These videos feature Jeremy Lusk, a certified specialist in workers' compensation by the State Bar of California. After serving as a workers' compensation judge at the WCAB, and seeing countless injured workers without an attorney, he started this channel to record videos to help educate and inform injured workers without attorneys so they can make more informed decisions. Mr. Lusk represents injured workers from his office in Fresno, along with his partner Spencer Gong. Their office, Law Offices of Lusk & Gong, Inc., provides representation to injured workers. However, no attorney/client relationship is created or implied through these videos. For a consultation on your case, you are free to contact the office at info@luskgong.com
My accident occurred in 2021, and my attorney has not been providing me with information. I believe I should have been informed, yet I had to collect my own medical records and deliver them to his office. Recently, he mentioned that I was vested in $10,281.52, but my case is valued between $18,000 to $25,000. I requested a clearer explanation over the phone, but he dismissed it as self-explanatory. Since the case began, I've only spoken to my attorney about four times. Now, I recently fired him. three weeks ago. I have a settlement discussion scheduled for September 20th, and I'm anxious because he has placed a lien on my case, requesting 20% plus expenses. At this point, I am considering representing myself. I am still in pain, and the insurance company has closed the case, citing that I have reached my medical treatment limit. I have a hernia, neck, and shoulder issues due to the injury. My Former lawyer is pursuing compensation for the neck and back injuries only, and I was rated at 4% for neck and back and 1.5% for the shoulder. However, I am still experiencing problems and have not been able to work full-time since the accident. I am uncertain about what to do next..
That happens often. The primary treating doctor will release the injured worker to light duty, and the worker can return to light duty work at the employer before the case settles. Or the treating doctor may release the injured worker to work with permanent work restrictions at MMI status, and the worker can return to work before the case settles. Or the treating doctor may release the injured worker at MMI status with no restrictions, and the worker can return to work before settling the case. Each case is unique, but returning to work before settling is common.
I agreed to a settlement number on Aug 16. I’m still waiting for my documents to be sent over so I can sign them. I have still been getting paid weekly from my job. Do you know how long it takes for me to receive the documents so I can sign them? Going on 4/5 weeks now.
There is no law that covers how quickly the settlement documents must be drafted and circulated. Usually the defense moves quickly so the injured worker doesn't change his or her mind.
Employer alleging they offered me work after TTD ended but it was the same job, same location, nothing in writing as to the specifics and my restriction was too much, “no lifting over 30 pounds”, which I disagreed with the primary dr (in the WC network and was forced to wait a month to see this dr again). I agree the system does not help injured workers and when I asked for accommodations based on former requests, employer is saying “workers comp and bank accommodation are 2 separate events”. My claim is they never offered me modified work. I told my law firm to get me retro TTD and a voucher. They said I must wait for employer to offer jobs. But in the meantime, I suffer so I will file for disability benefits because they just are dragging this out. I feel this is their tactic to make the settlement lower but I documented everything to protect my interests because I really don’t know if my WC atty knows employment law.
I can only answer questions as to how the system works in general. For an assessment of your case you would need to reach out to an attorney for a consultation to go over your specific facts. Your case may not involve any wrongdoing by the employer, or there could be issues of discrimination and wrongful termination, as well as issues surrounding TD or light duty. Those can only be addressed in a consultation.
It can get complicated with regards to how temporary disability is calculated (injury at the job that pays more or less), and work restrictions imposed, and time off. I'd recommend talking to either a local attorney or the I&A Officer at your local WCAB office with regards to your specific case.
I had a work injury about four years ago. My lawyer doesn’t like to respond to any of my text messages emails or calls so I fired him and a week later I found out we’re going to court In a month for settlement discussion and I’m going to have to represent myself and I’m shit nervous 😥
You can always speak to the I&A Officer at your local WCAB office to get answers to questions. And even during the MSC you can tell the judge that you want to discuss issues with I&A.
@@myworkerscompguide my former lawyer, said that I’m vested $10,256.34 dollars already what does that mean?But my case is worth $18,000-$25,000 at least
It means a case was opened at the WCAB. Either an Application for Adjudication was filed (perhaps if you have an attorney, he or she did this with initial paperwork you signed), or if you signed settlement documents and those were filed for approval. It's basically just the court case number.
My C&R paperwork got filled on august 14,2024 but my attorney is saying the judge has 45 days to approve the C&R… is this accurate? I heard you say the judge only has 15 days I’m in California
The general rule is that judges do have a longer time period to work on "tasks." That's what EAMS calls any incoming document for a judge. And if a judge hasn't acted within 45 days then the presiding judge is supposed to step in. But the main rule is, "A WCJ to whom a compromise and release or stipulations with request for award is assigned should initiate appropriate action within fifteen 15 days of its assignment. Pursuant to WCAB Rule 10346(c), if a compromise and release or stipulations with request for award has not been approved, disapproved, or noticed for trial on the issue of adequacy and other disputed issues within 45 days after filing, the file shall be returned to the PWCJ for review."
I couldn't say. It sounds like a real problem if the QME said that. But you would have to speak to the I&A Officer at your local WCAB about your options, or talk to a local attorney for a consultation.
Worker’s Comp is not for the benefit of the worker. It benefits the employer by paying as little for the least amount of time possible. It’s an insurance policy taken out and paid for by the employer. It’s my understanding that if you opt to take Worker’s Comp., you cannot sue your employer for damages due to an injury you receive at work because, they in good faith, are giving you the benefit of using their insurance. Please correct me if I’m wrong.
In California there is no choice - an employee injured while working can get workers' comp benefits. That employee generally cannot sue their employer. It's the exclusive remedy rule. Of course there are exceptions to every rule, but that's the general rule. The advantage to the injured worker is that they immediately get temporary disability benefits and have medical treatment paid for, and and there is no requirement to go through a lawsuit first and wait a couple of years for any payment. Most injured workers could not wait a couple of years for a lawsuit to progress to either settlement or trial. It's in the injured worker's interest to get immediate payments instead.
My TDD ended back in end of May. I haven’t received any money 💰. So I applied for EDD because insurance wasn’t paying me and it is challenging to get disability via certification. My employer did not offer me a job so this is why I applied for EDD. It’s such a confusing system. I will let EDD know when I have my interview appointment. I don’t know why the information is hidden and injured workers have to figure this on their own and my lawyer didn’t help me
My doctor gave me a DRE Cat II: Intermittent Radiculopathy consistent with MRI Finding for a lumbar facet arthropathy & spinal stenosis, and pain. 5%wpi for lumbar spine and 2%wpi for pain. Isn't that kind of a low rating?
Every case is different. I cannot say if that is low for your case or not. I can say that a rating like that is quite common for a low back injury with no surgery.
I have a question. My mri reports are lost and i tried closing my case but its been a year and the insurance finally wants to give me an mri afer 1 year. What should i do
Hello Mr. Lusk question pls I signed papers for C&R and before signing attorney never told me that I had to pay back to EDD. I got a letter from WCAB it doesn’t say I owe anything back. But attorney is now telling me I owe them 4309.57 can that be possible?
Every case is so different that I couldn't say. If it is your attorney saying you owe EDD, then you would need to ask him or her why. If it is the defense attorney saying it, you likely want to talk to either the I&A officer or a local attorney for a consult.
My TTD ended June 2024. My employer did not engage in the Interactive Process and so I have been beyond indigent. Not even a penny to my name now and I asked my law firm if insurance company must pay my back retro TTD. It’s honestly ridiculous how they treat injured workers forcing them to just work. They do not communicate and it’s very obvious they’re risking my health all to save money. I even have been trying to pay to see a dr out of pocket to get certified for EDD but I don’t know if this affects me legally in CA. Bottom line is the insurance does not want to pay for my income losses and my lawyer needs to stand up and fight for me. Thank you for the videos and I will keep watching! 🎉🎉🎉❤❤
I have a question I was receiving Workmen’s Comp. I two-year is up so they told me I have to apply for state disability how do I Apply oh where do I apply
Generally, yes. For example, if an injured worker has a staph infection after an accepted knee injury and authorized surgery, then the injured worker would be entitled to TD while he or she recovers from the staph infection as well. The injury at work didn't cause the staph infection, but it was a consequence of the industrial injury.
I don't know that I've run across that question before. My gut says that for treatment the answer would likely be 'no.' For a QME, the answer might be 'maybe' but I think I'd still lean towards 'no.' But I'd have to research it to see.
That happens. I've had clients with a back injury in workers' comp take a little time off work due to a knee injury while snow skiing and collect EDD, and they file a lien. Or cases with a 2023 date of injury, and EDD notices they paid benefits back in 2005, so they file a lien even though it's completely unrelated. I've seen cases in which someone applied for EDD benefits and received them using a stolen SSN, and then a lien is filed in a case even though no benefits were ever paid to the actual injured worker. Usually it just needs to get cleared up with the EDD rep and the lien is withdrawn.
I have a question? I keep seeing that 99% of cases settle. I’m on 9 months of bring off work. Claim excepted, they have payed all PT, all chiropractic and recently an injection. I get paid every 2 weeks, but didn’t in the beginning for 3 months. Why cases do they not even offer a settlement, ? My attorney has barely talked about hypotheticals with me and got irritated that I ask him questions? Almost like he was taking it personally and was not compassionate at all. He took on my case 7 months ago. Do you see most cases settling or do I just see that in every RU-vid video? Something seems odd and is it normal for your job to never once reach out to you and ask you anything after 9 months?! Yet I’m still an employee? Thanks, hope that made sense. I’m not in California.
@@TMH792 I can really only speak to California, as that is the only system with which I am familiar. As to your case, you would have to ask your attorney as he or she knows your case best. In California, and in general, I suspect the number of settled cases is around 99%. However, cases until both parties agree to terms, and that often occurs after active treatment slows down, and after a QME writes a ratable report, and after the parties agree on all the terms - and that may take six months, or two years, or five years. There is no standard time for when a case settles. I'd guess the average litigated claim in California settles at around the two year mark. Keep in mind that a "case" doesn't really go to trial, but rather a "dispute" goes to trial. So there has to be a dispute over the PD rating, or the authorization of medical treatment, or the denial of a body part. That dispute may go to trial, but even then it will only do so after both sides have completed discovery on that dispute.
@@myworkerscompguide Thank you!! I have never heard any of this from my attorney. I did ask when will they offer a settlement and he said “we are way far from that right now.” He got frustrated when I asked him, too. Appreciate you writing this out! Thanks for all the info. Oregon may be different. I’m also wondering if he’s not on top of it. I call and get things sent to him all the time and he misses my emails and have to go over it all again on the phone with me. I know he’s busy, but he’s slowly becoming less engaged. He was really on top of things in the beginning. Thanks again! Really appreciate you writing this out.
My employer closed a month after my injury last year. I had gone to a QME earlier this year and he stated I'm not at MMI and gave a list of suggestions (physical therapy, neurology, etc) but my PTP never requested any of the QME's suggestions. My PTP put my on PnS today. Will I still lose my benefits/payments even though I have no company to go back to, and the PTP and QME disagree? Can I apply for state disability until I find a job?
I can't speak to your case individually. I can only say how the system works in general. Many insurance companies will cut off temporary disability once the PTP says "P&S" and then the injured worker will go back to the QME for a re-exam to see if the QME agrees. If the QME agrees on P&S status, then the denial of TD will usually stand. If the QME says the injured worker is not P&S, then insurance might pick up TD, or it might need to go to a hearing over the dispute. Injured workers can generally apply for EDD benefits, but I always say to make sure that they fully explain any benefits or wages they are getting to ensure there are no duplication of benefits.
The injured worker in California can take a QME report to a treating physician and give it to him or her. There is no prohibition against that. The worker cannot give reports to the QME, but can give reports to a PTP.
It is true that work comp judges do not like to trial cases? And they encourage the parties to reach an agreement. Why that would be? @90 % of cases settle before trial and then 90% settle in the day of trial? What is the average percentage of cases going to trial?
It is not that judges do not like to have a trial, but they are a lot of work. It requires review of the PTCS with the parties, revising and amending that through discussion, the filing and review of exhibits, ensuring everything is in EAMS correctly, calling a court reporter, creation of a transcript, going on the record, the keeping track of deadlines, work for the court reporter, the possibility that a small issue was missed during trial which may necessitate the rescinding of the submission and another hearing, and then the losing party may appeal. It is much faster and easier and avoids conflicts if the parties can work out a negotiation. The percentage of cases in workers' comp that have to go to trial is very, very small.
@@myworkerscompguide it's seems that all are saying the same, and it makes sense. I think it's clear and visible when there is an injury and that medical records are showing the truth. It's a case of insanity for an insurance company to kill the judges time when they know that insurance and their attorneys are pulling the dog from the tail.
@@avarora It's nice when the handwriting is on the wall and everyone agrees to the terms. But sometimes insurance companies dig in until the very end, even though everyone seems to know what the outcome will be.
@@avarora Vocational experts can be used to address ability to return to work and combat the PDRS. But it can be a very complicated area of the law, and an injured worker who was considering trying to hire a vocational expert to address the level of disability would really be best served by being represented by experienced counsel. That said, I'll see if I can do a video on that general subject soon.
I couldn't say why it is happening in your case. There are many reasons for a potential QME re-exam, including the injured worker not being P&S at the first exam, or the injured worker had surgery after the first exam, and a change in condition, or new records/conditions that need to be discussed, to name a few.
If a qme report is very accurate and follows all medical reports and gives a rating based on medical evidence can the insurance try to trash that Qme and ask the judge for another evaluation with another doctor? Ptp and qme are on the same opinion and all medical reports are correctly reviewd.
Yes. Insurance companies will often fight unfavorable QME reports by trying to get additional or replacement medical opinions. However, it can be difficult to get a QME report thrown out and a new QME assigned and that generally would require a trial and evidentiary finding by the judge.
@@myworkerscompguide in unrepresented cases, it can be even more difficult for insurance to undermine a state assigned doctor( qme), then the whole purpose of a qme / neutral doctor is invalidated, when the qme reviewed and based the decision on ptp medical records.
If you want to get the opinion of an vocational expert, does that happens before filing for an MSC? If the insurance is still not accepting your disability and you want to retain the services of a vocational expert when that is the best time to do it? How can an unrepresented person get vocational expert testimony?
When a DOR is filed for a MSC, there should be a dispute that is ready to go to trial and the party filing the DOR can list the efforts they made to resolve the dispute. If an injured worker wants a vocational expert, that would be obtained before filing a DOR on the level of PD because discovery would not be complete yet. It can be very difficult to prove a 100% case as the defense will often fight that to the end. If you are trying to prove 100% PD and do not have an attorney, I'd strongly recommend reaching out to your local I&A Officer at the WCAB for answers, or reach out to a local attorney for a consultation.
@@myworkerscompguide it's seems to be a very unfair system. Why would a judge would not find 100% total disability when Qme says 100%, when ptp says the same, when the vocation expert says 100%, and all the facts are showing that the person is indeed disabled, and the insurance agreed to pay inhomecare services to a third party to care for the injured worker. I would assume that any normal judge seeing the medical condition and all supporting evidence from all doctors, multiple qme s from different area of expertise,, and vocational expert, and the need of mobility assistance and handicap transport, severe disability prescription medications and ald services to decide that that poor human can ever be employed. Seems unbelievable that any judge can humiliate and condem to slow death such an Injured worker.
I know somebody that the Qme doctor found to be unable to participate in the open labour market on Qme report and even the rating is 100 percent. Does that mean that person will get payment for life at 66%. Is a vocational expert needed to agree on the same statement?
A vocational expert is not required to get 100%. The injured worker will get permanent disability for life at the temporary disability rate if either the judge awards 100% or the insurance company agrees to it. Getting the QME to say 100% is just one step.
In the situation that you have a bad injury, and the Qme doctor says you can not work in labour market, and the doctor maintains their decission even after being deposed, that means a total disability? Who and what law regulates the individual capacity to participate in the open labour market? Does vocational experts rule on that or there is a federal or state law that has specific conditions which prevent a person to be in the open labour market?how does a qme doctor reaches the conclusion of ( unable to participate in the open labour market)?
Generally yes. If the QME says the applicant is precluded from participating in the open labor market, that generally means the injured worker is 100% totally disabled. It generally comes down to all of the evidence, from the PTP to the QME to vocational experts and the applicant's testimony. There are some conditions that are presumed to be 100% disabled in California, but otherwise it depends on the facts of the case. Every case is unique.
@@myworkerscompguide is there any law that determines the individual inability to work, In SSA they say if a person loses a day or two each month because of their medical condition , is considered disability. Does the same applies to worker compensation? On what basis the Qme determines this. I assume as a judge you may have seen this in at least few cases
@@avarora There is no strict definition such as losing two days per month. With QME's it generally comes down to the QME's opinion based on his or her training, experience, and expertise. There are some statutory presumptions that someone is 100%, but most doctors will impose permanent work restrictions based on each individual case.
A doctor, either the primary treating physician or the QME, will write a report finding the injured worker to be permanent and stationary (P&S) which is essentially the same as Maximal Medical Improvement (MMI).
Well I've had three surgeries on my right shoulder I have another tear, the qme doctor tell me that the treating doctor should have given me a shoulder replacement the second or third surgery so he set up an appointment with the treating physician the treaty physician had a negative remark to make got mad cuz I told her what t qme doctor said made a negative comment and brush me out the office she did order physical therapy for my right shoulder and neck I never received authorization or appointments I'm still in severe pain it's a lot over 5 years I've been going through this
My pretty physician has me as permanent stationary this case has been going on over 5 years frustrating as an understatement when you still suffering and does a qme doctor restrictions out rules a treating physician restrictions when your injury already@@myworkerscompguide
In the middle of DOR hearing process, can a presiding Judge change an assigned Judge without any supporting document on EAMS (per I&A) and any notice to the parties with reason? I already had two hearings with the previous judge who is still serving his duty at my current venue.
That happens regularly. The only time that I'm aware of that a case must return to the same judge (if possible) is once trial has started and the matter has gone on the record. Otherwise a case can go through multiple Status Conference or MSC judges. Quite common.
Have you given anymore thought to explaining CA Labor code 5100-5106? Currently discussing a possible settlement with the insurance company and trying to learn if the WCAB does have the right to alter a C&R after the injured party and insurance company reach an agrreement.
I need to do a video on that. But a judge cannot alter settlement documents that have been submitted unless all parties agree to the change. Conceivably if the judge had all the parties on the phone, and all parties agreed to a higher settlement amount, the judge could write that new amount on the documents and note who/when/where agreed. But even that is rare because the judge will want the parties to write the change, and to note that the documents are now a (for example) "First Amended C&R," and to have the parties initial or sign the change. And a judge cannot just change terms or add language because the judge feels it is needed. From the WCAB Policy & Procedure Manual, "A WCJ may refuse to approve a compromise and release agreement unless it is amended in a manner suggested by the WCJ; however, the WCJ cannot rewrite the agreement without the parties' consent. (See Burbank Studios v. WCAB (Yount) (1982) 47 Cal. Comp. Cases 832, at 836.)"
@@myworkerscompguide Thank you for your reply. My confusion comes from CA Labor code 5101 - The WCAB may recalculate the lump sum to include (lesson) Net Present Value (NPV) or Present Worth of 3% per (future) year; and CA Labor code 5102 - The WCAB may order the lump sum be paid directly to the employee OR placed in a Trust OR the State Compensation Insurance Fund, to be managed by a Trustee. I don't doubt I'm misunderstanding these codes, and will be looking forward to your future videos and expertise. Thank you.
@@inertmission4427 Those statutes don't apply to settlements. They apply to commutations. That's the "lump sum" that the statutes talk about - a commutation. That would generally take place either after a Findings and Award issues, or after Stipulations with Request for Award is approved, and the injured worker files a Petition for Commutation. A commutation often does take the present cash value into effect.
In easy to understand language - the general rule is that PD ratings for different body parts get combined rather than added together. However, a court case (Kite) said that in the proper case, and if supported by the proper analysis from the doctor, the ratings can be added together. That was because the doctor was able to provide analysis that the synergist effect of the disabilities was more significant than the combined values chart would provide, and that the ratings should be added together to provide the most accurate rating for the injured worker. It's not seen often.
It’s been 5 years since I was injured apparently they finally offered to settle. But after my attorney takes his cut I’ll end up with 40k that’s like 8k a year that seems seriously low. Mind you I wasn’t at fault at all whatsoever for my neck injury. Car ran into the back of my work truck while I was on break in the passenger seat.
Workers' comp settlements are often very low, especially if future medical care is kept open and if the insurance company has already advanced all of the permanent disability before settling. I had a case years ago where the injured worker was very upset because he was getting "nothing" in the settlement, but the insurance company had paid him close to $100,000 in temporary disability, had paid for close to $100,000 in medical bills, and had already advanced him many tens of thousands of dollars in PDA's. But we were keeping medical care open (a benefit with no dollar limit) and there was no remaining PD, so he felt like he was getting nothing. But that was because much of it was already paid out and the medical wasn't paid directly to him. As you have an attorney, you would have to ask him or her about your settlement as your attorney knows your case best.
Today I got let go after returning to work at limited duty with doctor ordered 6 hr work day instead of 8hr while recovering from work back injury that led to back surgery among other treatments prior to the surgery . after 3 months home Returned and worked 3 months when manager said we cannot accommodate you not Being able to do the job position duties 100% anymore. I was still getting WC payments for the lost weekly time since returning.Can I get back on weekly full benefits again until I'm fully healed ,released ,and able to look and get new job/work? (commercial electricial\ maint. worker.} thanks
Eesh. When I refer to an injury in workers' comp, that's commonly known as one accident or mishap or something going wrong (like one car accident, or one fall down the stairs). There may be multiple body parts injured (broken leg, neck sprain, headaches, broken collar bone), but it was just one injury that occurred.
In the California system the injured worker is entitled to any reasonable and necessary medical treatment to cure or relieve the effects of the industrial injury. That basically means the injured worker gets medical treatment for that injury for life. Temporary total disability is generally only paid when the injured worker is off work, and unable to work, due to the injury. So the worker may heal enough to return to light duty work and keep treating, and then heal enough to return to full duty and still keep treating. The treatment frequency and intensity would likely drop, but doctor visits can continue. Also, temporary disability can stop if the two year cap is reached, or if the injured worker is released to light duty and the employer can accommodate the restrictions.
I've never heard that before, and my gut says 'no' that's not the case. A judge swears to faithfully perform his or her duties, and to fairly hear disputes and issue decisions. Perjury comes from a sworn statement under oath that the person knows is not true, such as deposition testimony or trial testimony. To apply that to a judge's Minutes of Hearing or Orders does not sound accurate to me. Though, I've never researched the issue.
Judge, please help me and guide me what to do I had an injury in my knee because I trip and fall at work while taking care of the patient, and due to some financial strain I have to move from CA Los Angeles to Oklahoma where my son is so we can save money. but now I am having hard time finding a doctor that will accept me in Oklahoma most doctor in google search are in texas which is a challenge because its at least 2 hours drive and I can't drine , or I'm afraid to drive because my knee stift and lacked at times and when it happened its really painful and debilitating me, so no to driving to avoid accident. please direct me to what to do in my situation, Thank you on advance
