Workers’ Comp and 100% Disability Benefits: San Mateo County Transit District

• Nov 21, 2024
• Blog
• Michael Burgis & Associates, P.C

In the video below, attorney Michael Burgis discusses important aspects of 100% disability claims in California Workers’ Compensation. If you’re an injured worker or an attorney representing one, understanding how to calculate a 100% disability award is essential. A small mistake in determining the start date for permanent disability can lead to significant financial differences in benefits.

Michael breaks down the differences between 99% and 100% disability cases, explaining how temporary and permanent disability payments work. He highlights a recent pivotal case, San Mateo County Transit District v. WCAB, which clarifies when permanent disability should start and the implications for interest and cost of living adjustments.

For further assistance with your 100% disability benefits case, contact Michael Burgis & Associates, where we are dedicated to helping injured workers in California.

Transcript:

Are you an injured worker’s attorney arguing for 100% disability for your client? Or are you an injured worker arguing 100% disability? It’s very important that you know exactly how to calculate 100% disability award, as a very small mistake on the start date of the PD could be the difference of hundreds-of-thousands of dollars of benefits.

There’s a recent case law that came down that sheds light. In this video, I’m going to explain when it should start and how significant it is with interest and cost of living adjustment.

Hi, my name is Michael Burgis. I’m the managing attorney of Michael Burgis & Associates. I’m a legal certified specialist in California Workers’ Compensation and I’m a trial attorney.

How Do You Calculate 100% Workers’ Comp Disability Claims

I get a lot of calls regarding 100% worker’s comp disability claims and particularly how you calculate these. There’s a great new case that just came down called San Mateo County Transit District v. WCAB that sheds light. In this video, I’m going to break it all down.

100% Disability vs. 99% Disability and Under

0% to 69% Disability

First, let me go over the difference between a 99% case and under, and 100% case, because it’s important on the foundation to understand the difference between the two. In a case between 0 and 69%, your compensation is paid out in permanent disability in finite weeks. The greater the disability, the greater the duration of those payments. But when that last payment of permanent disability ends, there is no more money.

70% to 99% Disability

Now, if you’re between 70 to 99%, again, the greater the disability, the longer the duration of those payments. But when they furnish the last permanent disability payment, when you’re above 70, under 99, you get a life pension.

Think of it as a small stipend that gradually increases over time with something called cost of living adjustment. Basically, to take into consideration interest and inflation, really. But the case law establishes that interest starts to raise and that cost of living starts to go up when they start furnishing that life pension, which is years down the line.

100% Disability

Now, in a 100% case, it is a massive difference. It is not the permanent disability rate, which is typically $290. It’s the temporary disability rate for life, which is two thirds of an injured worker’s salary, subject to a max and a min for the rest of their life.

But when does the permanent disability kick in? When does that interest start to accrue? These are big, big differences and can equate to hundreds of thousands of dollars difference to an injured worker.

Litigating a 100% Case

So, if you’re an injured worker attorney and you’re litigating a 100% case, there are huge pitfalls here. And this is one of the many pitfalls. But this is dangerous. This is where you can easily get caught up in malpractice because of a simple mathematical error in the calculation, which there’s, again, now binding case law that sheds light on. Ultimately, typically for cases that are not 100%, the permanent disability starts when an injured worker reaches their point of what’s called maximum medical improvement, or when they’re permanent and stationary. That means with or without treatment over the next year, they’re not going to get any better, right?

Treatment Phase

Now, also during a treatment phase, there’s temporary disability. So if an injured worker can’t work, they can get temporary disability. But on these catastrophic cases that are 100% disability cases, typically you see a catastrophic injury. You see a long period of temporary disability. But that temporary disability is generally capped at 104 weeks. So after 104 weeks, they don’t pay any more temporary disability and they don’t have to start paying permanent disability because we don’t know if the injured worker is going to have a full recovery or not.

So then there is a period of time where there’s really no money until there are medical reports stating that they’re permanent and stationary and addressing that permanent disability. And again, in a case that’s 99% or below, the date they reach that point of maximum medical improvement is when that disability starts.

Last Payment of Temporary Disability

However, in a 100% disability case, this case now says the permanent disability starts not when they’re at the point of max medical improvement. It’s when the last payment of temporary disability was made.

So let me just put this into context for a second. You have a catastrophic injury. You’re temporarily disabled for more than two years, multiple surgeries. They stop paying you at 104 weeks. And then there is a big gap. And then finally there’s medical evidence indicating you’re permanent and stationary years later. Ultimately, if that start of the permanent disability date is down the road, that interest starts later.

Retroactive Award

This case says no, you go back to the last date of temporary disability. In this case, this can be five years, ten years earlier. That means that that permanent disability rate, which is two thirds of their salary, starts at a much earlier date and likely a massive retroactive award is going to be needed for that. But also that COLA, that cost of living adjustment, starts that January 1st after the start of the permanent disability payments.

San Mateo County Transit District v WCAB

So again, this case is San Mateo County Transit District v WCAB. It is right on point with what I’ve been arguing even before this case came out.

Permanent Disability Starts when Temporary Disability Ends

But this case makes it conclusive and establishes again that the permanent disability doesn’t start at MMI or P&S. It starts at the last furnishing of temporary disability. And guys, if you put this in mathematical terms, you’re talking about hundreds-of-thousands of dollars to the injured worker and tens-of-thousands, if not hundreds-of-thousands, in attorney fees. And if you mess up on this calculation, this is malpractice.

Contact MB&A for Legal Help with Your Workers’ Compensation Case

I hope this video has been helpful. I’ve made many videos on 100% disability cases and how difficult it is to get to those and some of the pitfalls. But this is a pitfall that I wanted to highlight. And there’s great case law directly on point. Hopefully, this has been helpful. If you have any questions or concerns, my office is standing by. Please like, subscribe, as we put out lots of videos that shed light on the plight of California injured workers and recent case law.