Workers Compensation Attorneys

You work hard to support yourself and your family. But you may sometimes worry about the possibility of getting injured on the job while working in California. How will you feed your family? Can you still keep a roof over your head? Who will pay for your medical bills? What happens if your employer blames you for your injuries?

We’ll answer these and many other questions in the following article by discussing something called workers’ compensation. Workers’ compensation laws are state-based, which means the rules surrounding the overall claims process will be the same whether you get hurt in Los Angeles, San Francisco or the Central Valley.

What is workers’ compensation?

California worker

As its name implies, workers’ compensation is a compensation system designed to make it as easy and seamless as possible for workers injured on the job to receive compensation.

The key to making it easier for workers to get compensation is to create a no-fault system. This allows workers can obtain compensation without having to prove who was at fault for their injuries. 

Not only does this eliminate additional paperwork and bureaucracy, but it also results in an injured worker getting compensation even if it was the employee’s mistake that led to the injury. 

In return for this ability to obtain compensation regardless of fault, employees cannot sue their employers in court (subject to a few exceptions). 

Workers’ compensation benefits may consist of the following:

  • Medical bills: Workers’ compensation will pay for medical treatments, reasonable travel costs, prescriptions, medical equipment and other expenses you face to treat the injury you sustained at work.
  • Vocational training: This is financial assistance to help pay for retraining or new skills if you can’t return to your old job.
  • Death benefits: If the work-related injury results in your death, eligible family members may receive monetary payments.
  • Temporary disability benefits: These are sometimes referred to as lost wages. These payments are intended to compensate you while you recover from your injuries and can’t work.
  • Permanent disability benefits: These are payments for situations where your injury leads to a permanent loss of a mental or physical ability that restricts your ability to work. 

Because workers’ compensation is a no-fault system, the key factor as to whether workers’ compensation applies is if the injury directly relates to work.

Worker injuring back due to heavy lifting

An injury relates to work if it’s “arising out of and in the course of employment.” These can include injuries caused by a single event or continuous exposure to something harmful at work, like a chemical or a repetitive activity that causes an injury over time. However, they must be the result of you doing your job.

If you slip and fall in the company lunchroom while preparing your midday meal, that’s probably covered by workers’ compensation. But if you drive to a local restaurant during your lunch break and get into an accident, that’s probably not covered by California’s workers’ compensation.

Who pays for workers’ compensation?

Your employer. What generally happens is that an employer will purchase a workers’ compensation insurance policy and pay for the premiums themselves. California employers cannot ask you to help pay for these insurance premiums as they are considered part of the cost of doing business.

What are your rights if you get injured at work?

California warehouse worker

Whether you get hurt in Southern California or the San Francisco Bay Area, your rights after getting hurt at work will be the same. Specifically, you have the right to receive certain types of compensation without having to prove fault. Note that punitive damages and pain and suffering are not recoverable with workers’ compensation.

You also have the right to have your workers’ compensation claim handled in a prompt and fair matter. If a claims administrator denies your claim, you have the right to appeal that decision. If you decide to file an appeal, you must file the appeal promptly. If you wait too long, these appeal rights may be gone forever.

You only have these rights if you are an employee; independent contractors do not enjoy workers’ compensation benefits. However, sometimes employers will mistakenly misclassify a worker. And in some situations, employers will misclassify workers on purpose to avoid having to pay payroll taxes or include the worker under their workers’ compensation policy.

How to apply for workers’ compensation?

The first step is to notify your employer of the injury. Absent a special situation, you only have 30 days after the injury to do this.

Within 24 hours of reporting the injury to your employer, they should give you a claim form to fill out. The official name of this form is the DWC 1 and two main sections need to be completed. 

You will complete the employee section and return the form to your employer. Your employer will then complete the employer section and send the DWC 1 to its workers’ compensation insurance company. 

The insurance company will begin processing your claim. During this time, it may immediately authorize you to begin receiving workers’ compensation benefits, especially to pay for medical bills. 

In 2019, the U.S. Bureau of Labor Statistics reported that there were 888,220 non-fatal occupational injuries and 5,333 work-related fatalities. The most common type of injuries, regardless of industry were sprains, strains and tears. These accounted for 295,180 of the reported non-fatal injuries. Other common injuries that occurred on the job included:

  • Fractures (85,710 injuries)
  • Cuts, laceration or punctures (89,730)
  • Bruises or contusions (80,640)
  • Soreness, pain (157,440)

As for what caused these injuries, the National Safety Council states that more than 84% of non-fatal injuries that lead to time away from work are due to the following three causes:

  • Overexertion and bodily reaction: These occurred at a rate of 27.0 per 10,000 full-time workers and accounted for 31.0% of workplace injuries.
  • Slips, trips and falls: These occurred at a rate of 23.9 per 10,000 full-time workers and accounted for 27.5% of workplace injuries.
  • Contact with objects and equipment: These occurred at a rate of 22.4 per 10,000 full-time workers and accounted for 25.8% of workplace injuries.

After these top three causes, the next most common causes include:

  • Transportation incidents: These accounted for 5.6% of workplace injuries.
  • Workplace violence: These accounted for 5.0% of workplace injuries.
  • Exposure to harmful environments or substances: These accounted for 4.2% of workplace injuries.

Which jobs have the most work injuries?

Worker injuring their finger

According to the National Safety Council, jobs that were most likely to lead to a workplace injury serious enough to result in time away from work were located in the below industries:

  • Transportation
  • Warehousing
  • Agriculture
  • Construction

These include jobs such as commercial truck drivers, material handlers, production workers, maintenance and repair workers, vehicle mechanics, construction laborers, farmers, building cleaners and food preparation workers.

Reasons to seek advice from a workers’ compensation attorney?

Luckily, most workers’ compensation claims will not require the assistance of workers’ compensation lawyers. Yet there are characteristics about your claim that may signal the need to talk to a workers’ compensation legal professional:

  • Your employer or the workers’ compensation insurance company are unreasonably refusing to pay for your medical bills and/or lost wages;
  • Your work-related injury may lead to a permanent disability that limits your ability to work; or
  • Your injuries were the result of unlawful behavior by a third party, such as a vendor that engages in regular business with your employer.

The single biggest reason to consult with an attorney that focuses on workers’ compensation cases is that they can spot potential issues or problems that you are unaware of. After all, you don’t know what you don’t know. The legal world is pretty complicated, but if you know what your legal issue is, most people can handle their own legal matter, assuming they have enough time to learn the law.

The trick is knowing what legal issues are involved in your case. You can’t go to the law library at your local courthouse or search the Internet for an answer to a question you don’t even know to ask. 

For instance, you might be focusing on the question of whether you can prove if an injury is work-related or not. But in doing this, you completely miss the deadline to bring a workers’ compensation claim. 

If you had no idea that there was a time limit to file your claim, you would never know to figure out how much time you had following an accident to submit your workers’ compensation claim. An attorney from a law firm that focuses on workers’ compensation cases and other similar areas of law will know to be aware of these potential pitfalls when working on your case.

It depends on who you’re trying to sue and why you’re suing. If you want to sue your employer for your injuries because you believe your employer caused them, then in the majority of situations, you can’t sue your employer. 

In return for offering compensation for your work-related injuries without you having to prove fault, your employer enjoys immunity from most employee-brought tort suits. But there are a few exceptions to this rule:

  • Your employer did not carry workers’ compensation insurance at the time of the injury.
  • Your employer tried to cover up the accident and the cover-up resulted in greater harm to you.
  • Your employer assaulted you.

Even if California workers’ compensation law prevents you from suing your employer, you may have the ability to sue a third party that played a role in your injuries. 

For example, you work in a warehouse and get hurt when a forklift malfunction injures your leg. Your employer might be immune from suit from you, but you could potentially sue the manufacturer of the forklift.

California has a two-year statute of limitations for bringing personal injury lawsuits. So if you have the right to sue your employer or a third party for your workplace injury, you will typically have two years to bring suit. A statute of limitations is a law that creates a deadline on when someone can take legal action against someone else.

How long do work injury compensation claims take?

The answer depends on if there are any disagreements about the claim. If there are no disagreements or questions about your claim, then you can expect your benefits to start coming within a few weeks after the workers’ compensation insurance company receives your claim.

If your claim gets denied or you disagree with a finding during the claims process, then you will need to take additional steps. If you want to contest your claim denial, you must file a case. This requires you to file an Application for Adjudication of Claim.

If you disagree about whether your claim is covered by workers’ compensation, then you can ask to be evaluated by a qualified medical evaluator or have an agreed medical evaluator resolve your dispute.

Depending on how effective these avenues are, you also have the option of filing an appeal to the Workers’ Compensation Appeal Board (WCAB). How far you take your claim through the administrative process will determine how long it takes to resolve your claim. It can easily take several months, if not longer. 

For instance, if there is an administrative trial to decide your workers’ compensation claim, the administrative law judge may have as many as 90 days after the trial to make a decision. Then if you disagree with that decision, you have the option of filing a Petition for Reconsideration with the WCAB. 

The bottom line is that there are so many stages in which your workers’ compensation claim could potentially reach if you were so inclined. And some of these stages could potentially take a few months to get through.

How are work injury settlements calculated? 

Most workers’ compensation settlements will consist of up to three components:

  • Temporary disability payments
  • Permanent disability payments
  • Medical costs

These can combine in any number of ways to create two types of settlements: stipulations with request for award and compromise and release.

Stipulations with request for award will normally have weekly payments for temporary and/or permanent disability benefits. There will also be an agreement from the claims administrator to pay for any necessary medical bills relating to the work injury.

As for a compromise and release settlement, this is generally made up of a lump sum payment. Sometimes this payment will cover the costs of any future medical care. If the lump sum does not include money to pay for your future medical bills, the claims administrator may continue paying your doctor for your continued treatments.

Do I have to pay upfront for a workers’ compensation attorney?

In the vast majority of cases, no. Most workers’ comp attorneys in Los Angeles work on a contingency fee basis. This means the attorney only gets paid if they can recover benefits on your behalf.

Most of the time, the contingency fee will be between 9% and 25% of your total recovery. However, a judge may have to approve the fee. In deciding whether or not to take your case, the compensation attorney will usually offer a free initial consultation. 

What if I can’t return to work after an injury?

The answer to this question relies on two major factors: how serious your injuries are and what sort of accommodations your employer can make for you.

If you are in the process of healing, your employer may have you stay home until you recover enough to begin working at your old job. Alternatively, your employer might be able to give you a different job or modify your old job so you can work while you recover. Then once you fully recover, your employer may offer your old job back.

If you are unable to fully recover from your work-related injury, you may be eligible for permanent disability payments. In California, these will often begin after your temporary disability payments end. Temporary disability payments typically end after a doctor concludes that you’ve reached maximal medical improvement.

Once you qualify for permanent disability benefits, you will then be rated as to your level of permanent disability. A rating of 100 is total permanent disability and is very rare. Almost all injured workers receive a rating of between 1 and 99, which signifies a partial permanent disability. A permanent disability rating of between 5 and 30 is most common for injured workers in California.

The amount of your permanent disability payments, as well as how long you will continue to receive them, depend on:

  • When you got injured.
  • How much money you were earning when injured.
  • Your permanent disability rating.
  • What kind of work changes your employer can provide to accommodate your disability.

Is workers’ compensation taxable?

In most cases, it’s not. You don’t pay any local, state or federal taxes on your workers’ compensation benefits. But if you’re receiving Social Security Disability Insurance (SSDI) benefits, and a portion of the SSDI benefits have been replaced with workers’ compensation benefits, then a part of your workers’ compensation benefits could be taxable.

Can I be laid off while on workers’ compensation?

Yes, but the legality of it depends on your employer’s reasons for firing you. To better explain, let’s break down two possible scenarios.

In the first scenario, your employer fires you while you’re receiving workers’ compensation benefits. Most of the time, this can be legal. The mere fact that you happen to be on workers’ compensation does not automatically make you immune from losing your job. 

Imagine you get hurt at work, file for workers’ compensation then begin receiving benefits. But while you’re taking time off from work to get medical care for your injuries, your employer merges with another company. 

Immediately following the merger, your new employer decides to get rid of the department you work in. Overnight, you and everyone else in that department gets laid off. What your employer just did was not unlawful, at least within the context of workers’ compensation. But there’s not all bad news. 

If you still need additional medical care or time to recuperate from your injuries when you get fired in a situation like this, you will continue to receive workers’ compensation benefits. Once a doctor concludes you are ready to return to work, only then will those benefits end.

In the second scenario, your employer terminates you because you are on workers’ compensation. This is blatantly illegal, as employers may not retaliate against their employees for filing a workers’ compensation claim or otherwise taking advantage of its benefits. 

The problem many employees face in this scenario is that their employers are smart enough not to tell them they are getting laid off because they are on workers’ compensation. What normally happens if an employer wants to retaliate against the employee for filing a workers’ compensation claim is that the employer will pretend they’re firing the employee for some other, made-up reason. This made-up reason is called a pretext and if you get fired under a pretext, you may have a wrongful termination legal claim.

Keep in mind that there’s a minor exception to this second scenario. While your employer may not fire you because you are on workers’ compensation, they can fire you if your injury prevents you from doing your job.

If your workplace injury results in a disability, the Americans with Disabilities Act of 1990 (ADA) may apply to your employer and stop them from discriminating against you for that disability. Assuming the ADA applies to your employer, it also requires your employer to provide you with a reasonable accommodation so that you may complete your job tasks despite having a disability.

But you aren’t eligible for just any accommodation. The accommodation must not create an undue burden on your employer. That means it can’t be extremely difficult or very expensive to implement. What constitutes extreme difficulty or great expense will depend on the resources of the employer.

If your injury creates a disability that keeps you from doing your job and no reasonable accommodation is possible, your employer has the right to fire you, at least under the ADA. The ADA protects disabled employees from getting fired because they have a disability, but only if they are otherwise able to do their job, with or without a reasonable accommodation. 

Updated on July 9, 2021

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