It's been 4 months and still haven't been paid. Permanent Disability was taking out of my settlement check and there is still money owed. A settlement conference took place 2 weeks ago, defense never showed up but was contacted by phone and admitted to owing me money. What do I do . They can't just take PD and TD without me knowing or agreeing to it right?
The defense is entitled to credit for Permanent Disability advances paid to you prior to the settlement of your case. The amount of permanent disability benefits that had been paid to you should of been reflected in the settlement documents.
As for temporary disability benefits the insurance company is sometimes entitled to take credit for temporary disability overpayments, but this is not automatic and should of been discussed with you or your attorney. Another way that you may be required to pay for temporary disability benefits is if you were receiving benefits from the state [EDD] and the insurance company at the same time. In this case EDD will try to recover the duplicative payments from either you or the insurance company.
In your question you state that the defense has admitted to still owing you money on your settlement you should seek a penalty from them, realistically 10% of what is still owed.
I would recommend contacting an attorney in your area if the defense does not pay the remaining balance. You can also ask for an accounting of the permanent disability benefits that were paid to you.
Your question is complicated but I'll try to keep the answer simple.
Generally you don't have to "pay back" to the insurance company. If there is an overpayment of temporary disability, they might claim a credit against the eventual settlement. They would also claim a credit against the settlement for any advances they may hae paid to you. The advances are like loans against your settlement. "Claiming" and getting are not always the same thing, however.
If the defense attorney didn't show at the MSC, was the MSC rescheduled to a new date? The attorney should have a complete benefits print-out for you at the MSC so you can see what was paid in terms of temporary and permanent disability.
If there has been a delay in getting you your benefits, you may be entitled to a 10% (or even 25%) penalty on the delayed amount.
I recommend you consult with a good workers' comp attorney. There are some really good ones in your area. Find one here at www.avvo.com or at www.caaa.org. CAAA is the association for attorneyes here in California who represent injured workers. Or you can call me for a referral.
The Insurer is supposed to pay Temporary Disability only for the specific days the medical reports by the insurer's MPN Doctor says you are totally disabled.
If money is paid as "TTD" or Temporary Partial Disability Indemnity, YOU KEEP IT. TTD and TPD payments are NOT deducted from any resolution FOR THE DATES IN THE DOCTOR'S REPORT.
if the doctor writes that you were no longer temporarily disabled effective Feb. 1, BUT the adjuster doesn't get the report in the mail until March 1, you were (likely) paid TTD Feb. 1 through March 1 that you will have to 'pay back' (because you were not TTD any longer).
THE ADJUSTER CAN 'TAKE' that overpayment of TTD without you 'knowing or agreeing to it" because that's the law.
When the adjuster pays TTD past the date that the doctor wrote the TTD ended, the adjuster mails a letter explaining they are taking 'credit' for the extra days that TTD was paid but you weren't TTD.
Then, if the insurer gets a medical report from it's MPN doctor with factors of PERMANENT disability, the adjuster IS REQUIRED to pay PD advance payments (even though they don't want to).
So, YES, the Insurance Adjuster CAN pay PD without you agreeing to it.
If the adjuster fails to pay the PD Advances, you can insist on penalties for failure to timely advance PD money every two weeks. AND the Audit Unit can fine the insurer thousand$.
The insurer does NOT want to pay your PD. But they have to -- up to 80% of the estimate total. So the law lets them deduct each Permanent Disability check from any final outcome (settlement or judgment at trial).
WHAT DO YOU DO? Sit down with your attorney or with the INformation & Assistance (I&A) Officer at your WCAB Office (hopefully, the claim was filed down the freeway from you at the Riverside WCAB), and make certain the matter is ready for trial--- that is, you have you doctor's report served on all parties and it's admissible and a judge can make a finding in your favor (so the history in thorough and complete and not missing anything crucial).
Then insist on a trial. File the DOR yourself, if you have to. Put in that you are requesting 'sanctions' for defense attorney's failure to appear 2 weeks ago (keeping in mind he likely never got the hearing notice...I only get about 1/2 mine since we went electronic).
Typically, a few days before trial the insurer's attorney will get his settlement authority and make an offer to avoid trial.
If you aren't ready for trial and you need a little more of your possible award, you can request the Adjuster make a one-time Permanent Disability Advance for a special need like a car repair.
However, if the adjuster has paid out 80% of what it estimated the insurer would be ordered to pay at trial, the adjuster cannot pay out any more.
Hope that clarifies what's happened for you!
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