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How is the recovery accessed for workers comp claims? I was injured at workplace 1.5 yrs ago...

Los Angeles, CA |

I've been receiving treatment from various doctors since injury, including QME. I've been receiving temp disability checks until recently changed to permanent partial disability checks and started to receive almost nothing. Can I still file a wrongful termination lawsuit? Also, how long will I receive the permanent partial disability checks? What factors will the insurance company consider if I try to retain attorney to settle for one lump sum payment?

Attorney Answers 3

Posted

That's a lot of questions in one post. Let's see what we can do with them.
1. Once your treating doctor or the QME says you've reached maximum medical improvement, the carrier takes you off of temporary total disability and switches you to permanent partial disability. This is paid at a much lower rate and only for a finite period of time. How long depends on how bad the injury is. Often, the carrier sends you a letter telling you their estimate of how much you will get...but not always.
2. If you feel that your employer fired you because you got hurt on the job, that would be a violation of Labor Code 132a. The time limit for filing under this code section is one year from the date you were terminated. If you think you were fired for some other reason, then it's not under workers comp and you should see a labor and employment attorney to discuss it.
3. There are a lot of factors to consider in valuing a claim. Too many factors to go into here. L.C. 132a also prohibits them from punishing you for getting an attorney. You should consult with a good w.c. attorney to discuss your settlement options. We have several strategies for increasing your settlement and it's usually well worth it to hire an attorney. You're dealing with pros on the other side. Their job and training is to limit what you get. Your attorney's job and training is to maximize what you get.

There are some great w.c. attorneys in L.A. Find a good one here at www.avvo.com or at www.caaa.org. CAAA is the association for attorneys here in California who represent injured workers. Or you can call me for a referral. Good luck.

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Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Excellent, thorough and caring response.

Asker

Posted

What rights do I have if I disagree with the permanent partial disability and/or with the amount for its checks? Thank you Mr. Borah

Brett A. Borah

Brett A. Borah

Posted

I've already suggested that you get a lawyer. I still recommend you get a lawyer.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

You are severely disadvantaged without an attorney. The small amount of fees workers' compensation attorneys get pales in comparison to the help they can give and the power they can put behind your claim. To find a workers' compensation attorney, please look at the membership list of the California Applicant Attorneys Association (CAAA) http://caaa.org/cs/. CAAA is the strongest bar association in California for attorneys who represent injured workers.

Posted

Hire an experienced workers compensation attorney to go over your claim. The permanent disability claim is based on a doctors impairment rating. Percentages are calculated by a set formula which taken into account the ratings of both parties.

Jonathan N. Portner, Esquire, Portner & Shure, P.A. Maryland and Virginia Personal Injury Attorneys. This response is general information and not legal advice, and does not create an attorney-client relationship. This response should not be relied upon. Please note that no attorney-client relationship exists between the sender and the recipient of this message in the absence of either (1) a signed fee contract and (2) remission of an agreed-upon retainer. Absent such an agreement and retainer, I am not engaged by you as an attorney, nor is any other member of my law firm

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Posted

I am not commenting on any workers' compensation aspect of your case. I write to make sure you are aware you may have rights under the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA) and/or the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA). Many on-the-job injuries meet the definition of "disability" under the FEHA, or under the FEHA and the ADA. If they do, you may be entitled to reasonable accommodation for your disability. Reasonable accommodation may include transferring some non-essential job duties to other employees, providing equipment or devices to enable you to do the main functions of the job, allowing extra time off work for things related to the disability, and more. Also, the employer may not treat you differently from other employees because of your disability. For example, the employer may not refuse to promote you, deny you training or otherwise limit your job opportunities, and the employer may not fire you because of your disability. Rights under the FEHA are triggered when an employer has at least 5 employees. Rights under the ADA are triggered when an employer has at least 15 employees. Any rights under the FEHA or the ADA are separate from rights you may have under workers' compensation.

Please look at my Avvo guide on the ADA: http://www.avvo.com/pages/show?category_id=6&permalink=disability-discrimination-in-employment and my Avvo guide to the differences between the ADA and California's more generous FEHA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada?published=true.

You may also have rights under the California Family Rights Act, Government Code section 12945.2 (CFRA) and/or the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA). These laws allow covered employees to take a maximum of 12 weeks per year of unpaid leave due to a serious medical condition. The 12 weeks can be taken all at once, in increments of fractions of an hour, or anything in between. The only limit is that the total time off cannot exceed 12 weeks in one year. To be eligible under the family leave laws, all of the following must be true: (1) your employer has at least 50 employees who work within 75 miles of one another; (2) you have worked for this same employer for a total of one year, even if not consecutively; (3) you have worked for this employer for at least 1,250 hours in the immediately preceding year; and (4) your medical condition meets the definition of “serious medical condition” under the family leave laws. Your rights under the CFRA or the FMLA are separate from any rights you may have under workers' compensation.

Please look at my Avvo guide on the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA): http://www.avvo.com/pages/show?category_id=6&permalink=family-and-medical-leave-fmla-summary-of-key-provisions.

Finally, I agree with the recommendation that you contact the California Applicant Attorneys Association (CAAA) http://caaa.org/cs/. CAAA is the strongest bar association in California for attorneys who represent injured workers.

*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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