gets worse, or you were exposed to toxins and have respiratory problems, or hear loud noise at work causing hearing loss, those are injuries that occur over time.

There are also psychological injuries, injuries that cause anxiety, depression, loss of sleep, hair loss, body pain, stomach problems, sexual dysfunction, and other symptoms associated with a mental injury. Your psychological injury could be separate and related to a hostile work environment for instance, or could be paired with your physical orthopedic injury at work, for instance depression due to being on bed rest for a broken leg that happened at work.

If you have a psychiatric injury, you must have a diagnosis, and your work must be a predominant cause (generally, 51% responsible, 35-40% for a violent act) of your condition. You need to work for your employer for a total at least 6 months (need not be continuous) before a separate psychological injury can be claimed. (L.C. Section 3208.3). If the injury is caused by “sudden and extraordinary” employment condition, the 6 month rule does not apply.

For injuries after 2013, SB 863, only allows psychiatric injuries to recover a permanent disability monetary award if the injury is a stand alone injury and not as a result of an orthopedic injury; or if the psychiatric injury is related to an orthopedic injury, you can recover permanent disability if the injury was catastrophic (such as burns, or loss of limb), or if you were a victim or witness to a violent crime at work. For any psychiatric injury, if it’s work related, then you are entitled to recover future medical care.

There are two types of settlement in worker’s compensation. They are a stipulation with request for award (Stip) and a compromise and release (C&R).

You are entitled to a Stip under law if your injury is work related. You will get a permanent disability settlement, based on the doctor’s rating of your injury, and then medical treatment for the life of your injury.

A C&R can be negotiated. This is a lump sum type settlement, where the employer wishes to buy their peace, and they offer you money to cover your permanent disability and future medical care and other benefits you may be entitled to. With this type of settlement, you take the lump sum award and seek treatment on your own. You would no longer be able to treat with the employer’s doctors for your injuries, and rather, take the monies you received to treat on your own.

Making a false statement or filing a fraudulent worker’s compensation claim is a felony subject to up to 5 years in prison or a fine of $50,000 or double the fraud, whichever is greater, or BOTH.
Any person who makes or causes to be made any knowingly false or fraudulent material statement or material representation for the purpose of obtaining or denying worker’s compensation benefits or payment is guilty of a felony.

Under Labor Code Section 3751(b), if you filed a claim form, and if the medical service provider knows the claim is pending, they cannot collect money from you for services for the work related injury.

If your claim is denied, and you seek treatment for your injury, and the case moves to trial, and the judge determines your injury is NOT work related, then you would be responsible for your own medical bills.

Temporary disability (TD) are payments made due to your inability to work or your employer’s inability to accommodate your work restrictions due to a work related injury. An injured worker is entitled to 104 weeks (2 years) of temporary disability benefits for an injury . For injuries occurring between 4/19/04 and 1/1/08, the injured work is entitled to 104 weeks within two years from the date of commencement of temporary disability payment. After 1/1/08, the injured worker is entitled to 104 weeks total of TD within 5 years of the date injury. Some exempt injuries have a 240 week cap on TD.

TD benefits are 2/3, two-thirds, of your gross pre-tax wages while you’re recovering from a job related injury. You can’t receive more than the maximum weekly amount or less than the maximum weekly amount set by law. TD is determined by the amount of money you had from your job you were injured at, but also any second job or other earned incomes like tips, overtime, bonuses and housing.

Permanent Disability (PD) is an amount that is supposed to compensate the injured worker for the fact that they have a continuing disability work injury. Typically, a neutral doctor (AME or QME) will examine the injured worker and if the worker has reached a stable level in care, MMI or P&S, the doctor will rate the worker using the AMA guides 5^th edition. This rating, is adjusted for age and occupation, and determines the injured worker’s permanent disability award.

Your employer is required to post notices to their employees in conspicuous places at the work site. The poster provides you information on worker’s compensation coverage and where to get medical care for your injuries. Failure to provide you notice and post these posters can allow you to treat outside of the Medical Provider Network (Knight v. UPS, (2006) 71 Cal. Comp. Cases 1423).

AOE/COE is short for Arising Out of Employment/Course Of Employment. Generally an employer will deny liability for a work injury if they believe your injury did not happen in the course and scope of employment. Generally the employer believes the injury happened outside of work or was pre-existing to your employment.

As an injured worker you have the right to medical treatment for your work related injury. Within ONE working day after knowledge of your injury, your employer must give you a claim form and within ONE day after receiving your claim form (DWC-1), your employer must furnish you with medical treatment.

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Within one working day of notice of your injury, which results in missed work or medical treatment beyond first aid, the employer shall provide you with a claim form, DWC-1. (Labor Code Section 5401(a)). Once the claim form is served, the employer has knowledge of the injury. In addition, knowledge of the injury, obtained from any source by the employer, is equivalent to service. (Labor Code section 5402(a)).

Within ONE working day of receiving a claim form, the employer shall authorize all treatment for the injury, up to $10,000, and provide treatment until a decision is made as to denial or acceptance of the injury as work related. (L.C. Section 5402(c)).

If you were wrongfully terminated due to the fact you were injured at work, you could have both a civil lawsuit and a claim in worker’s compensation. In worker’s compensation the claim is called a 132(a), after the Labor Code section that governs it.

Section 132(a) prohibits employers from discrimination or retaliating against an employee who has sustained a workplace injury or filed a claim for workers compensation benefits. The award is up to $10,000.

A deposition is a discovery tool where the employer’s attorney will ask you questions UNDER OATH about your case. This is fairly common in most worker’s compensation cases. Sometimes, a representative from your employer will be present, but will not ask questions. A court reporter will be present typing down everything that is said in the room. If you need an interpreter, one will be provided to you if you notify us in advance.

If you fail to tell the truth, Perjury, you can be imprisoned and or fined. You may loose your benefits in worker’s compensation and charged with a felony.

Your attorney will prepare you before the deposition begins. Once the deposition starts, the employer’s attorney will go over the “ground rules” for the deposition. You make take a break at any time. You will be asked about medication, drugs, and alcohol you took or consumed in the previous 24-48 hours to see if will affect your memory or ability to give your best testimony.

The types of questions they ask are related to identifying information, previous employment, medical history, injury and treatment, and your current symptoms. If you have a psychiatric injury they can also ask your questions that are very private to find out what other problems could cause your psychological symptoms besides your work injury.

There is an attorney-client privilege and the defense attorney, the attorney for the employer may ask you questions about conversations or communications with your attorney. Do not answer these questions because they are privileged. If you are unsure about questions, ask your attorney.

The deposition is a tool used by the employer to discover information they don’t know about the case and try to save money for their client by finding issues with causation, it didn’t happen at work, and apportionment, other factors contributed to your work injury that they get some discount for.

The deposition will sound very much like a conversation, but everything you say is being recorded and you are under oath to tell the truth.

A deposition is NOT the time to tell your story. It is a tool used by the employer (their defense attorney) to use against you in the case. Try to keep your answers brief and if the question is yes or no, only respond with yes or no. If they don’t ask you about something that you want to tell them, take a break and talk to your attorney first. Always pause after a question is asked to see if your attorney has an objection, then you may answer unless your attorney tells you not to answer.

If you do not know the answer, “I don’t know,” or “I don’t remember,” are fine answers. If you have an estimate, not a guess, you may provide that answer. For instance, if you don’t know the address, but you know a cross street or a town, those are estimates. If you don’t remember, do not guess and say you don’t remember.

Sometimes, the attorney will show you a document to help refresh your memory. If the document helps refresh your memory, then you can say so. If it doesn’t help you remember, then say the document doesn’t help you remember. Just because the attorney shows you a document, it does not mean it’s accurate or that it’s you and no someone with your same or similar name.

Your testimony could be used at trial to “impeach” you. If you testify differently at trial then you did at your deposition, the defense attorney will point out that your story has changed and causes doubt as to your truthfulness.

The testimony is also a basis for investigation, for the defense attorney to check the facts of your story and try to find inconsistencies. It is also to find other records of your medical history to prove that 1) your injury did not happen at work or 2) that your injury was partially caused by some other condition or injury and partially caused by work.

It is best to have an attorney represent you to protect your rights.

California labor laws protect undocumented workers or “illegal aliens.” If you are not legally allowed to work in the United States you are STILL ENTITLED to worker’s compensation benefits if you are injured at your job. L.C. Section 3351 defines employee and includes undocumented workers.

You have the right to receive minim wage, earn overtime pay for working more than 8 hours in a day or 40 hours in a week, file wage claims with the state labor commissioner, file workplace safety complaints with Cal/OSHA and work in an environment free from retaliation for exercising their rights.

If you paid into the SDI system, you are eligible to receive state disability insurance benefits up to the amount you put in. If you were paid cash, you are probably not eligible for SDI.

Even if you used false documents to obtain you job, you are still an employee entitled to receive worker’s compensation benefits (excluding reinstatement back to work and back pay). Farmers Brothers Coffee v WCAB (Ruiz) (2005) 70 CCC 1399 (CA 2^nd –non pub).