Workers' Compensation Benefits and Returning to Work

Workers’ compensation is designed to provide you with compensation for your inability to work and for costs associated with your injuries sustained on the job. While not exhaustive, this list is illustrative of the benefits you can expect to receive. The benefits you receive and how/why you receive them inform what happens to your benefits if you are able to return to work – in any capacity.

Medical Care: first and foremost, you are entitled to medical care. You may receive compensation for your out-of-pocket costs including:

• Doctor’s visits;

• Medications;

• Procedures;

• Post-treatment therapy (i.e., physical therapy, possibly psychological treatment); and

• Emergency medical care (i.e., ambulatory transportation or emergency medicine).

You may have to pay these costs out-of-pocket and then seek reimbursement. However, in some cases, your employer’s policy may include coverage for in-house medical care in which all of it is covered at the time it is provided. But, in the case of emergency medical care for serious injuries, you will need to submit receipts for reimbursement or to cover any outstanding medical debts or liens derived from those costs.

Temporary Disability Benefits: you also receive compensation for any wages that you lose due to your injuries. For example, if you are forced to leave work early for medical care; the wages you missed for that day are covered. Moreover, if your doctor recommends against returning to work during your recovery – you receive your lost wages for the time you are out on medical leave.

Temporary disability benefits pay for two-thirds of your lost wages (pre-tax). However, since those payments are a replacement for lost wages, they are also subject to income taxes. Keep in mind that these benefits replace all of your lost benefits; so you should report all incomes you receive from work (i.e., paid lunches, a company car, commissions, tips, overtime, bonuses, lodging, and other benefits you receive from work) — your benefits start to pay out when your doctor confirms that you are unable to return to work.

Permanent Disability Benefits: if your injuries are long-lasting or permanently affect your ability to work. These benefits are paid out – even if you are able to return to work but in a different capacity. These benefits are determined by statute pursuant to the following criterion:

• The date of your injury;

• Your impairment level as determined by a doctor who is a qualified medical evaluator (they have to get a special certification and licensing from the government);

• The doctor will determine your impairment level as a percentage. For example, you might be considered 30 percent permanently disabled due to significant nerve damage in your hands which affects your dexterity;

• The percentage is then entered into a formula which is determined by your date of birth; and

• The calculations are conducted by an administrative law judge who ultimately sets your disability benefits.

Some things you should note, for injuries that occur after January 1, 2013 (so, if you have a new claim, these changes affect you), your benefits will not take into consideration your future earning capacity (so higher paid workers don’t get more benefits than lower paid workers). You also cannot take into account additional benefits for sleep disorders or sexual dysfunction unless the doctor determines that those issues directly result from your work injury. Finally, you cannot receive extra benefits for psychological or psychiatric assistance unless your injury was catastrophic (think dismemberment, serious brain injuries, etc.) or if you were a witness or victim to a violent crime.

Supplemental Job Displacement Benefits

The supplemental job displacement benefits is a certificate which can be used for the following:

• 10 percent can be used on miscellaneous expenses;

• 10 percent can be used for vocational/return to work counseling (therapy);

• Up to $1,000 (1/6) of the benefits can be used to purchase computer equipment;

• The remainder (or all of it) can be used to return to California public schools (i.e., community college, vocational schools, trade schools, etc.).

The purpose of the voucher is to assist workers who were severely injured on the job and are unable to return to their old job in the same or alternative capacity. These vouchers are good for two years from the date of receipt or five years from the date of injury (whichever date is later) and are intended to help you transition to a new job that accommodates your injury. You are eligible for the voucher if your employer is unable to return you to work within 60 days of the medical evaluation report from the doctor (the report the doctor issues which determines when and in what capacity you can return to work). For example, 61 days since the medical evaluation report was released and you aren’t able to work, or your employer cannot provide you with accommodation.

Return to Work Supplemental Program

In addition to the job displacement voucher, you may also be eligible for a one-time additional voucher of $5,000. Unlike the voucher, the supplemental voucher sends you a check that is used to replace lost wages. The check can be used on any of your expenses – no limitations – unlike the voucher. However, you can only receive the return to work supplemental if you are eligible to receive the voucher.

Mileage Recovery

As briefly stated above, you are also entitled to receive reimbursement for travel expenses related to getting treatment for your injury. Your travel expenses include mileage, tolls, and parking. The reimbursable rates are described on this table prepared by the Department of Industrial Relations.

Death Benefits

Finally, if the injury kills your loved one, his or her surviving family members may receive death benefits. The benefits depend on how many dependents survive the deceased worker. However, this section will be addressed in another article because, if you are receiving death benefits – you are unable to return to work.

This section will examine the scenarios in which you may return to work and what happens to your benefits. While reviewing this section, keep in mind that your employer must allow you to return to your old job (if you are able) or offer you an alternative job or provide a reasonable accommodation to help you return to work. Your employer is not permitted to fire you if you can return to work in the same or a different capacity.

Issues to Consider Before Returning to Work:

As covered above, your doctor will make a medical evaluation, and your claims administrator will determine how much benefits you should receive and for how long. These individuals, with you (and your attorney – if you have one), will determine what benefits you receive and for how long. However, your doctor, your attorney, and the claims administrator do not know your job the way you do. It is therefore crucial that you stay in close contact with each of these individuals and give them relevant information as it relates to your job performance. They don’t know the rigors of what your job requires; therefore, if you disagree with one of their assessments, you need to let them know and provide evidentiary support. These individuals process many claims a year and will not know your job like you – coordination between all these individuals and you are critical to ensure that your benefits are paid out fairly and for the amount of time that you need to recover.

Return to your original job in the same capacity at the same pay rate; no accommodations

If you can return to work in your same job without accommodations and at the same pay rate (i.e., you can put in the same number of hours) then any benefits for lost wages (i.e., wage replacement benefits under temporary disability) will cease as you can begin earning an income. However, you may continue to receive compensation if you have ongoing medical treatment issues. But, as you do not need accommodations, it is unlikely you have ongoing medical treatment.

Return to your job with accommodations

In this scenario, you are injured, but your doctor recommends that you can return to work subject to certain limitations. The limitations will vary depending on your injuries and your job, but if your job is physical it could include limits as to the weight that can be lifted or duration of being on your feet; if you injured your neck – the doctor might require a headset or earpiece to avoid twisting your neck to hold a phone.

In this scenario, if you return to work with accommodations, you are performing your same job and should be compensated at the same rate (assuming you can full shifts) in which case any lost wage supplemental assistance should cease but if you continue to receive ongoing medical treatment for your injury (e.g., physical therapy) then those benefits should continue as well as reimbursements for mileage to get to your physical therapist.

Return to your job in a different capacity, different pay rate

If you are able to return to your work but require some accommodations (either permanent or temporary), then you may be eligible to receive the difference in your pay between what you would have earned with no injury and what you earn when you return to work but are limited by your injuries. You also, of course, are eligible to continue receiving reimbursements for your medical costs and treatment for your injuries.

Unable to return to your same employer but take work with another company

If you are unable to return to work and your employer cannot accommodate you due to your injury, but you can work at a different company that does provide you accommodations and a similar pay, then your lost wages assistance will end. As before, you can also continue receiving reimbursements for your medical costs and treatments (including reimbursement for mileage going to and from your treatment).

As briefly covered above, you can return your job (or go to a different job) in a different capacity if, due to your injury, you cannot perform your original job. For example, if you are in a job that requires deft dexterity (like electrician, plumber, carpenter, or other jobs that require you to manipulate complex objects) and your hand is severely injured – significantly impairing your ability to perform the complex tasks your job requires; you can get a new one. But, how do you do that? You spent years training for your particular vocation; it isn’t like you can pick up and do something else – you’re a skilled worker; you have training and education.

Exactly right, the state and your employer don’t expect you to become a day laborer or work in retail and accept lower-paying jobs. Instead, you will receive a supplemental job displacement voucher worth $6,000 (see above for benefits and eligibility). You can use this voucher to attend California public schools and receive additional or alternative training.

So, if you were once an electrician but can’t work in the field, you might be able to go back to school and learn project or site management and become a foreman or oversee for your old employer (or new employer). You can use the voucher for any school that appears on the Eligible Training Provider List. Depending on your employer; you might be able to work out a deal where you return to work in a different capacity after receiving training. If your employer can’t give you a new job with new training; you can use your voucher to get training and apply for jobs. The voucher can be spent on school supplies, books, materials, classes, and other costs associated with re-training.

The law isn’t so simple as “hey, you want this job” and that is the extent of your employer’s obligations. Rather, your employer must comply with strict requirements that describe the nature of the job, duration, and more. First, if you can return to work, your claims administrator should issue you a “Notice of Offer of Regular, Modified, or Alternative Work” which allows you to return to work (similarly, when the claims administrator learns you have a permanent partial disability; you also receive this form).

The offer must:

1. Be a job you can do (i.e., see reasonable accommodation discussion below);

2. Last at least 12 months (one full year);

3. Comply with the work restrictions as described by your physician; and

4. The job must be in a location that is a reasonable commute of where you lived at the time of your injury.

As discussed below and briefly covered here, your employer can offer your old job (if accommodations aren’t necessary or don’t affect the job), a different job without accommodations, your old job with accommodations, or a different job with accommodations. If you are being offered alternative work, the new job must pay at least 85 percent of what you made in your previous job.

If the offer meets all these requirements – you must accept within 30 days of the offer. If you fail to accept within the time frame; your employer may withdraw the offer, and you have no recourse.

Something to keep in mind, you may not like the modified or alternative job offer – and that doesn’t matter. If the offer meets the requirements, then your employer is complying with the law. The employer isn’t required to offer you a job that you want or like; only one that is close to your old job, pays well and is one that you can perform with your injuries.

What happens if your doctor clears you to return to work with restrictions that don’t significantly impact your job – can your employer refuse to accommodate you? These situations are tricky, and this section will go through several scenarios.

First, your employer could grant you the accommodations. In the first situation, if you alert your employer about the necessary accommodations and they are granted; then the story ends. You may continue to receive benefits and earn an income while you recover.

Second, your employer could offer you a series of alternative jobs that incorporate the accommodations; but not your original job. Depending on the nature of your job (and this is very fact specific) – your employer may not be able to offer your old position back to you. For example, if you were a professional fighter and you shatter a femur – no amount of physical therapy will return your leg to its original fighting shape, and your employer may not want to put you back into the Octagon with a permanent handicap. However, your employer could offer you alternative positions (e.g., desk jobs, management, etc.) with your accommodations (special chairs, limited carrying, etc.)

You aren’t required to accept these alternative jobs, and you can decline. However, in that case, your employer has not violated any labor codes as your employer did provide you reasonable accommodations and alternative employment. Your employer is not required to take you back into your old job – even if you are injured on that job.

Third, your employer offers you alternative positions but does not accept all of your accommodations. In this scenario, the issues become much more complex, and it would be best if you relied on an attorney for specific advice. But, in general, if your employer rejected an accommodation recommended by your physician and it was a reasonable accommodation (your employer isn’t required to undertake extremely expensive or impractical accommodations); then your employer could violate the Labor Code.

Fourth, your employer offers you alternative work with some accommodations (but not all) and when you raise concerns about the accommodations; your employer threatens you. In this situation it is much more clear cut – your employer cannot coerce you into accepting your old position or a new job if it endangers your recovery or health. In this scenario, your employer is absolutely in violation of the law.

Workers’ compensation is an entire subset of legal practice in California. It has its own set of courts, rules, and procedures; therefore, you may want the assistance of counsel to guide you through the process. A workers’ compensation attorney can investigate your claim, substantiate your allegations, and firm up your claim. If you need assistance, don’t hesitate to call the Workers Compensation Attorney Law Firm at 310-956-4277 today! The Workers Compensation Attorney Law Firm serves clients throughout Los Angeles County from downtown to the Valley. They handle all things workers’ compensation; if you have a weird case or an unusual injury, they will know how to help you and prove your claim. Call our Los Angeles Work Compensation Attorney today!