Thursday, February 28, 2019

Disability Benefits

If you're injured and unable to work, there are several state, federal, and private benefit programs that may be available to help you.  However, navigating and differentiating these programs can be difficult, especially when you're injured and in pain.  And the fact that many of these very different programs sound nearly identical (e.g. SSDI, SSI, and SDI) only make it harder. My goal here is to provide some of the most common programs, explain broadly the differences between them, and discuss their requirements in general.  Please note that all of these programs are complicated, and you are best to seek legal assistance when determining which programs are available to you.

Social security disability is the name for two similar federal programs: Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). For both of these programs, you must show that you are unable to work for 12 months or more. SSDI also requires that you have paid into the Social Security system, and that your injury occurs while you are still "covered" by that system. If you are approved for SSDI benefits, then you should begin to receive your full retirement amount from around the date of your disability, subject to some certain restrictions. Even if you haven't paid into the Social Security system, you may still be eligible for SSI. SSI requires that you have limited assets, as calculated by the Social Security Administration. If you approved for SSI benefits, you will receive a monthly payment (for 2019, this payment, for an individual, is $771.00).       

State Disability Insurance (SDI) is a state (California) program, run by the state Employment Development Department (EDD) that provides temporary benefits for persons unable to work due to an illness or injury (it also provides some benefits for maternity leave). These benefits typically, but not always last for one year. In order to qualify for SDI, you generally must get certification from your qualified health care provider regarding your diagnoses, recovery time, etc. EDD also runs a similar program for those persons unable to work not because they are injured, but because they can't find a job: unemployment.

Workers' compensation is another program that can provide benefits if you are injured at work.  These benefits can include medical treatment, payments for lost wages, and lump sum payments for future medical care. Some of these benefits can be referred to as total or partial disability, which should not be confused with State Disability Insurance, or Social Security Disability. The workers' compensation system can be difficult to navigate, and legal assistance is recommended.

There are also private long term and short-term disability programs, that you may have enrolled in yourself, or have been enrolled in by your employer. Again, although these programs are disability programs, they are distinct from the government and administrative programs described above. The benefits provided by these programs vary, and you can get more information about any programs that you may be eligible for from the program administrator or your human resources department.

Often, you may be eligible for more than one of these programs. It's not uncommon for someone hurt at work to receive workers' compensation benefits, state disability benefits, and social security benefits. However, these programs can interact with each other in complicated ways, and may even affect the payments that each program pays to you. For this reason, and others, it is always a good idea to seek legal assistance when dealing with these programs.

Thursday, January 10, 2019

The Basics - Workers' Compensation

Workers' Compensation  What is it?

If you get hurt on the job, your employer is required to provide workers’ compensation benefits. To be covered by workers’ compensation, the injury must occur while in the course and scope of performing your job duties, or arise out of the performance of your job duties.

There are two types of injuries; specific or cumulative. 

Specific: A specific injury is an injury that occurred at one instance or occurrence.
            Example: Trip and fall.   

Cumulative: A cumulative injury is an injury that has built up over time. 
            Example: Repetitive motions causing injury, such as carpal tunnel. 

Workers’ compensation covers some, but not all psychological injuries caused by your job. The injury must be at least 51% industrial (meaning the injury was caused by work). 

It’s a Work-Related Injury – What’s Next?

After suffering an injury, you must notify your employer and file a claim. 

To file, you must complete a DWC-1 Form (  Claims are distinguished on occurrence of injuries rather than parts of the body injured or types of injuries. 

The current statute of limitations for filing a claim is 1 year from the date of injury or awareness of injury. It’s important to file a claim to preserve your right to benefits. 

You’ve Filed a Claim – What are the Potential Benefits?

Medical Care 
Your employer pays for medical care for your work-related injury or illness. Medical care is determined by medical treatment guidelines. Medical care that is “reasonably required to cure or relieve” the effects of the injury. 

Initially, your claim may go under review for 90 days. During review of your claim, necessary treatment is authorized up to $10,000. 

Temporary Disability Benefits
If your injury prevents you from doing your usual job while recovering, you may be eligible for Temporary Disability (TD) benefits. TD benefits serve as a partial reimbursement of lost wages due to your injury. 

Loss of wages can occur when your treating doctor indicates you are unable to return to work or the doctor believes you may work but only with restrictions, and your employer cannot accommodate your restrictions. 

Permanent Disability Benefits
Permanent Disability (PD) provides for payments if you don’t completely recover. This occurs when your treating doctor believes you will never recover completely or will be limited in your capacity at work. You may then be entitled to a PD award.
Supplemental Job Displacement Benefit
This benefit will come in the form of a voucher to help pay for educational retraining and/or skill enhancement, at eligible schools. This voucher can be used for tuition, fees, books, or other expenses required by the school. 

In California, you may also be eligible for a one-time cash payment through the Return-to-Work Supplemental Program. 

Death Benefits
This benefit will provide payments to your spouse, children or other financial dependents, if you should die from a work-related injury or illness. 

Generally, a dependent would need to commence proceedings for the collection of death benefits within a year from the death of the injured party.

Still Have Questions?

Please understand this is a brief overview of the workers’ compensation system and does not contain all information and materials necessary to assist you in a worker’s compensation case. Each applicant and case will have a different set of facts and circumstances. 

If you wish to seek legal advice, have any questions or seek further information, please do not hesitate to contact our office online or by phone at (916) 446-4692.

Wednesday, December 26, 2018

Treating Your Work Injury – The Role of a Primary Treating Physician

You got hurt at work. Now what? 
Getting quality medical care is your top priority after suffering an injury or illness. Nothing is more important than one’s health.  However, obtaining medical treatment under the California Workers’ Compensation system can be challenging to say the least.

What can you do?
Pick a great doctor. Sometimes that’s easier said than done. Your Primary Treating Physician (PTP) is the medical professional who will provide care for the relief of your industrial injuries. Their role in the outcome of your case will significantly impact the benefits you receive. 

Your PTP will not only diagnose your condition and address if the injuries were caused by your work, but they will also request approval for your treatment. Your PTP may refer you to other medical specialists as needed for the care and relief of your injuries. Additionally, your PTP will advise the insurance carrier/your employer if and when you need time off of work to recover or if modified duty work is possible. Finally, your PTP will create a medical history that will play heavily into future determinations of any lasting limitations or permanent disability you may have suffered due to your industrial injuries. In short, selecting a good PTP is crucial to not only the care of your injuries, but also your workers’ compensation case in its entirety.

How do you pick a Primary Treating Physician?
Hopefully, you have predesignated your PTP or a qualified medical group. Under the existing California Labor Code ((§§ 4600, 4600.3 (2018)), you may predesignate your PTP if you have followed detailed rules about such a selection (see DWC Form 9783 to make your pre-designation).  However, most of us haven’t taken advantage of this flexibility afforded under the Labor Code, so your PTP selection will generally be limited by your employer’s Medical Provider Network (MPN). 
When your employer/its insurance company has established a MPN, you’ll generally have to choose a doctor in that network. However, after the first 30 days post injury (Cal. Labor Code §§ 4600, 4600.3, 4616.3), you will be able to select a PTP of your own choice within the MPN. 

Need Help?
If you’re having problems with medical issues in your workers' compensation case such as dissatisfaction with the care you've been receiving, disagreement with your doctor’s opinions about your diagnosis or work limitations, or the insurance company is failing to respond to the doctor’s recommended treatment, it would be beneficial to schedule a consult with Mastagni Holstedt.
Mastagni Holstedt can help you navigate the complicated process of changing doctors and fighting for approval of necessary medical care. We may also be able to recommend good PTPs who understand the complexity of the California workers’ compensation system. Contact us today to see how we can help.

Tuesday, November 20, 2018

A New Father’s Right to Job-Protected Leave: Paternity Leave in California

Paternity leave is job-protected leave that a father may be eligible to take to bond with a new child. Paternity leave is similar to maternity leave and is sometimes referred to as bonding or new parent leave. California law provides employees broader rights to take job protected leave than the rights provided by the Federal Family and Medical Leave Act (FMLA). California’s New Parent Leave Act extends the California Family Rights Act (CFRA) to cover more employees. Eligible employees may take up to 12 weeks of job-protected leave to bond with their child within 12 months of the birth of the employee’s child, adoption or foster care placement.  There are some requirements that must be met in order to qualify for new parent leave: (1) the employee/new parent must have worked more than 12 months with the employer prior to taking the leave (does not have to be consecutive); (2) the employee must have at least 1,250 hours of service with the employer during the previous 12 months; and (3) the employer employs at least 20 employees within 75 miles of the employee’s work site.

It is important to note that the right to take job-protected leave is different from the right to paid leave. Paternity leave under CFRA and FMLA is generally unpaid; however, some employees may have vacation time, sick time or other paid time off that will allow them to be compensated by their employer while taking paternity leave. Additionally, employees may be eligible for up to six weeks of Paid Family Leave (PFL) benefits through California’s Employment Development Department. Paternity leave does not have to be taken all at once, but it must be completed within one year of the child’s birth, adoption or foster care placement.  CFRA requires employers to pay for the continuation of the eligible employee’s group health benefits if the employer normally pays for those benefits.

In addition to paternity leave, an employee can take leave to care for their spouse or registered domestic partner with a serious health condition, including pregnancy related complications.  The requirements for taking leave to care for a family member with a serious health condition are: (1) the employer has at least 50 employees within 75 miles of the employee’s work site; (2) the employee taking leave has at least 12 months of service with the employer; and (3) the employee has worked at least 1,250 hours for the employer in the 12 months immediately preceding the start of leave.  A serious health condition is defined in the CFRA as an illness, injury, impairment or physical or mental condition that involves inpatient care in a hospital, hospice, residential care facility or involving continuing treatment or continuing supervision by a health care provider.

In addition to the right to take time off from work to bond with a child or care for a family member with a serious health condition, CFRA provides eligible employees the right to reinstatement.  Eligible employees are entitled to the same or comparable position when they return to work following their leave.  A comparable position means a position that is equivalent or virtually identical to the employee’s former position in terms of pay, benefits, shift, schedule, geographic location and working conditions including privileges, status and involve the same or substantially similar duties and responsibilities.

Additional information on paternity/bonding leave can be found at and If you think your employer is not following the law, it is a good idea to consult with an attorney. Mastagni Holstedt, A.P.C. handles employment law matters including violations of state and federal parental leave laws. Contact us online or by phone at (916) 446-4692 for a free consultation.

Emily Guerra is an associate in the Civil Litigation Department at Mastagni Holstedt, A.P.C. 

Monday, October 29, 2018

Unrepresented vs. Represented in the Panel QME Process

In a workers’ compensation case, it is very likely that an injured worker will be evaluated by a Panel Qualified Medical Examiner (QME).  What is less clear is how the Panel QME becomes selected or appointed in a workers’ compensation case.  The confusion may lie, in part, in that the California Labor Code has two separate routes to the selection or appointment of a Panel QME.  One route is for injured workers not represented by an attorney and the other route is for injured workers represented by an attorney.

When an injured worker is not represented by an attorney, the workers’ compensation claims adjuster may start the process of requesting a Panel QME by sending a letter to the injured worker objecting to a substantive issue in the case.  The same letter is then submitted to the Division of Workers’ Compensation’s Medical Unit for issuance of a Panel QME List comprised of three doctors.  If the injured worker does not participate in this process, the workers’ compensation claims adjuster will select the Panel QME doctor he/she believes may be more advantageous to the employer. 

When an injured worker is represented by an attorney and if the workers’ compensation claims adjuster objects to a substantive issue in the case, written notice must be sent to the attorney for the injured worker.  Once the Panel QME List comprised of three doctors is issued, the attorney for the injured worker will research the list of three doctors and remove/strike the medical doctor that may be less advantageous to the injured worker.  Second, when an injured worker is represented by an attorney, the parties may agree to forgo the Panel QME process and agree to use an Agreed Medical Evaluator (AME).

What happens when an injured worker goes from unrepresented to represented by an attorney and a Panel QME List issued while the injured worker was unrepresented, is the injured worker entitled to a new Panel QME List now that he/she is represented by an attorney?  There is persuasive authority to argue that an injured worker is entitled to request a new Panel QME List when the injured worker has not attended an examination by a Panel QME scheduled while the injured worker was not represented by an attorney. (Nelly Romero v. Costco Wholesale, 72 Cal Comp. Cases 824).   

If you have questions, please contact attorney Eli Moreno-Sanchez at (916) 318-4633.

Wednesday, September 19, 2018

Social Security and Medical Records

A large majority of Social Security Disability claims take several appeals before they are finally successful.  In and around Sacramento, the entire process can take over two years.  However, there are steps you can take throughout this period in order to make your case as strong as possible.

The most important thing to remember is that Social Security Disability claims can only be successful if there is medical evidence to support those claims.  This means that there must be medical records detailing your disabilities that the SSA representative and/or Administrative Law Judge can review. Ideally, there will be records from the date that you claim to have become disabled on, up through the present date.  In order to ensure that there are sufficient medical records documenting your disabilities, you must see your medical providers as regularly as possible.  This is true even if you have been told that there is nothing else that your health professionals can do for you; if there is no further treatment to undergo, continue to see them regularly for checkups.

While medical records are arguably the most important evidence in determining disability, other evidence is also useful.  One particularly useful piece of evidence is called a Residual Functional Capacity form (also called a Medical Source Statement).  This is a form that is filled out by your health professionals, and that gives their opinions on your specific limitations in the way that the Social Security Administration views them.  This form can be found on the Social Security Administration's website.  Keep in mind that not all medical providers feel comfortable filling these forms out, and that's okay.  While they're helpful, they’re not necessary.  If you do get a form filled out, it should be submitted to the Social Security Administration as soon as possible.  Depending on the impairments (specific disabilities) that you are alleging, it may be helpful to get Residual Functional Capacity forms from several different physicians (for example an orthopedic doctor, a pain management specialist, and a psychiatrist). It is also useful to get repeated forms from the same doctor after some time has passed, in order to show if your condition has gotten better, worse, or stayed the same.

A Social Security Disability lawyer can help ensure that you are seeing the correct health care professionals, and that your medical records are being submitted timely to the Social Security Administration. They can also work with your health care providers to have Residual Functional Capacity forms filled out on your behalf. 

If you have questions or are interested in starting the social security application process, please contact attorney Andrew Doriott at (916) 491-4224.

Tuesday, August 14, 2018

Tax and Workers' Compensation

Are workers’ compensation benefits taxable on your Federal and California Income Tax Return? Answer, no, but disclosure is needed in California if workers’ compensation benefits supported your household.
Federal - IRS
(1040 U.S. Individual Income Tax Return)
The Code of Federal Regulations - 26 CFR § 1.104-1(b) excludes from gross income, amounts received under a Workers’ Compensation Act (such as the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C., c. 18), or under a statute in the nature of a Workers’ Compensation Act which provides compensation to employees for personal injuries or sickness incurred in the course of employment.
IRS Publication 525, 2017, page 18, specifically states, “[a]mounts you receive as workers' compensation for an occupational sickness or injury are fully exempt from tax if they are paid under a workers' compensation act or a statute in the nature of a workers' compensation act.”  The exemption does not apply to retirement benefits.  The IRS confirmed this exemption in IRS Publication 907, 2017, page 4, specifying, “[t]he following payments are not taxable....[w]orkers' compensation for an occupational sickness or injury if paid under a workers' compensation act or similar law.”  In conclusion, your workers’ compensation benefits are tax free at the federal level.
California - FTB
(540 California Resident Income Tax Return)
Like your 1040 U.S. Individual Income Tax Return, qualifying workers’ compensating is excluded from gross income on your 540 California Resident Income Tax Return, so long as that compensation was received under a statute in the nature of a Workers’ Compensation Act. Note, if any amount of your workers’ compensation supported your household, you must list the source and amount of workers’ compensation on California Form 3506, Part I, as “Unearned Income and Other Funds Received.”  See California 540, Form & Instructions, 2017, Personal Income Tax Booklet, page 68.  Further, page 69, ibid, explains that workers’ compensation is not “[e]arned [i]ncome.”  In conclusion, your workers’ compensation benefits are tax free in California but need to be disclosed if any portion of it supported your household.
(Please Read)
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If you have questions, please contact attorney Jonathan Char at (916) 491-4215.