California Worker's Compensation - Help For Injured California Workers

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  1. #1
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    Default Work Comp and Third Party Suit

    I asked this question under another thread. Sorry, for the duplication. First time on boards!!!

    I understand IC can be reimbursed through third party suit. So basically the same IC who denies everything will recover through this process?

    I have no problem with the 33% to PI atty., but seems my PI atty. will be helping IC get reimbursed. Does IC help with atty. fees.

    Injured in CA

    Thank you

  2. #2
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    Default Re: Work Comp and Third Party Suit

    I understand IC can be reimbursed through third party suit. So basically the same IC who denies everything will recover through this process?
    If there is a 3rd party/PI claim, the ER/IC isn't not really liable for the benefits you receive...but are paying due to your accident/injury is AOE/COE...due to your job.
    So, when/IF there is a settlement to the PI claim, the ER/IC has the right of subrogation of the benefits THEY provide.
    In WC you are entitled to medical that is determined to be 'medically necessary' and 'reasonable' on an industrial basis...

    If you didn't have WC, all your treatment/wage loss would be out of pocket, or you personal health coverage...which would still have a subrogation right, and no money would be seen UNTIL the PI claim resolves..could be years.

    I have no problem with the 33% to PI atty., but seems my PI atty. will be helping IC get reimbursed. Does IC help with atty. fees
    No...the ER/IC providing the WC benefits is not suing the other party..you are.

    The whole premise here is that you cannot receive benefits for the same occurrance from two IC's at the same time...
    Though the PI claim DOES allow for 'pain and suffering' and 'lost wages', where WC doesn't...so any money you receive for those items, you get to keep !...minus of course the atty fees that will come out of that...and the costs of bringing the suit.
    Your actual 'costs' of bringing the suit against the 3rd party are actually above the 33% fee...

  3. #3
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    Default Re: Work Comp and Third Party Suit

    Thank you for clearing that up.

    I understand actual atty. costs will be more than 33% and take years ( I hope not) I guess I have to wait for wc to be resolved. From what Ive read here this nightmare could also take years.

    Thanks again, there is lots of helpful info in these forums

  4. #4
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    Aug 2008
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    Default Re: Work Comp and Third Party Suit

    So how does the IC get reimbursed? Are they awarded that amount in my settlement or award along with my pain and suffering and lost wages? Something like this:

    Pain and suffering $100
    Future lost wages $100
    Medical Costs $50

    total award $250?

  5. #5
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    Default Re: Work Comp and Third Party Suit

    The WC carrier/IC is remibursed by the 3rd party IC... up to the limits of the coverage provided under the policy...

    Pain and suffering $100
    Future lost wages $100
    Medical Costs $50
    You may be awarded pain and suffering, and any out of pocket medical costs, and/or the benefits provided by the WC carrier... but you won't see money for ''future lost wages'', there isn't any way to make a determination on what wages you might lose...

    Lost wages are for time during your recovery you could not work and earn a living...but the ''wage replacement'' you received from the WC carrier will be deducted from that figure... you can't be compensated for the same ''loss'' by 2 IC's for the same period of time... that's ''double dippind'' for sure...though you can receive the difference between the TTD and your actual wage...

    You are not going to be writing a check to reimburse the WC carrier.. you'll see a net figure you are due at the end of all this mess...don't count on that being significant...
    And, while your 'lost wages' are taxable...just as earnings would be, the pain and suffering is NOT taxable..

  6. #6
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    Default Re: Work Comp and Third Party Suit

    "Through a third-party lawsuit, you can recover all lost wages, all medical costs, future lost wages, and damages for pain and suffering, if you can prove the third party’s
    negligence caused your injury."

    I took that from my attorney's informational booklet posted on their website. Is that not correct? As far as I know that is what my civil lawsuit is for.
    I fell 25' through a roof.......and lived.

  7. #7
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    Default Re: Work Comp and Third Party Suit

    BvIA is pretty much right on with the COMPLICATED third-party issues and how it affects a WC case!

    However, in a civil lawsuit, future wage loss ARE damages, than can be calculated. In a civil suit, Future Wage loss is typically calculated by an Expert Economist. Usually, both the Plaintiff and the Defendant will hire their OWN independent experts fo determine future wage loss, based on earnings at the time of injury, if the Employer provides cost of living adjustments (some do, some don't), estimated loss of future RAISES/PROMOTIONS,/"UPWARDLY MOBILE CAREER TRACK", the value of other forms of compensation such as Pensions, 401 K funds, stocks that the Employer may offer their employees, and so forth. Plaintiff's Expert will have HIS opinions and figures, and NATURALLY, the Defense Expert will have HIS LOWER FIGURES, and "typical" defense-oriented "opinion", of course!

    The goal in civil litigation is to make the plaintiff "whole" again, and damages that a plaintiff is entitled to includes the MONETARY loss suffered by NOT being able to work for the employer, or future employers over their "working life-time"/age of retirement BUT FOR the subject accident/injury.

    As we all are learning, "wage loss" under the WC system is an ENTIRELY different animal, as opposed to "Loss of Future Earnings" in a civil lawsuit, and are calculated/estimated by VERY different formulas.

    Depending on the severity of the injury,and the age of the plaintiff at the time of the injury, Future Wage Loss in a civil award or settlement can be SIGNIFICANT. It is my understanding that WC is ONLY entitled to reimbursement for THEIR portion that they actually paid in PERMANENT DISABILITY BENEFITS, which would ALSO be "apportioned" as to OTHER factors which have contributed to the PD . TTD benefits would similarly be apportioned between WC and the third-party carrier, and the WC carrier entitled to be reimbursement after the admustment for apportionment.

    So, between the TTD benefits (2/3rds of AWW, subject to a MAX CAP) and PD rating after adjustment for apportionment as a result of the third party liability injuries, and given that the PD rating schedule under the AMA5th is PALTRY, the amount that WC would be entitled to be reimbursed for would REDUCED. When one then considers the RESULTING number of overall weeks and total MONEY/BENEFITS that the PD rating translates to, and for which the WC IC is to be reimbursed by the third party lawsuit recovery, it can PALE in comparison to the Future Wage Loss under the CIVIL portion of damages! The plaintiff would ALSO be entitled to the DIFFERENCE in TTD benefits because oof the 2/3rd TTD payments, and lost wages OUTSIDE of the cap. Those can NOT be reimbursed to the WC carrier.

    There are OTHER damages in a civil laswuit as well, that the WC carrier might NOT be entitled to rembursement. For instance, in a civil suit, there is also "loss of consortium" with the plaintiff's spouse/partner. While under the WC portion of the claim, if the IW has not CLAIMED "sexual dysfunction", HAS claimed sexual dysfunction, but was DENIED, WC can't TOUCH any money that the plaintiff in a civil lawsuit might RECOVER!

    THe bottom line is, an IW better have ONE, GOOD and AGGRESSIVE Personal Injury lawyer that is handling the IW's third-party lawsuit, who can ferret out ALL the issues that "overlap" and is to be reimbursed to the WC carrier, and issues/damages TOTALLY unrelated to the WC case/injuries that are NOT reimburseable, for which the IW/Plaintiff can recover in DAMAGES, and TRULY make his client "whole again", monetarily speaking!

    Something that the WC ALONE couldn't and DOESN'T even come CLOSE to!

    Where is Roof's Wife! This third-party liability issues are right up her alley! I am sure she can provide additional clarification!
    Last edited by Charles Stevens; 08-08-2008 at 03:17 PM.

  8. #8
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    Default Re: Work Comp and Third Party Suit

    Charles you're doing fine with out me....... RW

    Regarding the economist, it really depends upon the extent of the injury and the permanent loss of potential earned income vs future wage loss. Most 3rd party insurers calculate it themselves based on documentation obtained by authorization directly from the claimant's employer.

    Now in this case the claimant/IW is not entitled to double dip meaning that the 3rd party carrier will also request supporting docs from the WC IC to verify the total amount paid as supplemental income [ie TD or PD]

    As Charles has pointed out the 3rd party carrier is obligated for the negligence of their insured to make the injured party whole up to the policy limits, if applicable.

    the 3rd party carrier not only must take into account "Actual Wage Loss" but also future wage loss should the claimant NOT BE ABLE to return to their previous type of work, then they must determine what type of job the claimant can do and adjust accordingly. Future wage loss is always a "WHAT IF" and there are a lot of factors that play into it.

    Charles is right on again, consortium is also considered, not only for the claimant but also the spouse -- your spouse could have a separate cause of action.........

    Medical treatment is not governed by ACOEM/WC UR rules in a 3rd party lawsuit, it is based on causative factors, ie was the forces involved sufficient to have caused the alleged injury; was the treatment rendered medically warranted and was the cost of that treatment within reasonableness to others in the same field. When a dispute regarding the alleged injury and the treatment occurs a 3rd party carrier is not qualified to determine reasonableness of the medical treatment or the causative nature of the injury ----they may send the claimant to an Independent Medical Exam with a review of the medical records by a physician in the same specialty as the claimants treating physician, they may hire out a Biomechanical Engineer to determine the physical forces that would be inflicted and what injury would be reasonable to expect or they may just send out the records alone.

    3rd party carriers are regulated by the Dept of Insurance and therefore their action must conform to the Fair Claim Practices Standards. Once the matter goes into litigation Fair Claim Practices no longer apply.....
    the court has jurisdiction......

    The 3rd party carrier must be concerned with all liens and they will also haggle with the others to reduce costs so that they can resolve the claim in full without leaving their insured open to additional exposure.

    You may also have multiple parties to the suit. for example you fell through a sky light while on the job. The question then becomes was the opening properly secured? if not, who was responsible----potential exposure, the sky light was covered up but the electrician on the roof moved the cover so they could have access but forgot to put it back--again potential exposure, The owner of the building
    vicarious liability --- potential exposure the list could go on and on

    Should the list go on and you have multiple defendants in a 3rd party suit each defendant may bear a portion of the liability....so it can and most often does get very complicated........All parties to the action if negligence is proven often diffy's up the liability. Bigger piece of the pie to be drawn from......

    The claimant must prove negligence on the part of the insured for which the claim is made, ie rules of the road violation, safety standard violations, vicarious liability [ie did the vendor know of the problem and did nothing to rectify the situation] and I must also mention did the claimant themselves contribute to the incident by their own negligence ie: did the claimant show up intoxicated, or under the influence, were they negligent in their duties [ie not attached to a safety strap per OSHA requirements when the roof pitch was a certain degree] etc. etc.......

    Now I have really muddied the waters..........and may have given more than you need, just know that 3rd party carriers themselves take the position that they owe what they owe, nothing more and nothing less and I can assure you that if someone else contributed they themselves will file a counter claim and bring that party into the whole picture. Those magic words, liability and subrogation.

    RW......

  9. #9
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    Apr 2008
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    Default Re: Work Comp and Third Party Suit

    What would happen in a case where the medical bills were more then the policy limits of the third party?

  10. #10
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    Default Re: Work Comp and Third Party Suit

    What would happen in a case where the medical bills were more then the policy limits of the third party?
    Won't have any bearing on your pocket book...this is a work related injury...auto or otherwise, and the claim has been accepted by the ER/IC...
    Medical treatment/benefits are part of the WC statutes to be provided by your ER/IC...you will continue to receive medical treatment, paid for by the ER/IC until your claim resolves or life..

    If the WC carrier is unable to recover the entire amount of medical provided...due to policy limitations of the 3rd party...so be it. That is no concern of yours.

    I will add here though... PI attorneys have little to NO concern for a WC Applicatant Atty...when the fee structure comes in...so in fairness to your AA try to keep him/her in the loop...the AA doesn't get any of your civil/3rd party money, but somehow all this gets wrapped up in one deal and the AA is left hanging...

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