How does my recent surgery affect my Workers Compensation award?

How does my recent surgery affect my Workers Compensation award?


If you have had surgery for your work injury you should immediately contact a Santa Rosa or Sonoma County workers compensation attorney, such as the Law Offices of Marc Francis, specialists in workers compensation matters. You may be entitled to significant workers compensation benefits and you should take prompt action in order to protect your rights.

Surgery for your work injury can affect your legal entitlement to workers compensation benefits in several important ways. First, you are entitled to receive temporary total disability benefits, calculated as two-thirds of your average weekly wage, while recovering from your surgery. These benefits are payable every two weeks while your body is healing after your surgery. These payments should continue until your doctor finds your condition “permanent and stationary”. This means that although you may still have limitations, restrictions, and problems in performing activities of daily living, your medical condition may be “permanent and stationary” if, after a reasonable time following surgery, your condition is not changing much from week to week and is likely to be permanent. Temporary total disability benefits in most cases are limited to 104 weeks of payments within 5 years of the date of your injury. Calculation of your average weekly wage can often be complicated and confusing, especially if your employer has not accurately reported all your earnings to the insurance carrier, or if you have more than one job. All relevant earnings must be taken into account to determine your correct temporary total disability rate.

Secondly, in California’s workers compensation system the effects of your surgery are most likely “ratable” which means your medical condition after surgery will be taken into account in determining your permanent partial disability award (often called a “settlement”). In a recent case, the Court of Appeal found that the injured worker’s surgery was 100% responsible for that worker’s permanent partial disability because the disability was caused by the surgery. This recent case distinguishes between rating disability based on the cause of an injury, which is incorrect and may produce an inaccurate lower rating, and determining the cause of the worker’s disability, which resulted from the residual effects of the surgery. In that particular case, the injured worker’s carpal tunnel wrist surgery caused a complex regional pain syndrome, which is a very serious neurological problem, that left the worker unable to return to work and rendered her permanently 100% disabled. In that case the insurance company wanted to pay a much lower award by rating the initial injury instead of the effects of the surgery. Fortunately, the injured worker’s attorney identified the insurance company’s error, took the case to court, and required the insurance company to pay benefits correctly. The court correctly determined that it is the residual problems from the surgery that must be rated to determine the worker’s award.

This can happen in various types of cases, such as a failed surgery, or a replacement of a knee or hip joint. The legal theory here is that once a joint replacement surgery is done, the artificial joint installed in the injured worker’s body by the treating doctor is in fact what should be rated to determine her/his award or settlement. The award should not be determined based on how or why the work injury happened.

Surgery for your work injury is also very important in determining your entitlement to a lifetime future medical award for your work injury. Many surgeries for work injuries require lifetime follow up with a treating doctor for medications, injections, or physical therapy, even if the initial surgery is successful. In other cases, such as joint replacements of the knee or hip, the surgery may need to be repeated or re-done, particularly if the injured worker was of a young age at the time of the initial surgery. In still other cases, there may be hardware implanted in your body, such as metal bracing, pins, or screws, to repair fractures, and this hardware may require revision or removal in the future. If the surgery was not successful, the need for a lifetime medical award in the workers’ compensation case is obvious.

For all of these reasons, it is important in protecting your benefit rights that you promptly contact a specialist in workers compensation law for assistance in your case. The Law Office of Marc Francis can help whether you live in Sonoma County, Santa Rosa, or some other part of northern California. We are here to assist you.

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