Should you go to Trial to get more money out of your workers' comp case?
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- Опубликовано: 2 июн 2022
- This video reviews whether you can get more money at Trial in workers' comp. If you are an injured worker with a California injury, and don’t have an attorney, this video is intended to help provide an overview of workers’ compensation topics so you can better represent yourself.
In cases in Superior Court, and often on TV, people go to trial to get more money than what you'd get at settlement. But most of the time workers' comp doesn't work that way. If there is no dispute over the QME rating, most of the time the judge can only award the PD found, which is the same as the Stipulations likely would be. Unless there is some other dispute such as which occupational code is correct, or is the report substantial evidence, then there may be no reason for trial. Workers' comp is not the type of system in which an injured worker wants $30,000 for a C&R, the adjuster offers $20,000, so it goes to trial to see what the judge orders. A judge will base his or her decision on the medical reporting, and that will be rated out using the required method.
Jeremy Lusk is a certified specialist in workers’ compensation with almost two decades of experience, and previously served as a Judge at the Fresno District Office of the WCAB. He has worked out of Fresno, but appeared at numerous Boards to represent both injured workers and employers/carriers.
No attorney/client relationship is created or implied by this video. This video is not offering legal advice as to what you should, or should not, do in your workers’ compensation case, but rather offers education/information as to the California workers’ compensation system for unrepresented workers so they can better represent themselves and make more informed decisions.
If you have any questions, let us know at questions@mywcguide.com
I went to trial and was awarded more money. The doctor disregarded my objective findings which was a MRI, and based on the law here all medical evidence must be looked at. My impairment rating went from 6% to 25%
Did you get the mris on your own? I am going to trial in 2 months or so, and I still have bad neck and back pain. I’m thinking of going to my own doctor and get mris and see if they accept that at trial.
What state? I’m in California.
Why isn't "pain and suffering" part of workers comp. These injuries can be just a devastating as a car accident and really affect peoples lives ie: loss of work, less money, termination, and long term if not lifetime pain. Also, i was told that here, in NY, you have to pay the insurance company back for the all the money they paid you for while you were on temp disablity when you settle. I thought that's what insurance was for? You can't sue your employer but you have to pay back benefits if you settle? What does that leave for the injured worker after benefits payback and lawyers fee's? Let's not even begin with how you're made to feel when you get injured. Slow treatment approval, sometimes often delayed for months, denials, IME's when they don't like what your doctor reports and the overall miserable experience that Workers Comp is. This system is made to protect the employer NOT the worker. It's very sad.
I don't know how the New York system works at all. In California, the trade off that was established long ago is that the employee does not have to show any fault on behalf of the employer. So the employee just has to show he or she got hurt at work, and doesn't have to show any fault or liability or negligence of the employer. The trade off is that an injured employee can only recover what the statutes allow. In California, the employee can get temporary disability, permanent disability, medical treatment, and some job retraining benefits. But there are no provisions to recover pain and suffering.
@@myworkerscompguide Not as an attorney but I agree in this assessment as an adjuster. The system built in CA, as well as likely most liberal states, is to rehabilitate rather than indemnify. If workers had the ability to sue in civil court for medical, lost time, and pain and suffering, they would face harsher determination. Worker's would have the essentially gamble at that point to be paid for what they believe to be the monetary equivalent to the total expense of their unfortunate work related experience. The entire point of the CA Work Comp system is to find a middle area for the employer and employee where both can reach a happy medium.
@@aavalos7760 Agreed.
I’ve been mmi and had it taken back do to pending second surgery and still was sent back to work full duty but haven’t been back to work since 2019
Those situations can get messy. It is important to remember that the insurance company owes up to two years of temporary disability within five years of the date of injury.
Suffered an back injury at work which later down the line revealed a pars fracture and nerve pain down my left side , Employer made up false evidence to not allow me treatment and payment on the initial claim which I wasn’t allowed to visit doctor or be seen do to hearing status after I prove the evidence was false I was already scheduled to see their IME which she ruled MMI without even looking or touching or testing because the initial diagnosis was a sprain listed so she ruled mmi which blocked EMG testing even with The orthopedic specialist findings they are challenging his request for additional allowance while I sit in agony, workers comp seems to find all doctors who only rules to benefit employer no matter the Objective evidence this is tiring, painful and disgusting and I feel that my lawyer doesn’t have a urgency in away it’s been 10months I don’t know how ppl could go through this for years I’ve taking so many pills to try to sleep an get comfort it’s terrible
The workers' comp system in California is slow and frustrating for injured workers. Since you mentioned an IME I'm going to guess you're not in California, so I'm not familiar with your state's system. And as you have an attorney, you would have to ask him or her about your case. Best of luck to you.
Hello reaching out as far getting frustrated about my lawyer etc keep changing on my case. My case happened on 9/11/2021 hit by a box on Conyer belt at fedex. Reported my injury and went to doctor on 9/14/2021 due a swelling forearm and felt a vein in that arm part. Now am deciding to not take settlement due went to a nerve damage to neck shoulder forearm hands both sides. Seeing if can get another lawyer on getting right settlement on injuries now and was told go back to work and can't stand for long periods and pain after getting a emg test done needles in each arm for the test. They now trying not to get my pain medications from fedex insurer.
It is possible to change attorneys. I did a video on that topic here ruclips.net/video/rjAATo7r5hg/видео.html My general recommendation is to do a search of the State Bar website and look for certified specialists in workers' compensation in your area.
How multiple Qme reports from different doctors, for different specialities are getting combined by the DEU? Is the DEU going to Issue a PD after combining all Qmes or the injured worker needs to request the combination of those mulptile Qme specialities.
Often times the DEU will not issue one combined rating unless asked to do so by the judge after trial. The DEU will usually just rate one doctor at a time. Those will then generally get combined using the Combined Values Chart.
Thank you for your teaching, please my question is , can I use my employee vacation time earned if I’m still waiting on TTD checks ?
If your claim is on delay, or is denied, so you aren't receiving TD yet, there's certainly no rule against using your sick leave or vacation time. I have many clients do exactly that.
@@myworkerscompguide Thank you for quick response Sir, my case my employer have decided not to accommodate my new work restrictions. I have requested TTD benefits but not received yet, so can use some of my vacation time earned?
@@chikii44 Generally yes. However, if the employer cannot accommodate temporary light duty restrictions, then insurance company needs to pick up temporary disability within 14 days, or they may owe a self-imposed penalty. So TD should start, theoretically, quickly.
Hey I got a ? So my doctor raised my weight lifting from 10 pounds to 20 I went home tried to lift a box my mom weighed to 20 and and I can't do it with out shooting pain down my leg and arm dropped it tried the dumbel same thing back pain and shooting pain I told my doctor on the next meeting and he just lowered it to 15 pounds. Is it normal for a work comp doctor to just bump up weight and not seeing if you can do it ?
It's one thing if he had the weights and see if I can do it bc I know I'll struggle with 15 to
Most doctors are making approximations. I don't know that I've ever heard of a doctor having specific weights in his or her office to test it. If it gets to that point, they often recommend a Functional Capacity Evaluation to test specific weights and movements. It sounds like it's probably good news that your doctor lowered your lifting requirements after you said you couldn't do it.
What if you have a prothestic life care plan. And worker comp sends a low ball offer on a c&r during mediation. How would a judge or trail affect award?
If the workers' comp adjuster or attorney offers a low ball C&R offer, then the injured worker can just reject it. The judge cannot force the parties into a C&R. If it goes to trial, the judge would just award open future medical care.
Do you have to hire an attorney to get a settlement if there really is nothing to complain about ?
( insurance has accepted your claim, paid you time loss benefits and all medical related expenses like prescriotions)
Nope. The system was designed to function without attorneys. That’s why judges review all settlements for adequacy. On complicated or higher dollar value claims, attorneys often will negotiate a higher settlement. But you don’t have to hire an attorney. Especially on routine or low dollar claims.
What if goubwerebshivesvayha😅i
What if your claim was denied and you haven't received any benefits for the last 2 yrs and after the deposition of a witness to the accident in which he states he saw the accident happen that wc insurance denied for happening away from work now they offer a settlement is that something the judge can rule on and make the offer go up
A Judge has the power to approve a settlement, reject a settlement, or suspend action on it. The Judge cannot advocate on behalf of an injured worker or force the insurance company to pay more for a C&R. If your case has been denied for two years and witnesses have been deposed, I would suspect that you have an attorney. If that's the case, you need to ask your attorney as he or she knows your case best.
@@myworkerscompguide I. Have an attorney and have been told that lost wages for the years the case was being denied are not possible under CA workers comp riles neither is future earnings my disability rating sits at 19.7 so what he is telling me is I'll 19k and I can sell my future medical and get another 20k so I e been offered 40 bot the chart I saw said I get 54 weeks at 65percent of my salary that well exceeds 40k
If you decide to go to trial for your worker's comp case. Would wage loss be a factor for the judge ( tips included) to increase the amount of money you can get or will the judge rely on the injury only ?
It depends on what the dispute is that goes to trial. If the dispute is whether an industrial injury occurred or not, then wage loss is not really relevant, other than for helping to determine the TD rate should the injured worker prevail. If the dispute is the appropriate TD rate, then evidence would be needed as to wage loss including tips. It just depends on the dispute put before the judge. If it's just a dispute over settlement, wage loss and tips would generally only be a factor as to the correct TD and PD rate.
i was given a swivle chair
I’m in California, going to trial soon, my ex employer denied my case. It was a car accident at work. What can I do? How long does a trial last? My attorney told me the judge reprimanded the defense for stalling the case and not willing to settle. This has been going on for 5 years! 😳
The length of a trial can vary from one hour to many days. Every case is unique. Once a trial is concluded, the judge will issue a decision, and that can take a couple of months to issue. As you have an attorney, he or she will know your case best and what likely will be the timeline.
@@myworkerscompguide okay, I asked and they didn’t know yet. But I hope it ends soon. Thanks so much. May the Gods bless you.
@@LewisC-iu3hhHappy to help inform. Best of luck to you.
I’m thinking of going to trial my qme came in my favorite and the company keeps denying me what should I do
It depends on what they are denying. If they are denying the entire claim, then you may need to go to trial to get the claim accepted. If they are denying medical treatment or temporary disability, you may need to go to an Expedited Hearing. You may want to reach out to the I&A Officer at your local WCAB office to go over your options.
i was given after i asked for a step ladder multiple times i fell now i have to have surgery can i sue for neglance along with workerscomp
An injured worker in California cannot generally sue their employer for an injury that occurs at work because of the "exclusive remedy" rule. That means that workers' comp is the exclusive remedy for an injured employee. They cannot generally sue for negligence. There are some exceptions. There is also a potential Serious & Willful violation that could have occurred. I'd recommend reaching out to a local attorney for a consultation on your case.
What About if The Judge is
On the insurance side.
we can do nothing about it
We have a workerscomp system broken in California on what happen when the defense lawyer become a judge is hard when he is on the insurance side
Can you answer that question mr k lusk
In my experience as an attorney and as a former judge, the judges in the system try their best to issue fair decisions. However, in every trial someone is going to win and someone is going lose, and you won't know for sure who the winners and losers are until the decision is issued. At that point, if the decision is not based on the law or the facts, an appeal can be filed. That would be a Petition for Reconsideration, and it has to follow specific guidelines. Based on your question, it sounds like you may have an attorney, so your attorney can handle the Petition for Reconsideration for you if that is what is needed.
Hi,me again. So,I had an MSC meeting last week and still don't know what took place because my lawyer said he'd be there in my place,yet I've yet to hear from him ; it's always very difficult to get ahold of my lawyer. Is it too late for me to get a new attorney? Thanks
You can dismiss your attorney at any time. However, you should speak with your attorney before making a decision as the outcome of the hearing might be good news. As to dismissing your attorney, you may want to watch this video - ruclips.net/video/rjAATo7r5hg/видео.html
@@myworkerscompguide I will watch the video. I guess it's a little frustrating because they had the MSC last week and I still don't know what transpired..I don't know If we're going to trial or what's next,his secretary never responds and I'm not a pesky kinda client, but would like to discover what in the world happened at the MSC..
@@trinepimentel9693 It's a fair question to know what happened at the MSC. Sadly many applicant attorneys handle a lot of files, and communication can suffer.
@@myworkerscompguide ,Thanks, finally got an answer , we are gonna meet in a few days to see if the C&C can be finalized..Appreciate your patience and insight..
@@trinepimentel9693 Best of luck!
I have a hearing in November for permanently total disabled I have 2 IME from the insurance carrier both said I was 100 disabled do you think it looks good for me to be classified 100 permanently disabled when even there own doctors say that I am?
In California IME's are pretty rare. If you are not in California, I just have no insight, as I have no experience with other state's systems. In California, if there were two QME's or AME's that said 100% disabled and 100% industrial, then it's probably a pretty good chance that is the case. However, most insurance companies will still fight it as the exposure is so high. I generally recommend most people talk to an attorney or the I&A Officer at the local WCAB if you are pursuing a 100% disability case.
@@myworkerscompguide I can’t tell you how grateful I am that you answered me. God bless you. And now I have someone with legal experience you telling me this is a good thing. Thank you very much.
My workers comp is going to trial! Damn defendant refuses to accept my case! I wanted to settle since last year but they refused! I was involved in a car accident while working at a car dealership! The defendant even lied and said I was drunk. It’s insane, because I was a passenger, a customer was test driving. The owners are horrible people. All we wanted was like $30,000. 🤦♂️
Sometimes it seems very obvious what should happen, but the other side just digs in their heels and it takes a trial and judge's decision to bring them around. Those are frustrating cases, and they take longer, but eventually most of them come around.
@@myworkerscompguide thank you so much, my attorney said we should most likely win. It’ll just takes several more months to finally end. Like I mentioned before, the judge reprimanded the defense attorney for not settling, when similar cases have settled by this point. It’ll just take more time. Who pays for the settlement? The insurance or my ex employer?
@@LewisC-iu3hh As to who pays the settlement, it's a bit complicated. If the employer had workers' comp insurance, then the insurance company pays it. If the employer was permissibly self-insured, then the third party administrator pays it essentially using the employer's money. If the employer was legally uninsured (the State of California), then State Fund pays it using California's money.
How much is a back surgery worth ball park
There are many variables that go into the value of a back surgery. If an injured worker has a back surgery, it depends on the type of surgery, the outcome, the range of motion afterwards, any other limitations or complications (such as difficulty swallowing with a neck surgery or bowel problems with a low back surgery), etc. That is just as to the permanent partial disability from a completed surgery. There is also value to any exposure for temporary disability if the injured worker is off work due to the surgery. Plus, depending on the type of surgery and the doctor's estimations as to future care, there may be future surgeries that would get factored into a C&R and might greatly increase the value of the settlement. However, if settling with Stipulations and open future medical, the value of the future surgeries would not factor into the settlement at all. In your case, I'd recommend asking your attorney.
What happens if I don’t agree with the settlement they are sending me? What do I do next?
If they are sending to you Stipulations with Request for Award, and there are no errors in the reporting upon which it's based, there's not a lot you can do as a Judge would likely issue an Award the same as the Stips. However, if the settlement they're sending is based on the PTP, you can get a panel QME. If they're sending a C&R, you can demand more money. If there are mistakes in the medical reporting, you can get those corrected to perhaps increase the level of PD. You can reach out to your local Information and Assistance officer at the WCAB to review your options. Or you could go to a MSC to talk to the judge about it (the issue there is that the judge will likely have many cases on calendar at the same time and will be very busy). Or you can reach out to an attorney for a consult.
@@myworkerscompguide my qme based my permanent disability rating at 7%, they are offering me 15k to settle. They said I can negotiate this so I asked for 25k, he then proceeds to tell me that 15k is what they offered. If I don’t agree with this settlement does it go to a judge either way?
@@BiG_SorD If you don't agree to settle, then it will go to a judge for a MSC. If no settlement reached then, it will go to another judge for Trial, and that judge will issue a Findings and Award, which will be similar to Stips, assuming the medical evidence is complete and good. The judge cannot order a C&R.
@@myworkerscompguide I’m not sure if their findings are accurate given the 7% rating but I’m just ready to be done, they said I have until august until the last of the permanent disability runs out, they’re giving me 580$ every two weeks, which isn’t livable. I obviously can’t return to work doing the same kind of work so I’m currently looking for work. I asked my claims adjuster if I’m able to find work and he said I’m good to find work. I just feel that my back is worth more than 15k so hopefully they come back with better pay out.
Am I able to apply for work while this is going on or can they use that against me? Sorry final question.
@@BiG_SorD If the PTP or the panel QME said your condition was permanent and stationary, then yes, you are basically cleared for work. What the doctors often do is declare the injured worker P&S and impose permanent work restrictions such as "no repetitive very heavy lifting." So in that instance you could look for work and do any jobs that don't involve repetitive very heavy lifting as the concern is that you could reinjure or further injure yourself. Also, since you are receiving PDA's, you can receive those at the same time you are working.
Does electrocution causing cardiac arrest death and then surviving after the event qualifies for permanent lifetime benefits and medical. Catastrophic rating.?
The level of the permanent disability award will determine whether there are lifetime benefits paid to the injured worker. That level of PD will depend on the injured worker's condition at the time of P&S status, more so than how the injury occurred. As to lifetime medical, that is the standard settlement when resolving a claim with Stipulations or a Findings and Award. Any future medical treatment needed to cure or relieve the effects of the injury will be covered by insurance. If you are headed to a hearing and looking to get lifetime benefits, and you don't have an attorney, I would strongly recommend either consulting with a local attorney or reaching out to the I&A Officer at the local WCAB office. If you have an attorney, then your questions would best be directed to him or her.
Afternoon
I am 59
Aww 1859
State pay is 845.10
Got laminectomy didn’t work
Got fce got21%
Saw a specialist recommended anterior posterior onL5S1
Right is weeklies back still
Soon I am gonna get sacroiliac injections then another fce
Is this good or bad
Qme told me to bring
ss application when I come in
If I recall correctly, you are not in California, but do have an attorney. In that case, I'd say asking your attorney is your best bet as I just don't know other state workers' comp systems. If you were in California, I might guess that your condition is not yet P&S, so the rating could change depending on what the QME says. But that would really just be a guess. Best of luck.
@@myworkerscompguide thank you
Which state do you do work comp in?
Only California. Each state has a unique system.
No we want a jury trial to let hard working usa citizens decide the case . Not letting some college grad judges and lawyers and surgeons who have never worked in there whole life decide the case of a hard working injured person who was injured buy thug hedge fund owners of production plants that dangerous. Doctors and insurance companies work together to not pay out to injured workers , you know doctor surgeon ,you say you repaired him or her and nothing is wrong now just so insurance can be done paying out to this injured worker, which saves a lot of money and pay less to a doctor that says he or she is ok now .plus doctor becomes repeat business partner with insurance companies. Hes just gotta tell a little lie that he or she is ok now.
In the California workers' comp system there are no jury trials. The only option is a trial before a judge who will decide the case.
My employer won’t hire me back after my doctor released me to work what do I do
It depends on quite a number of factors such as the size of your employer, how long you were off, and what your current work restrictions are. Generally, if the employer kept your position open, and you are released to work with restrictions that the employer can accommodate, then you'll return to work. The general rule is that the employer needs to go through the interactive process with you to determine if they can accommodate the restrictions and if there are any reasonable accommodations that can be made so you can return to work. If you don't return to work for the employer, and there was some permanent disability, then you are generally entitled to the job retraining voucher from the insurance company, and the supplemental state benefits from California.
Hello. So I recently won my Worker's Comp Case in NYC. The judge completely sided with me and said I did prove to him that I have an occupational illness due to my job. The company's insurance carrier is now appealing. What happens now and what are the chances of my decision being reversed?
Congratulations on winning your case. However, I have no familiarity with workers' comp law in New York. I only practice in California, so I have no idea what my happen next on your case. I'd recommend reaching out to a local attorney, or if you can't find one, perhaps your New York state bar association.