Keep in mind that if a neighbor, friend, or acquaintance asks you to help out around his or her home and is willing to pay you for it, you a most likely not entitled to workers’ compensation benefits if you become injured.

According to Labor Code Section 3352 you are exempt from Workers’ Compensation Benefits if you are employed for fewer than 52 hours or earn less than $100 within 90 days of the calendar year while working in a home-related or personal services type job.

So the next time Mrs. Smith asks you to hang her Christmas Tree Lights for $50 and you fall off the ladder, look to your private insurance for coverage.

How Large A Portion?

Ouch! You have just suffered an injury while at work, and therefore may file a workers’ compensation claim.  You are in your mid-40’s and the injury is to your back.  You had noticed your back hurting a bit before the injury (probably from just getting older) but it was nowhere near the pain that you are now experiencing since the work injury.  Not to mention you had that old embarrassing lower back injury that you suffered during a picnic whiffleball game a few months ago, which you have since pretty much fully recovered from.  But what should these other aches and pains have to do with your new injury?  After all, if it wasn’t for the new work injury, you would still be able to work!

That is absolutely true.  However, when it comes time to determine the amount of Permanent Disability associated with your back injury, the doctor will attempt to determine just that:  how much of the disability was caused by the work injury and not other contributing factors.  This is called apportionment in workers’ compensation.

The doctor will attempt to apportion your Permanent Disability.  Using the example above, the doctor could determine that 80% of your disability is a result of your work injury, while 10% is due to “degenerative changes” (the back pain you noticed before) and 10% to your whiffleball-related injury.  This is when you say, “But that isn’t fair!  If it wasn’t for the work injury I wouldn’t have any noticeable disability!”  You’re right, but that is just the way the law and the labor code are written at the moment, and we’re stuck with it.

Insurance companies are also beginning to try to apportion an injured worker’s inability to get back to work after the injury to other factors besides the injury itself.  Again, you will correctly shout from the rooftop that “but if it wasn’t for my work injury I would still have my job!”  However, insurance companies are increasingly making the argument that not all of someone’s inability to find a job is related to the work injury.  They put forward that the economic climate is even preventing healthy people from finding work, that the injured worker may not be looking at all available jobs, that the job the injured worker was employed in is now more and more rare for anyone who is looking for work, injured or not.  Simply put, they are looking for other things to blame your inability to find a job on than your work-related injury.

Rodman J Martin

The Health Care Reform Legislation recently passed in Washington DC will significantly impact our clients.  By October 1, 2010, Insurance Carriers will be required to offer insurance coverage for dependents up to age 26.  So, your children will now be eligible to stay on your insurance until they are 26.  No longer do your children need to stay in school to be covered. Coverage now is based upon solely on age. It is also important to note that marriage is not a factor that would exclude your children from your policy. As long as your child is under age 26, they can be covered on your health plan, whether they are married or not. The spouse of your child would not be eligible for coverage.

For our younger clients who do not have health insurance, it is important to discuss coverage options with your parents. Changes to the Workers’ Compensation Laws have made it difficult to get much needed medical care on a timely basis. Sometimes coverage through private health insurance is necessary to obtain treatment. The Health Care Reform Legislation may make a difference.

Lisa E. Ivancich

Workin’ 9 to 5…and then some

It is not uncommon these days to be employed at more than workplace.  After all, the cost of living is high in the Bay Area, and supporting a family on one income is not an easy task.  These issues make it even more difficult when someone suffers a work-related injury that renders them Temporarily Totally Disabled, unable to earn the money that he or she so desperately needs.  The person is not only usually precluded from being able to perform the job that is related to the injury, but also is prevented from returning to work at the other job(s).  When this happens, it is important to make sure that the Workers’ Compensation Insurance Carrier is paying you the right Temporary Disability rate.

If you are injured at work and you are temporarily unable to return to work right away because of that injury, you will receive Temporary Disability (TD) benefits.  These are calculated per the Labor Code of California to be 2/3 of your average weekly wage.  You should receive TD payments every two weeks.

However, if you have more than one job, those wages should be included in calculating your TD benefit amount as well!  Let’s say you work at 2 different retailers.  If you are injured on the first job and cannot immediately return to work, you most likely cannot return to the second job either.  The first job alone does not reflect your average weekly earnings, so it is important to make sure the insurance company is including the earnings from the second job as well!

The downside is that if you were getting paid more at the second job (where you weren’t injured), that hourly rate does not apply in determining the TD amount, only the rate of pay at the job you were injured.  The hours from the second job will be added at the hourly rate of the first job.    The big thing to remember is that if you were working more than one job when you were injured, be sure to let the adjuster on your claim (if you don’t have an attorney) or your attorney know, and provide them with the pay-stub/tax-information that can help them determine what the TD rate should be.

Rodman J Martin

Only 11 1/2 More Hours…

You have been through endless medical treatments, been to a QME or AME evaluation, and then a reevaluation, sat through your two hour deposition, dealt with an endlessly frustrating insurance company (even months before you obtained an attorney), been to Oakland for a hearing(s), gone through maybe one or two surgeries and subsequent recoveries, and now you are finally at mediation, a mediation that can at times seem as drawn out and frustrating as all that has been outlined above.  However, don’t get discouraged.  Like anything else you will encounter in the workers’ compensation system, it is important to at least attempt to keep a positive attitude and to keep perspective.

If mediation is something that your attorney has suggested or believes would be a good idea given the facts and circumstances of your case, it’s typically for a good reason.  Sometimes the two sides (you and the insurance company) just cannot agree about anything.  The only thing you can agree on is that you need a third neutral party to come in and assist with communication and finding some common ground to work with.  This third neutral party is called a mediator, and they will be present at the mediation session.  The mediation session is designed to help facilitate settlement of your claim.  Needless to say, this can take hours, and by hours I mean many hours.  That is why it is important to come prepared, mainly for two reasons: 1) So you yourself don’t go crazy (there are only so many cups of coffee you can drink and texts you can send) and 2) So your attorney can effectively put pressure on the other side without major distractions.

If you have been to the Workers’ Comp Board in Oakland, you know how time consuming/boring it can be when attorney’s are negotiating.  Mediation can be like going to the Board, except longer and without the people watching in the lobby.  Like we often tell clients to bring a book or a magazine to the Board, the same goes for mediation.  Feel free to bring books, magazines, even a portable DVD player with headphones (you might get three movies in during a mediation).  If you want to bring snacks/drinks with you feel free to do that also.  And don’t forget to get someone to take care of your kids/pets on the day of mediation, since you could be gone for the day.

One of the reasons behind why the mediation can drag on so long is because the Defense Attorney could count on you getting tired or hungry, and use it leverage in negotiation, counting on you wanting to leave early and settling for a lesser amount than they ultimately would be willing to put on the table if they had to.  That and they bill by the hour, so the longer they are there, the more they get paid.  That’s not a bad thing, that’s just how Defense Attorney’s are compensated.

However, more often than not the mediation takes a long time to complete because there are simply fundamental areas of disagreement over certain issues of your claim that need to be creatively worked through, and that work takes time.  You are not at mediation because you have an easy case.  You are there because your claim is most likely complex or you also are pursuing a civil claim and are attempting what attorney’s call a global settlement.

The most important thing to remember out of all that is put forth above is: be prepared for a long day of mediation, after all, at the end of the day, your claim could very well be resolved, making those twelve hours spent in a conference room or office with your attorney worth it.

Rodman J. Martin

As your workers’ comp claim comes to a close (it does actually happen), you may be asked to provide information to the insurance carrier regarding Medicare information.  This will most likely be the case if you have a lot of life experience (are older).  If you’re young the only time it would typically be requested is if you are suffering from kidney failure.

The bottom line is you will have yet one more form to fill before you can put your claim to bed.  This is because the federal government wants to know how much money has been allocated for the future medical care of your work injury.  They do not want to pay for something that is considered in the settlement of your workers’ comp claim:  the cost associated with your future medical care.

This is all to “coordinate benefits” between Medicare and the workers’ comp insurance carrier.  Remember, in workers’ comp you are receiving benefits associated with your injury, not damages like in a personal injury lawsuit.

If you are presented with a “Medicare questionnaire form” don’t panic.  Simply read the instructions and fill it out.  You only need to provide your social security number if the Medicare claim number is unavailable.  You will be required to sign the form before you send it in.

To summarize, if you are less than 65 and have been receiving Social Security Disability for 2 or more years, or if you are 65 or older, or if you are suffering from kidney failure, Medicare is going to want to know about your workers’ compensation claim.

Rodman Martin, Esq

On December 31,2009 a ruling was made against  Governor Schwarzenegger stating that the state mandated furlough days were considered illegal.  The Governor implemented Furlough days for two fridays a month forcing state employees to not work and not get paid.  He then implemented an additional day later on in 2009.  The furlough days were intended to save money from the general fund; however, the employees forced to take furlough days were not paid from the general fund.

Employees affected by this decision come from the Division of  Workers’ Compensation, the state’s Department of Insurance, the Departmentof Motor Vehicles, the Public Utilities Commission and the Transportation Commission.

Employees are now demanding back pay for forced unpaid time off.  A decision has not been made yet.

So if yo have a Worker’s Compensation case, be on the look out for your court date to possibly fall on a Friday!

For more information go to : http://www.workcompcentral.com/1/news/news_print.htm?token=C8730EC60C04B56D6A642D08717377AC1D3E7CD0585373B5E1DEEAA4BF2CAE8D&state=CA&id=0ff472b118a9665b462bf2320996d3eeg

Last Monday, the governor signed a bill that will officially penalize uninsured employers.  The DIR just collected data showing that 12% of California employers are uninsured, and the hope is with the increase in penalty costs, employers will more likely get worker’s comp insurance. The penalty will now be up $1,500 per uninsured employee instead of the $1,000 before.  This will add another $2.2 million to penalties collected.

Contra Costa County receives $600,000 to fight worker’s compensation fraud.

To learn more visit: http://www.insurance.ca.gov/0400-news/0100-press-releases/0080-2009/nr098-09.cfm