Workers' compensation is a very limited system only intended to provide benefits to those employees injured during the course and scope of their employment. In certain cases, 1099 or contract employees may also be covered under workers' compensation. The reason for this is due to employer attempts to misclassify workers to avoid the costs of workers' compensation insurance and the workers' compensation system. In California, workers' compensation is generally speaking a no-fault system. This means that an injured employee is eligible for workers' compensation even if the employer is not negligent. That being said, injuries sustained due to the fault of third parties (for example, negligent drivers in motor vehicle accidents) allow for you to receive workers' compensation benefits as well as possibly recover compensation from negligent third parties. The workers' compensation laws in California allow for you to make two sorts of claims: specific trauma claims and cumulative trauma claims.
A specific trauma claim is the most common type of workers' compensation claim. Some common examples of specific trauma injuries include: (1) involvement in a motor vehicle accident; (2) injuries to your back due to heavy lifting; (3) injuries due to falls from a ladder or a roof; (4) burns received in a fire; or (5) injuries due to falling objects.
A cumulative trauma injury is a repetitive motion injury. The most common cumulative trauma injury claim made, is usually orthopedic in nature. This cumulative trauma injury develops from repeating the same motions over and over at work. Such injury can even come about due to repeated bending or because of work tasks performed in awkward physical positions. Due to the repetitive motions performed, our bodies wear down resulting in injuries. Many common orthopedic cumulative trauma injury claims include: carpal tunnel syndrome, cubital tunnel syndrome, tendinitis, neck pain, and lower back pain (often involving sciatic nerve pain). In addition to the common orthopedic injuries, there are many other cumulative trauma claims including headaches, high blood pressure, cardiovascular or heart-related matters, upper gastro intestinal cases, including acid reflux, and lower gastro intestinal such as irritable bowel syndrome (IBS) or hemorrhoids. Cumulative trauma can also involve toxic exposure, hearing loss, skin rashes, sleep issues, sexual dysfunction and urological disorders. Cumulative trauma can also involve psychological and emotional disorders including stress, anxiety and depression.
In California, workers' compensation is comprised of four primary benefits. These include:
If death results from a work-related injury, then the surviving dependents (total or partial) may be entitled to any benefits that accrued while the injured employee was alive. Surviving dependents may also be entitled to workers' compensation death benefits, including burial expenses if the death was job related. Questions as to causation and the amount of such benefits vary with each case. Similarly, there are specific time limitations to file a death claim with the workers' compensation appeals board. Because each case is different, you should address such questions with an experienced workers' compensation lawyer. It is important to note that the above benefits are not the same as those one may receive in civil cases. For example, there is no compensation for pain and suffering under workers' compensation law.
An injured worker may be entitled to receive disability compensation when they are permanently unable to work or are temporarily disabled. You may also be eligible to receive disability compensation when your employer is unable to accommodate your restrictions and will not take you back to work. If this occurs, you may be able to sue your employer in the superior court, as well as file a discrimination claim under Labor Code 132a. Injured workers are eligible for two years of temporary total disability compensation within a five-year period. The exact amount you receive depends on the amount of wages you receive. It may also vary depending upon who the employer is. If at any point, you are not receiving temporary total disability compensation, then you may be able to apply for state disability.
This is the way that an employee receives compensation if they suffer permanent residual effects from their injury. The basis for determination of the extent of permanent disability involves a review of the medical evidence, which can include records from physicians reporting. The percentage of disability you receive depends upon the degree of impairment as defined by the American Medical Association, and this may be payable even if the worker returns to his or her usual and customary occupation. The actual monetary value of any settlement is a computation from a disability schedule adopted by California.
There have been many changes in the laws with regards to medical treatment over the recent years. As the laws often favor insurance companies, there are often denials of medical treatment claims under the workers' compensation system. If workers' compensation is not authorizing treatment, you may treat outside the workers' compensation system and treat through your personal insurance. In any case, the workers' compensation system is often frustrating for injured workers due to denials of medical treatment. As originally designed, an injured worker was entitled to have the employer and workers' compensation insurance carrier pay for all medical treatment that is reasonable and necessary to relieve the effects of the injury. Medical care can include doctor's consultations/visits, hospitalization, surgery, physical therapy, medications, laboratory and diagnostic testing, nursing care, psychiatric treatment, and mileage costs for travel to and from doctors, therapists, etc.
Employees injured on or after Jan. 1, 2013, with injuries that result in permanent partial disability, and whose employer does not offer other regular, modified or alternative work, may qualify for the a voucher. The offer must be made within 60 days after receipt by the claims administrator of the Physician's Return-to-Work & Voucher Report (Form DWC-AD 10133.36). The voucher amount is $6000 for all levels of permanent disability and can be used for training at a California public school or any other provider listed on the state's eligible training provider list. It can also be used to pay licensing or certification and testing fees, to purchase tools required by a training course, to purchase computer equipment of up to $1,000 and to reimburse up to $500 in miscellaneous expenses. Up to 10 percent, or $600, may be used to pay for the services of a licensed placement agency or vocational counselor. No more than 10 percent of the value of the voucher can be used for vocational & return to work counseling.
If you were injured prior to January 1, 2004, and you find that as a result of your injury, you are unable to return to your usual and customary occupation, your employer is obligated to provide vocational rehabilitation services up to a maximum of $16,000 in costs and payments. For those injured after January 1, 2004, vocational rehabilitation does not exist. If you are unable to return to work, you may be entitled to a "job displacement allowance" ranging from $4,000 to $10,000, which is payable in a voucher form to a school or training. In certain instances, you are able to receive cash in place of this voucher (this is the most common requested form of payment by injured worker).
All employers may create a medical provider network (MPN) to control medical treatment for your work-related injury. If your employer creates a MPN, you must treat within the network for your injuries. However, if the employer is not authorizing treatment, then it is possible to treat outside the network through your personal insurance or through a doctors' lien set up through an attorney. The Workers' Compensation Appeals Board regulates one's ability to go outside of the MPN on a case-by-case basis. If you pre-designate a doctor to treat you for a work-related injury, this doctor likely will be able to act as your primary treating physician — even if outside of the MPN. This would mean that the doctor needs to be willing to accept payment per the workers' compensation system. While many injured workers receive chiropractic care, it is important to note that there is a lifetime limit of 24 physical therapy and chiropractic sessions concerning the injury. While a claims examiner may approve more therapy, there is no appeal process if denial of such treatment for going beyond this limit occurs. Additionally, a chiropractor may only act as a primary treating physician for 24 visits. After that, you will need to visit an orthopedic doctor instead.
There are various statutes of limitations that apply to filing a workers' compensation case, and these can be extremely complex. Because of the complexity, it is always best to speak with an attorney to review your personal circumstances and answer your questions.
Most workers' compensation claims are denied. This means that the employer is denying all responsibility for a work-related injury. In the event of a denial, you should consult with an attorney. Do understand that when there is denial of a workers' compensation claim, you will likely not be receiving any workers' compensation benefits. In the event you cannot work and also are not receiving wages, contact the Employment Development Department (EDD) or any other company/system to check your eligibility for benefits.
In most cases when injured on the job, you are limited to recovering workers' compensation benefits. You may not sue your employer for damages in a separate civil action, and thus workers' compensation is referred to as the employee's exclusive remedy. That being said, there are various exceptions to the exclusive remedy rule which do allow you to sue the employer in court, and recover general and special damages. These exceptions generally cover situations where the employer may have intentionally caused the injury or violated some public policy when the injury occurred (i.e. discrimination, harassment or wrongful termination). If on-the-job injuries were the result of the negligence of a third-party, you may proceed with a civil action independent of the workers' compensation claim. This can include injuries from a rear-end accident while you are on the job. There are limits placed upon workers' compensation benefits by statute. However, additional benefits may be available in a personal injury accident, including obtaining reimbursement for loss of wages and overtime pay, loss of future earning capacity, certain out-of-pocket expenses, and compensation for pain and suffering. As with all legal actions, time limitations apply in filing separate civil actions against an employer and/or a third party. It is therefore important to speak with an attorney about such claims. Additionally, please note that you are not entitled to double recovery (receiving money from both a workers' compensation claim and a civil lawsuit). The workers' compensation carrier can be entitled to a credit for the net recovery the injured worker receives outside the workers' compensation system such as from a personal injury case. However, negotiations are sometimes possible to help maximize net recovery. For this reason, coordinating the workers' compensation case and the personal injury case is an extremely prudent strategy.
Workers' compensation is a highly complex topic, and we can only begin to describe its enormity here. If you have any additional questions, please contact us in Mission Hills, California, by calling 818-830-1910. We provide representation in Los Angeles County, Santa Barbara County and Southern California.
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