TN 10 (02-17)

A. Types of California (CA) WC payments

The State of California WC system includes the following types of payments:

1. Periodic Payments

• Temporary disability (TD):

  • temporary total disability (TTD)

  • temporary partial disability (TPD)

  • vocational rehabilitation temporary disability (VRTD)

• Permanent disability (PD):

  • permanent partial disability (PPD)

  • permanent total disability (PTD)

• Vocational rehabilitation maintenance allowance (VRMA)

2. Permanent disability advance (PDA)

You may see PD payments referred to as PDA. PDAs are:

• Paid at an established permanent partial (PP) or permanent total (PT) rate as periodic payments

• Paid as a small “on request” hardship lump sum (LS) payment

• Considered an advance against and usually subtracted from any future WC settlement

3. Settlements

a. Compromise and Release (C&R)

• Represents a final lump sum settlement

• Specifies attorney fee expense amount

• Usually subtracts PDA amounts per DI 52120.030A.2.

• May include a purchased annuity or incorporate a structured settlement

• Typically specifies an amount to cover, in whole or part, any state public disability benefit (PDB) payments previously paid (referred to as an Employment Development Department (EDD) lien)

b. Stipulations with Request for Award (Stipulations)

• Not a lump sum final settlement

• An agreement for payment of periodic PD benefits until a specified maximum amount has been paid

• Can reopen or follow with another stipulated award or C&R

NOTE: State disability insurance (SDI) payments made by the state EDD under the state's unemployment disability insurance program are not part of the state WC system. SDI payments are subject to PDB offset, not WC offset per DI 52120.030F.

B. End of Vocational Rehabilitation – January 1, 2004

As of January 1, 2004, VRTD and VRMA benefits are no longer available to new applicants. The state replaced these benefits with a voucher system. The state refers to the non-transferable vouchers as Supplemental Job Displacement Benefits (SJDB). Before January 1, 2013, the state issued vouchers in amounts ranging from $4,000 to $10,000. The amount depended on the PD rating. For injuries occurring on or after January 1, 2013, the voucher amount is $6,000. This is regardless of the PD rating. Recipients can only use the vouchers to pay for educational retraining or skill enhancement at state-approved or accredited schools. SJDB vouchers do not cause offset.

C. How California makes WC payments

Private parties primarily administer California WC, which includes authorized insurance companies and self-insured employers.

The state Workers' Compensation Appeals Board (WCAB) oversees the provision of WC benefits and resolves disputes.

This section describes how WC payers in California make WC payments under state law. Additionally, it provides instructions on how to treat these payments for SSA offset purposes.

1. WC payers

• Insurance carriers - Licensed by the state to transact WC

• State Compensation Insurance Fund (SCIF) – A state agency that operates by charter as a not-for-profit insurance carrier

• Self-insured employers

• Third-party administrators - Service organizations hired by self-insured employers. For example, Cambridge Integrated Services Group, Inc.

• Uninsured employers - The state’s Uninsured Employers Benefits Trust Fund (UEBTF) helps with payment of WC benefits to workers injured on the job when employers fail to insure their workers despite the requirement. These payments are subject to offset. Payments made directly by uninsured employers in lieu of WC are also subject to offset.

2. Periodic payments

Periodic payments can be TD or PD benefits. A key factor in distinguishing between TD benefits and PD benefits is the “permanent and stationary” (P&S) date. The P&S date, as determined by a doctor's report, is the point in time at which no further medical improvement is expected.

a. Temporary Disability

*No limit on duration of payments for injuries January 1, 1979 to April 19, 2004 except for TPD which was limited to 240 weeks within a period of 5 years from date of injury

b. Permanent Disability

*EXCEPTION: PDAs that supplement VRMA up to the TD rate are subject to offset. See DI 52120.030G.

c. Vocational Rehabilitation Maintenance Allowance

When verifying WC payments for injuries before 2004 through insurance companies and other payers, ask that VRMA payments be included. Payers do not routinely include information on VRMA payments unless specifically asked.

3. Types of negotiated settlements under California law

Most WC cases in California settle through a C&R or a Stipulation with Request for Award (STIPS) without going to trial. If a settlement between the worker and the insurance company cannot be negotiated using one of these options, the case may go to trial before a WCAB judge. The judge issues a decision called a Findings and Award (see Exhibit 3 in DI 52120.030L).

Attorneys may structure or characterize settlements in various ways, so actual settlements may include elements that are not binding on SSA. For example, if a lump sum award is characterized as representing payments over the worker's expected remaining life, see DI 52150.065A. For information on subsequent addenda to LS awards, see DI 52150.065E.

See Also:

• DI 52120.030H Lump Sum Awards

• DI 52120.030I Compromise & Release

• DI 52120.030J Stipulations with Request for Award for instructions on processing California LS and stipulated settlements.

4. Sequence of payments by type

Payments usually begin with TD and end with C&R. The sequences in which payers make payments vary considerably but generally are in the following order:

• TD or PD alone, or followed by C&R

• TD followed by PD (a C&R may follow)

• TD followed by PD followed by VRMA (may involve multiple periods of PD and VRMA; a C&R may follow)

• TD followed by PD followed by VRMA followed by STIPS and/or C&R (may involve multiple periods of PD, VRMA, and multiple STIPS)

5. Cost-of-living adjustments (COLAs)

California law currently provides for annual cost-of-living increases only for life pension and PTD benefits (see DI 52120.030C.2.b). These COLAs, which are effective each January 1, are available only to workers with injuries occurring on or after January 1, 2003.

6. Third party

SSA's treatment of third-party settlements in California WC cases follows normal processing guidelines in DI 52105.010.

7. Reverse offset

a. Subsequent Injuries Fund

When a worker has a previous permanent disability or impairment and sustains a subsequent injury, the employer is not liable for the combined disability, but only for the disability caused by the later injury. However, when the combined permanent disability is at least 70 percent, and meets certain other criteria, the worker may receive extra compensation from the SIF. California has a dollar-for-dollar reduction provision that applies only against payments made from the SIF.

• The basic WC payment is subject to offset.

• The additional payments made from the SIF are not subject to offset. Reverse offset applies to SIF payments.

• If the number holder (NH) is receiving SIF payments only, answer “Y” to the “Reverse Jurisdiction Involved” question on the Modernized Claim System (MCS) WCPL screen or ICF WCCL screen. Do not input the case as reverse jurisdiction if the NH is also receiving the basic WC payment.

• SIF payments are identified as such on payment documents.

• We are not required to notify the state in these cases.

b. Industrial Disability Leave (IDL)

IDL is a benefit available to state legislative employees and members of the Public Employees' Retirement System (PERS) or the State Teachers' Retirement System (STRS) in lieu of workers' compensation TD benefits.

• IDL payments are under a reverse offset plan and not subject to offset.

• We are not required to notify the state about the claimant’s disability benefit or reverse offset.

• If you discover that offset was erroneously imposed based on IDL benefits, remove offset retroactive to the offset effective date and code the case as a reverse jurisdiction.

For more information on reverse offset, see DI 52105.001.

8. WC payments made to employer

a. WC payment record shows payments made to employer

If a WC payment record shows payments to the employer instead of the disabled worker, usually a “salary continuation plan” is in place. Under the California Labor Code, if the plan meets the statutory requirements, which include minimum salary requirements, then no WC is payable to the disabled worker. However, the insurer may reimburse the employer for WC that the insurer would have paid to the worker. For the period where the employer, not the NH, receives the WC payments, there is no offset. See DI 52110.010.

b. Section 4850 payments

California Labor Code section 4850 provides a paid leave of absence for up to a year in lieu of WC TD or VRMA payments. This section is for certain disabled public safety officers (police, firefighters, and so forth). Section 4850 payments fall under the same salary continuation policy noted in DI 52120.030C.8.a. The leave of absence payments to the worker and any reimbursement paid to the employer by the WC insurer are not subject to offset as long as the worker does not actually have use of the WC payments.

D. Attorney fees

California cases handle attorney fees and other excludable expense deductions normally (follows standard excludable expenses procedures). The state must approve attorney fees. Therefore, attorney fee expenses always appear on standard documents.

STIPS generally specify that attorney fees are commuted from the far end of the settlement, effectively ending the periodic payments sooner. Use a Method C-type proration as a trial computation to calculate the offset ending date unless the award specifies otherwise. Input STIPS agreements as periodic payments in ICF WC/PDB using the results from the trial computation. See Example #8 in DI 52120.030M.

E. Retirement insurance benefit considerations

California does not offset its WC for SSA retirement benefits.

F. WC and California State Disability Insurance (SDI)

1. SDI in relation to WC

Unlike WC, the state EDD pays California SDI and does not require that the injury or illness is work-related. Non-public employees' paycheck deductions fund SDI.

a. SDI payments

• SDI is a PDB and paid bi-weekly (see DI 52135.030).

• SDI pays for a maximum of 52 weeks. If the worker had lower earnings, it pays fewer than 52 weeks. If EDD reduces the weekly payments for offsets, such as WC, it is paid for more than 52 weeks.

• Although the SDI benefit amount is roughly equivalent to WC TD benefits, it is important not to confuse the two.

b. How SDI and WC benefits affect each other

Under California law, SDI cannot be paid for any month that WC TD or PD is payable. However, SDI can be paid if TD is delayed, interrupted, denied, or paid at an incorrect lower rate. In the latter situation, SDI may pay the difference.

Typically, for any work related injury, a worker files an application and starts receiving SDI. It is later that the worker files an application and starts receiving WC. Under these circumstances, EDD and the WC carrier may coordinate payments and/or EDD files a lien against the WC for SDI already paid (California Labor Code Section 4904).

If payments are not coordinated timely, EDD and the WC carrier negotiate the amount of money reimbursable to the worker's SDI account from any WC settlement. The amount repaid to EDD may be less than the SDI actually paid. In this situation, the State and WC carrier may agree to use a formula. The WC carrier only reimburses a proportionate amount of the SDI. The standard formula is the “Baird Formula.” An explanation is in SSR 87-20c. See Example #7 in DI 52120.030M.

To satisfy the EDD lien, there may be withholdings from the WC LS proceeds. Alternatively, the carrier, employer, or third party may satisfy the lien via a separate reimbursement. Once any party reimburses EDD for the lien, EDD immediately adds back the amount repaid to the worker's SDI account, making the repaid amount available for payment should the worker reapply and qualify for SDI benefits. For an explanation of the way we adjust for an EDD lien, see DI 52120.030F.2.a.

When processing cases involving both SDI and WC payments:

• Do not confuse SDI and WC. For offset, treat the PDB and WC claims separately.

• There may be unintentional periods of overlap when the basis of offset is both SDI and WC payments.

• Never use an SDI rate or stop date to prorate a WC LS.

2. EDD liens repaid as part of a WC lump sum

a. Policy

EDD liens are not excludable expenses for WC LS proration purposes and should be included in the gross LS amount. For instructions on refiguring PDB offset to exclude the amount of SDI repaid to EDD associated with the WC claim, see DI 52135.030G.

EXAMPLE: The SDI claim paid out at a weekly rate of $116.00 for 52 weeks (total paid equals $6,032.00). EDD filed a lien for $6,032.00 against WC. When the WC claim settled, the WC defendant (employer) repaid $3,016.00 of the $6,032.00 EDD lien. There is no deduction from the LS amount awarded to the worker.

• Use the gross LS award amount for proration purposes. Do not adjust for the repaid $3,016.00, regardless of which party repaid the EDD lien.

• Reduce the PDB offset by the $3,016.00 repaid amount either by using a weekly rate of $58.00 for 52 weeks or $116.00 for 26 weeks, whichever is most advantageous.

b. SDI payment records as evidence of repaid liens

SDI payment record printouts often contain sufficient information to verify that there was a repayment of a lien to EDD. It also specifies the amount of the lien. This information, together with WC documents containing reference to an EDD lien, is generally sufficient proof of a lien. It allows for an adjustment of PDB offset per DI 52135.030G. In a lien repayment situation, the SDI printout shows that:

• The individual payments on the SDI printout add up to the Maximum Benefit Amount (MBA) and

• The “AMT PD” (Amount Paid) entry is equal to or less than the MBA and

• “BAL” (Balance) entry plus the “AMT PD” entry add up to the MBA amount.

These entries verify the repayment of the “BAL” amount to satisfy the EDD lien. See the following example of an SDI printout that shows the entries indicating a repaid lien: http : //sfnet.sf.ssa.gov/wnpsc/dir52001/DI_r52120_030.htm

G. Vocational Rehabilitation Maintenance Allowance (VRMA) payments

California VRMA payments were payable to workers injured before 2004 and were available for these workers through December 31, 2008.

VRMA payments to a worker while participating in a rehabilitation plan had a lower maximum weekly amount ($246 per week) than TD benefits. However, the worker could supplement the maintenance allowance with PDAs up to the total TD rate.

VRMA in lieu of WC

When there is payment of VR in lieu of WC, consider the VRMA benefits as periodic payments for purposes of starting an LS proration.

EXAMPLE 1:

• TD payments @ $250.00/week June 01, 1993 to March 10, 1994

• VRMA @ $246.00/week March 11, 1994 to October 20, 1994

• PDA @ $148.00/week October 21, 1994 to January 15, 1995

• LS for $50,000.00 (less PDA), Attorney Fee $5,000.00

In this situation, VR payments are subject to offset. The last date of the VR payments is the date from which we start prorating the lump sum.

EXAMPLE 2:

• TD payments @ $250.00/week June 1, 1993 to March 10, 1994

• VRMA @ $200.00/week plus PD @$50.00/week (total $250.00/week) March 11, 1994 to October 20, 1994

In this situation, the combination of VR and PDAs total the prior TD amount. Consider VR payments to be in lieu of WC. Consequently, they are subject to offset. The total of the VR and PD payments, $250.00, is the amount for offset.

VRMA payments after a WC award

Payment of VRMA may sometimes continue after the approval and payment of a WC award (that is, C&R, STIPS, or Findings & Award). VRMA payments may also begin after an award. When these situations happen, VR is not specifically included as part of the award. It remains open for later finalization. Because the WC award settles all other WC issues, such VRMA payments are considered paid in addition to WC and are not subject to offset. However, if an amount is set aside from a lump sum to settle VR, and a directed plan is not involved, see DI 52110.005A.2.

For LS proration purposes, VRMA payments in effect at the time of the C&R are deemed to end the day before the WCAB judge approves the C&R. Therefore, the LS start date is the date of the award. Caution: Unless there is specification of another benefit start date in the award, this is the only situation in which the date of an LS award is used as the start date for proration. See DI 52150.060D.2.

H. Lump sum awards

1. Prorating a California C&R lump sum

To establish the weekly proration rate when prorating a C&R LS:

1. Use the PP maximum rate chart in DI 52120.030H.3. when:

   • The LS is specifically designated as a PP LS, or

   • The LS does not specify the type of WC, but there were PP advances before the LS.

   • Use the PP advance rate if the advances were paid at a rate less than the maximum rate.

2. Use the normal priority order in DI 52150.060D.3 when:

   • PP advances were not paid and

   • The LS does not specify the type of WC or the LS is specifically designated as a PT LS.

3. When prorating a C&R LS:
   Include in the gross LS amount all previously paid PDA amounts specified as deducted from the LS award.

Do not impose offset for the periods when the PDA amounts were actually paid. If offset was previously imposed for those periods, remove offset. When an LS was preceded by PDAs, prorate the LS beginning the day after the last TD or VRMA payment.

2. Processing lump sum awards

• The design of the C&R format is to encompass all aspects of a WC claim including TD, PD, VRMA, medical expenses, and so forth. C&R awards are not usually specifically designated as representing a single type of WC such as PP. Therefore, treat a C&R lump sum award as a PP award if the evidence shows that PP advances were paid. Otherwise, follow the instructions in DI 52120.030H.1.b. Most PDAs are PP advances. PT advances are rare.

• PDAs are not an excludable expense. When prorating a lump sum, use the gross LS award amount. This effectively incorporates all previously paid PDAs into the LS. This includes occasional one-time lump sum PDAs that may have been paid. Do not apply offset to any prior periods of actual PDA payments. See DI 52120.030C.2.c. if PDAs are paid as supplements to VRMA payments.

NOTE: When changing prior periods of continuous offset that were based on actual PDA payments to “no offset” periods, breaks in offset may result, changing the 3-year count for triennial redeterminations.

• When prorating an LS involving PDAs, take the following steps unless dates or rates are otherwise specified, or the award specifically states that the LS is in addition to PD previously paid:

  1. Start the proration the day after any TD or VRMA payments ended. If TD or VRMA payments were not made, start with the injury date or the date the worker last worked for the industry.

  2. Use the full award amount.

  3. If PP advances were paid, use the maximum PP rate from the table in DI 52120.030H.3 unless PP advances were paid at lower rate, in which case use the lower rate.

EXAMPLE: Month of entitlement (MOE) 11/2004

TD from MOE through June 6, 2006 at $360/week
PP advances June 7, 2006 through January 2, 2007 at $170/week
TD January 3, 2007 through February 13, 2007 at $360/week
PP advances February 14, 2007 through November 20, 2007 at $170/week, LS Gross Award $50,000, Attorney fees $6,000

When do we start the proration and how do we prorate this case?

• Proration is based on $50,000 minus attorney fees of $6,000.

• Start date for the proration is February 14, 2007 (after the last TD payment stopped).

• Prorate at the $170/week PDA rate.

NOTE: There is no offset for the period June 7, 2006 through January 2, 2007. Consider the PDAs as “no payment”. Do not deduct the PDAs from the lump sum. The “no payment” period results in a break in offset so a 01/2007 triennial redetermination does not apply.

3. PP maximum rates for LS proration

The WC injury date is not necessarily the same date as the Social Security disability insurance benefit onset date. To determine the correct PP rate, verify the WC injury date from the WC evidence.

4. WC lump sum proration involving life expectancy (LE) rates

The “Hartman” formula is a common name for California WC LS settlements that specify a LE rate. Attorneys often characterize settlements using this LE based proration method. LE is the basis of this method. SSA does not endorse the use of any specific LE formula. To prorate an award involving LE rates, follow the instructions in DI 52150.065A.

I. Compromise and Release

For information on how a C&R is awarded and paid, see DI 52120.030C.3. The following chart includes item-by-item instructions for processing offset based on a C&R settlement. See Exhibit 1 in DI 52120.030L for the C&R form.

*C&R paragraph numbers in this chart are based on the current version of the form. The chart only includes those C&R paragraphs containing information needed for SSA's offset determination. It does not include paragraphs consisting solely of pre-printed standard language applicable to all awards.

J. Stipulations with Request for Award

The chart includes item-by-item instructions for processing offset based on a STIPS settlement. For information on how a stipulation is awarded and paid, see DI 52120.030C.3.

A STIPS is not a final LS award. To the extent possible, we adhere to the periodic payment rates and dates specified in the stipulated award. See Exhibit 2 in DI 52120.030L for a stipulations form.

K. How to Verify WC Payment Amounts

1. Contacting insurance carriers

• Obtain WC payment information from the NH, attorney, insurance companies, self-insured employers, third-party administrators, and the SCIF by following the instructions in DI 52145.001.

• Obtain carrier contact information from the WNPSC Workers' Compensation Carrier's Address Listing

2. Contacting the Workers' Compensation Appeals Board (WCAB)

IMPORTANT: Contact the Appeals Board only as a last resort. WCAB offices only have continuing payment information available online. They must retrieve prior WC payment information from archived paper files.

To contact the California WCAB:

• Send a Form SSA-1709 (Request for Workers' Compensation/Public Disability Benefit Information) to the WCAB district office that most likely has the material, based on geographical location. See the WCAB directory

  NOTE: Do not send an SSA-1709 to the headquarters office in San Francisco.

• If you receive a form letter in response, complete and return the WCAB Form AD-2, Request for WCAB Case # Search. WCAB completes the form to provide the CAB Case #, date of injury, location of the file, and status of the file.

• When you receive the Form AD-2 reply, forward the information to the SSA FO parallel to the WCAB office where the file is located.

• Request the FO to secure the information.

• If the FO is unable to comply with the request, provide the information to the NH. Request the NH to visit the WCAB office, obtain a WC payment history, and forward the information to us.

• Diary for 45 days.

• If you receive no response from the NH, do not pursue the issue further.

• Make a determination based on the best available information.

3. Online Access

There is no SSA online WC access for California.

You can obtain general case information online through the search function on the State of California Division of Workers’ Compensation (DWC) Electronic Adjudication Management System (EAMS) public information search page.

4. Specific development issues

a. Verifying VRMA Payments

When verifying WC payments for injuries before 2004 through insurance companies and other payers, specifically ask that VRMA payments are included as noted in DI 52120.030C.2.c.

Form SSA-1709 does not specify that VR payments are included as periodic WC/PDB payments and payers do not routinely include information on VRMA payments unless specifically asked.

b. Obtaining Copies of Settlement Documents

Whenever possible, request full copies of any C&R or other settlement documents. Payment history printouts and SSA-1709 entries often do not contain enough information about a settlement for an accurate offset determination. Copies of settlement documents should be the final versions approved by the WCAB judge.

c. Questioning Form SSA-1709 Medical Expenses

If a carrier completes Section II.8.b.1 or 2 of the SSA-1709 showing an amount for “Present and past medical expenses” or “Future medical expenses” as a deduction from the gross LS payment, do not routinely use the amount shown as an excludable expense. Carriers may inadvertently list all medical expenses they paid on the claim. Before excluding any listed amount, verify the amount shown was deducted from the LS and not paid by the carrier. If a complete copy of the C&R is available, you can accept this as proof of which expenses were specified in the award. No further development is necessary.

L. Exhibits

• Exhibit 1: California State Compromise and Release Form

• Exhibit 2: California State Stipulations with Request for Award Forms

  • For injuries on or after January 1, 2013

  • For injuries before January 1, 2013

• Exhibit 3: Example of a Findings & Award

M. Case examples

1. Coordinated WC and SDI Payments

2. TD Followed by C&R (No PD Advances)

3. Prorating WC Lump Sum When Prior PDA Rate Unknown

4. C&R Involving Prior TD Overpayment

5. C&R Involving a Lump Sum and Structured Periodic Payments

6. TD With Intervening Lump Sum PDA & VRMA Followed by C&R – Attorney Fee Expense from VRMA

7. SDI, PDA, VRMA, PDA, Lump Sum [EDD Lien]

8. Stipulations With Request for Award [Prior Stipulations]

9. C&R with Structured Settlement and Purchased Annuity

N. References

• DI 52135.030 - California Public Disability Benefit (PDB)

• DI 52105.001 - Reverse Offset

• DI 52150.060 - Prorating a Workers' Compensation/Public Disability Benefit (WC/PDB) Lump Sum

• DI 52150.065 - Complex Lump Sum Settlement Provisions

• DI 52150.050 - Excludable Expenses

• DI 52110.005 - Vocational Rehabilitation Payments

• DI 52150.080 - Triennial Redetermination of the Average Current Earnings (ACE)

• DI 52150.045 - Chart of States' Maximum Workers' Compensation (WC) Benefits

• SSR 87-20c - Reduction of Benefits Upon Receipt of Lump-Sum Workers' Compensation Settlement

• State of California Department of Industrial Relations Division of Workers' Compensation