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Benefits Due, FAQ

How long does the Workers Compensation insurance company continue to pay me?

It depends. There are two monetary benefits: Temporary Total Disability/Temporary Partial and Permanent Disability.

Temporary Disability is a disability benefit paid while you are off work, healing from the effects of an injury. It is usually the first benefit you receive and is considered wage loss or wage replacement. Many people call this benefit “workers’ comp”. You must be certified by the primary treating physician (PTP) as unable to work, at all, to get temporary disability payments.  Temporary total disability is also paid if your PTP provides work restrictions (modified work) and the employer is unable to accommodate those restrictions.  The rate in which you are paid is determined by the date of injury (the maximum and minimum have changed over the years) and your earnings at the time of injury (average of the 52 weeks of earnings prior to the date). The TTD amount is 2/3 of your average weekly earnings tax free, subject to minimum and maximum limits.  The rate would increase if you were working a second job, and are unable to perform it due to the injury. the rate is not calculated by adding the to earnings together so speak with the adjuster, if unrepresented, or better yet your attorney about what the calculation should be.

Temporary disability is not usually paid for more than two years (104 weeks). There are exceptions and temporary total disability may be paid for more than two years if the injury is;

(A) Acute and chronic hepatitis B.

(B) Acute and chronic hepatitis C.

(C) Amputations.

(D) Severe burns.

(E) Human immunodeficiency virus (HIV).

(F) High-velocity eye injuries.

(G) Chemical burns to the eyes.

(H) Pulmonary fibrosis.

(I) Chronic lung disease.

Two years can go very quickly if you suffer a severe injury requiring extensive medical treatment and multiple surgeries. Especially when the insurance company delays and denies treatment.  Temporary Disability benefits continue until you return to work, your two years expires or your condition becomes  “permanent and stationary”.  Permanent and stationary status, or maximum medical improvement (MMI), is a determination by the doctor that your condition has reached a plateau.  P&S or MMI does not mean your condition has completely resolved. Many, if not most, injured workers need a lifetime of care after being found P&S.

Temporary Partial Disability (TPD) is paid as wage loss when you are earning money but not as much as you were when working. Under this circumstance you may be entitled to a partial disability payment to supplement the earnings you have.

If temporary total disability ends, you should check with the Employment Development Department (EDD) if you are entitled to State Disability Insurance (SDI).  We often recommend you apply early on, even when you don’t need them, so that your application is on file. You need to make sure you tell EDD you are getting workers’ compensation and that you are not asking for benefits and that you just want to have the application on file in case you need them.  Check with EDD but usually EDD is not paid for more than one year.

EDD also can provide unemployment benefits.  When you apply for State Disability you are saying that you are disabled and unable to work.  This benefit is better for you tax wise, than unemployment benefits, but always check with a tax specialist regarding all tax implications.  When you apply for unemployment benefits you are stating to EDD that you are ready willing and able to work. If you are not ready willing and able to work, it can affect your workers’ compensation case by saying so.  

When you apply for State Disability, you want to use the date of injury as the date you are applying. Do not use the date you go into EDD. EDD will look to the 18 months of earnings prior to the date you use for calculating how much money your would receive each week. If you use the current date, presumably your earnings will be less because you have been out of work due to the work injury.

NEVER accept EDD benefits when receiving TTD or TPD.  It is okay to apply for EDD and have your application ready to go so you can quickly get benefits if TTD ends, and we encourage that you do apply. Just make sure to tell EDD what benefits you are receiving.

NEVER accept TTD, TPD or EDD if you are WORKING (any earnings unless passive earnings), without letting the carrier or EDD know your earnings.  It is always okay to work while you are in the middle of your case but you CAN NOT accept wage loss (TTD, SDI at the TTD rate of pay, or TPD) while working.  You can work and receive permanent disability payments.  (see below).  And yes, driving for Lyft, Uber, handyman work, cutting hair on the side, babysitting are earnings and can lead to insurance fraud if you are not honest with the insurance carrier about your earnings. You can be sure the defense counsel will ask you about this during your deposition, while you are under oath.

Do I have to pay back EDD if I receive benefits (see FAQ)

Permanent Disability (PD) is your settlement money.  The State of California determined how many weeks of PD is paid for every percent of PD.  The rate PD is paid is determined by the date of injury and your earnings.  Permanent disability is paid at a much lesser rate than TTD. When PD starts, you can ask EDD to supplement the PD amount to meet the TTD rate (pay you the difference).  

The PD percentage, and thus how many weeks those payments continue, are based upon the medical legal doctors opinions or PTP (PR-4 report) when you become P&S/MMI.  The doctor issues a report which should outline whole person impairment (WPI) for each body part that has been injured by the subject work injury and has been found to have permanent impairment.  The WPI is found in the Fifth Edition of the AMA Guidelines. The book has chapters for each body region. The impairment found by the doctor then is converted to a disability percentage by a formula created by the State of California.  If you are unrepresented, you should insist that the report be rated by the Disability Evaluation Unit (DEU) at the Workers Compensation Appeals Board (State of California). Do not rely on the claims adjusters rating of disability. If you are represented, your attorney will make this determination or also ask the DEU for their opinion.

If a doctor outlines WPI, for some dates of injury the carrier is required to start paying permanent disability advances (PDA’s) if you are not currently working.  Keep in mind any PDA check you receive, and they are usually every two weeks, will be credited back to the carrier as already paid when you settle.  For older dates of injury the carrier must advance disability, if there is a WPI report, regardless of whether you are working.

If the case has not settled, the carrier is only obligated to advance a “reasonable” amount of PDA’s.  Since the case is being litigated, and the PD level can go up or down, depending on the doctors opinions, the carrier will advance the least they can support legally.  You will only know how many weeks the PD will be paid, once a settlement has been reached and it has been approved by a Judge (Stipulation with Request for Award) or you have received a Trial decision (Findings and Award) and the appeals are over.  (See FAQ re Stipulation With Request for Award vs Compromise and Release settlement)

The total amount paid for PD depends on the percentage of the permanent disability rating. The higher the percentage, the more weeks of payments. These payments are not always paid for life! The number of weeks ranges from 3 weeks for 1% PD to 897.25 weeks for 99% PD. 

For disabilities between 70% PD and 99%, PD there is a “life pension” (also paid every two weeks) which follows the end of the permanent disability payments. For injuries after 1/1/2006 the life pension ranges from $77.31 per week for 70% to $301.50 per week for 99%. Once these “life pension” payments begin, they become subject to an annual cost of living increase (COLA).  Prior injuries may not have a COLA and rates will be different.

A settlement or Findings and Award for 100% permanent total disability is paid out at the temporary disability rate FOR LIFE. It is subject to an annual cost of living increase in dates of injury after January 1, 2003.

Social Security Disability – For serious ongoing injuries/disabilities, you should also apply to the Federal Government for Social Security Disability Benefits.  Social Security attorneys have stated to us that you do not have more of a chance of receiving Social Security Benefits if you have an attorney at the application stage.  They do recommend you obtain an attorney to help with an appeal if the application has been denied.  We recommend that you speak with an attorney right away if you are considering filing, since it can take a very long time to get approved for these benefits.  Feel free to contact our office for a list of referrals of quality Social Security attorneys in the East Bay area.