Last month, the California Senate passed SB 697. This bill, if signed into law, would require the Administrative Director of the Division of Workers’ Compensation to perform a study on whether it would be viable to link payment for workers’ compensation medical treatment to “value of care” instead of the current model where providers are…

Wiesner English, P.C., is proud to contribute to Kids’ Chance. Kids’ Chance is a nation-wide non-profit that provides scholarships and support to the children of workers who have been injured on the job. During their 2020 to 2021 cycle, they provided 668 scholarships totaling over $2.7 million. Since 1988, they have provided over $30 million…

What happens when you are severely injured at work but are not deemed 100% disabled from that injury alone – yet can’t find a job because of the injury and other disabilities? For injured workers with prior injuries and a qualifying Subsequent Industrial Injury (“SII”), they may be able to obtain benefits from a Subsequent…

Beginning January 1, 2023, peace officers, fire fighters, and other qualified public servants in the State of California (and the attorneys who represent them) will have new tools to ensure that workers’ compensation claims administrators fairly and timely handle claims involving legal presumptions for these employees. A “presumption” effects the burden of proof. Typically, an…

What is the Supplemental Job Displacement Benefit (SJDB) retraining Voucher A retraining voucher (formally a Supplemental Job Displacement Benefit or SJDB Voucher) is designed to help injured workers retrain for different careers or positions. It is not required in every case. It’s designed to cover the costs of retraining (within limits) if an injury causes…

subpoena duces tecum legal discovery produce records

What is a subpoena?

A subpoena is a court order. Sometimes it is an order to be somewhere to testify. If we have a trial and there is a non-party witness (someone besides the injured worker or dependent or, on the other side, the employer/insurance carrier) we need to secure, we need to subpoena them so they are ordered by a court to appear for trial.

For a witness who is a party to a case, a subpoena is not necessary. California Code of Civil Procedure section 1987(b) provides that for a party of record, a subpoena is not needed if at least 10 days before appearing, the party’s attorney is served with notice requesting the witness’s presence in court with the time and place specified.

What is a subpoena used for in a workers' compensation case?

When an attorney talks about a subpoena, it is often in the context of a subpoena for records. A subpoena for records or subpoena duces tecum is a court order to provide records by a given date. We commonly use them to get copies of medical reports, claims files, personnel files, and police reports.

An injured worker usually never sees a subpoena. On rare occasion, it happens. If it happens, normally it is because they received a copy of a subpoena directed toward someone else. But it can be a source of concern; it looks like you’re being ordered to drive half way across the state for no clear reason under threat of penalties and contempt charges. And sometimes an injured worker owns a side business and the business is served a subpoena for records.

What happens if I don’t comply with a subpoena?

Failure to comply with either a subpoena to appear and testify or a subpoena for records can lead to sanctions and contempt proceedings. California Code of Civil Procedure section 128 empowers “every court” to compel obedience to it’s orders. Section 1218 specifies fines and imprisonment may be punishments for contempt. Penal Code section 166 makes it a misdemeanor to violate a court order. And Labor Code section 134 makes it clear that the Workers’ Compensation Appeals Board is likewise granted “all necessary process in proceedings for contempt” to the same extent as a Superior Court.

How to tell who is being subpoenaed?

The first page of the subpoena should have the case caption (the block identifying the parties to the case). If you are the injured worker, your name will be on the front page. A few lines down though you should see “The People of the State of California Sends Greetings to . . . ” the actual subject of the subpoena.

What to do if you receive a subpoena directed toward yourself or your business?

If you’re being ordered by a court to do something, there’s a good chance you’ll end up doing it. But, as with all individual, case specific legal questions: Consult with an attorney.

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As my partner Marc S. Wiesner outlined in a prior post, time missed at work due to a workplace injury is compensated by a benefit called Temporary Disability. Per California Labor Code §4653, this in generally calculated at 2/3rds of the injured workers Average Weekly Wage. However, certain employees in the State of California are…

In my first post, we covered issues that arise earlier in a case (AWW, TD, PTPs, WPI, RFAs, UR and IMR). Part II covered some of the common issues (and shorthand) that would come up later in a case (P&S, stips, C&R, MSA, F&A). Though uncommon, there are particular issues that might exist in a…

I know, it’s mind-blowing, isn’t it? Your work comp doctor, who the insurance may have sent you to, requests treatment but the doctor tells you you have to wait. Why isn’t the treatment immediately available? Why can it be denied and you don’t hear about it for days or weeks after? Welcome to the world…

My earlier post covered issues that arise earlier in a case (AWW, TD, PTPs, WPI, RFAs, UR and IMR). Later in a case, you might encounter one or some of the following situations (with their associated acronyms): P&S—Permanent and Stationary A Permanent and Stationary (P&S) determination can be made by a Primary Treating Physician (PTP),…

Imagine being injured so badly at work that your doctor tells you to stay home. Or, your doctor gives you work restrictions and your employer cannot meet them. You should get paid until you can return to your job or another job. Right? While that makes logical sense, unfortunately, few things in a workers’ compensation…

As with many things in law, the answer is, it depends. The more cynical answer is, yes, but the insurance controls the doctors on the list. So, how good is that list going to be? We call these lists Medical Provider Networks or MPNs. Each workers’ compensation insurance carrier, administrator, or self-insured employer (we will…

There are a few things injured workers should expect. Medical treatment and pay for time lost due to the injury among them. Often not expected, however, is the paperwork and regulations buried in a sea of acronyms. Here, we will discuss some of those acronyms along with some relevant notes. TD—Temporary Disability Temporary Disability (TD)…

What is a Medicare Set Aside ("MSA")? How does an MSA affect my Workers’ Compensation case?

A MSA is an estimate of your future medical costs due to your Workers’ Compensation injury. While these are not required in most cases, injured workers who are Medicare eligible (30 months from full retirement age) or those on Social Security of any kind (SSDI, SSI, etc.) are required to have a MSA before they can settle their future medical care with the Workers’ Compensation insurance carrier. This is so that the federal government is not left "holding the bag" for your medical care after the case is over.

Once a valid MSA becomes part of an approved Compromise and Release (total Workers’ Compensation settlement document), that part of your Workers’ Compensation settlement must be put into a separate, interest-bearing bank account. You can then use that account for any medical care you need in relation to your workplace injury. Once that account is properly exhausted, Medicare will treat your industrially injured body parts.

Contact us today if you need help with your MSA.

Click here to request a free consultation.

After a workplace injury, the first thing that might happen is paperwork or an incident report. It might have been a trip to the emergency room. Often, though, an employee is directed to a front-line occupational medical clinic. Some clinics are favored by employers or insurance companies due to lower cost of care. While that's fine for the company paying the bills, the person with an injury can face long wait times, difficulty getting medical reports, and might never meet the treating doctor. It's not uncommon for someone think they're seeing a medical doctor only to finally get the reports and discover they've been seeing a nurse or physician's assistant and never met the medical doctor responsible for their care.

Some providers at an occupational medical clinic might not be as thorough. Treatment requests have to document the medical need for that treatment. If a doctor, nurse, or assistant is not thorough when documenting the medical necessity for that treatment, the request is more likely to be denied. The patient's medical recovery can be delayed or diminished as a result.

It's common for self-insured employers or work comp insurance companies to maintain a Medical Provider Network or MPN. This works a lot like an HMO where an in-network Primary Treating Physician is in charge of referrals to other in-network providers. Once the claim is filed--or when an MPN is being asserted--the claims adjuster should send MPN information including how to get a list of local doctors in network (see 8 CCR sec. 9767.12(a)).

Getting quality care after an injury is important. Helping find that quality care earlier on is one of the ways we help our clients reach a better result following a work injury. If you or someone you know was injured on the job, please call us or click here to request a free consultation.

Insurance carriers love to "hide the ball" when paying your wages while you are off work recovering from your injury. Whether its not including your overtime or using time off from a planned vacation to deflate your earnings, this guide can help you figure out if the insurance is underpaying you.

The Law

Labor Code § 4453(c) provides four options for calculating your Average Weekly Wage (AWW). In layman's terms, they are:

1) Your regular, full time earnings (full time being anyone working more than 30 hours per week and at least 5 days per week);
2) If working two jobs, the average earnings in a week for both jobs;
3) For inconsistent earners (e.g., part time, seasonal, etc.), the average weekly earnings from the last year;
4) A catch all - any combination of any of the above methods if it ends in a "fair" result.

Generally speaking, the courts should stop once the reach a method that works. Meaning, most full time workers should be entitled to wage loss in accordance with #1 above.

Method #2, the Insurance Carrier's Friend

Life happens. People get sick, go on vacation, have to care for a family member, or take a mental break from working all together. NONE of this bears on someones earning capacity. However, taking the 52 week rolling average of most peoples' earnings will result in a lower average weekly wage (AWW). This is because, as expected, a two week unpaid vacation drags down the average for the rest of your earnings.

Additionally, some insurance carriers will flat out IGNORE other forms of payments or wages like overtime, bonuses, car allowances, lodging, etc. While not all "fringe benefits" (no, Johnny, you don't get a bump in your wages because you get free breakfast at the company cafeteria every morning) are included in wages calculations, it is in your best interest to push for as many inclusions as you can.

Other Considerations

Now that you have an idea as to what your Average Weekly Wage (AWW) is, why is it that your Temporary Disability Indemnity (e.g. wage loss) check is much lower than both your gross and net earning. Are the insurance carrier's underpaying everyone?!?

Unfortunately, that's not the case. In California, lost wages due to an injury are paid at 2/3rd of the injured worker's AWW (with some exceptions for governmental employees). Additionally, there are hard caps on earnings and lost wages. For instance, in 2019, the maximum Temporary Disability rate was $1,251.38. Accordingly, if you earned more than $98,000 a year prior to your injury, state law does not require the insurance carrier to pay the difference in your additional lost wages.

Likewise, insurance carriers are only responsible for 104 weeks of wage (two years) in the first five years of your injury per California law (partial wage loss, either pay rate or hours, still counts as a full day of wage loss against your cap). So, if you have a surgery 7 years after your injury, the insurance carrier is NOT required to pay for your time off to recover.

Using your wage loss in work comp intentionally and judiciously can be the difference between a successful case and an injury causing a financial nightmare.

How do I get my Rate Fixed?

Like all benefits in work comp, while the law may say you are entitled to an increased rate, you need a Workers Compensation Judge's (WJC) Order to force the insurance carrier to fix your wage loss rate (and potentially pay a penalty if it was intentionally incorrect). While you can hope your tenth call to your claims adjuster gets a response, it may be time to call a local and skilled work comp attorney to help you fight for the wages you should have been paid all along.

Additional resources provided by the author

The above is a fairly simplified version of the wage loss analysis we perform in the workers compensation realm. Further, Labor Code § 4453(c) is not the end all be all source for calculating lost wages in work comp - its just the start of the analysis. Like most areas of law, California worker's compensation law is a blend of statutes and case law. This means that the statutes written by our state legislators are then later interpreted by judges all across our state, including our state Supreme Court, to try to apply very specific factual situations to static law. The below links are VERY brief overviews of some of those important cases. Additionally, the above only represents one attorney's summary of the current state of the law in 2020. All cases are different and the outcome of each legal case depends upon many factors, including the facts of the case, and no attorney can guarantee a positive result in any particular case. This guide SHOULD NOT be taken as gospel or cited in court.

Case Law Pertaining to Wage Calculation

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Workers’ Compensation is defined as a “limited benefits system.” Meaning, unlike a Personal Injury case, where damages can be decided by a judge or jury, “Compensation” under California’s Workers’ Compensation system is limited to the benefits defined by the Labor Code. Labor Code § 3209 makes this point very clearly: ““Damages” means the recovery allowed in an action at law as contrasted with compensation.”

“Compensation” under the Workers’ Compensation act, while more narrowly defined than damages, does have some notable benefits. First, Workers’ Compensation in California is a “no-fault” system meaning an Employee can file a claim without proving employer negligence or any negligence. A claim also survives even if there was negligence on the Employee’s behalf.

Second, unlike a personal injury case which can go for years before there is any award, Workers’ Compensation benefits can start as soon as a claim is filed. Even while a claims examiner is deciding whether to accept or deny liability for a claim, up to $10,000 in medical treatment should be provided (with limitations). If a claim is accepted, Temporary Disability payments are designed to offset lost wages (again, and with all things in Work Comp, with limitations).

A Workers’ Compensation claim can even provide retraining before the case is finalized if the right conditions are met.

All to say while there are significant limitations involved in a Workers’ Compensation claim, qualified and knowledgeable representation can help ensure potential benefits are understood and maximized to the extent available.