In the state of California, any employee who has suffered from a work-related injury is lawfully entitled to compensation. The state provides laws detailing the necessary information that an injured worker should follow to obtain their compensation. One of the problems with the law is its complexity, which includes strict procedural guidelines that are confusing and need to be followed to the letter. At The Workers Compensation Attorney Group, we understand the frustration that may come with dealing with the workers’ compensation claim process, especially for workers who are yet to recover fully. Our team of dedicated attorneys are well-versed in California workers’ compensation law and have successfully represented numerous clients in and around Orange County, CA.
The state of California requires all employers to acquire insurance coverage for their employees. The purpose of the Insurance is to cover any work-related injuries irrespective of the party at fault. Regardless of fault means that the employee can claim and collect the benefits even if they did not have a cause of action from the personal injury. The benefits found in the workers’ compensation policies are defined in the California Labor Code. The code also provides the process required to claim the compensation. In most of the compensation cases, it is a three-stage process. It includes:
- Reporting the injury to your employer,
- Filing the compensation claim with the employer, and
- Recording and sending the 'application for adjudication of claim’ with the Workers’ Compensation Appeal Board (WCAB).
For the civil administration of the compensation claim process, the state of California established the Workers’ Compensation Appeal Board (WCAB). The board is a government body where employees can appeal for the alleged work-related injury, and oversee to the completion of the process.
Do I File a Lawsuit Against My Employer or a Workers’ Compensation Claim?
Generally, you are limited to filing a workers’ compensation claim if your injury occurred on the job. This means that you are restricted from suing your employer in a civil lawsuit. Nevertheless, there are five different situations where you can sue your employer because of a job injury. These circumstances include:
- Your employer physically assaulted you which resulted in your injury,
- The injury or illness was a result of something associated with your work, which your employer fraudulently concealed,
- The damage was from a product produced by your employer, but you were not acting as an employee as the incident occurred, causing the injury. This is referred to as dual capacity.
- Improper setup of a machine lead to your injury, and
- The employer did not have workers’ compensation insurance during the incident.
The Employee Deadline
Under Labor Codes 5411 and 5412 of the California law, an employee's deadline to file for the workers’ compensation claim starts on the day of their injury. Though the date is precise, it can be a little complicated if you have a cumulative trauma injury or a work-related disease such as lung disease. In these types of conditions, the time involving reporting and filing of the claim begins when:
- You missed work for the first time or reported the injury or disease to a doctor, and
- The physician examined the damage and realized that the injury or illness was work-related.
Reporting the Injury to Your Employer
It is crucial to get immediate medical treatment when you suffer an injury or illness. You are not restricted to get medical attention from any medical facility if the incident is an emergency. Otherwise, the employer or the insurance company has a medical network which you are expected to visit. You are required by law to give written notice to your employer within the thirty (30) days of your injury. There is a possibility of losing your workers’ compensation benefits if you do not provide the notice within the required period. One exception includes your supervisor knowing of the incident involving the injury.
Filing the Workers' Compensation Claim (DWC-1)
Under section 5401 of the labor code, your employer is required to give you a workers’ compensation claim form within one (1) day of reporting the injury or disease. The employer is also expected to provide information about your rights, potential eligibility for benefits, and the process required to get the benefits. If they do not give you the claim form, you can download it from the Department of Industrial Relations website. It is obligatory for your employer to fill their parts in the form as stipulated before posting it. Note that you are required on the claim form to fill out all the parts of your body that were injured. It is advisable to send a copy of the form to the insurance company and keep a copy for yourself as evidence.
The Insurance Company’s Response
After submitting your claim form, the insurance company is required to make the payments related to the medical treatment of your work-related injury. This is while they are scrutinizing whether your claim is valid or not. The insurer is responsible for any medical treatment relating to your damage up to ten thousand ($10,000) dollars; that is until they conclude their scrutiny. If the Insurance does not deny the claim within ninety (90) days from the day of submitting the form, your claim is automatically approved. This law is under the labor code 5402(b) and (c) of 2018.
Additionally, if you miss work because of your work-related injury or disease, the insurer is required to make temporary disability payments within fourteen (14) days after learning of the incident. The law is specific on this procedure as it tries to protect workers; further stating, in section 4650 (a) and (d), that if the insurer does not make any payments within the given days, they will get an additional penalty of 10%.
What if The Insurance Provider Denies My Claim?
Under the law, the employee has the right to appeal if their claim has been denied, or if they have some disagreements with the insurance company on their case. The process to follow after denial of your claim will involve:
a) Appealing a Denied Workers' Compensation Claim
You may think that all is well once the insurance provider has started disbanding the benefits, or the fact that your injuries were minor, and you did not have any differences with your insurer. This could be far from the truth. It is essential to note that disagreements are frequent during the compensation process, and your medical state could change. The situation could exist even if you filed the claim through your employer, which is the reason for applying for adjudication of claim to the WCAB. Opening the case with the WCAB means that your case will be heard in a civil court. The law gives the injured employee one (1) year to apply. However, the calculated time may start from the date of your injury, the last day you received medical benefits or the last day of your temporary disability benefits.
Occasionally, the courts have also found out that the employee may take longer to file the forms because the insurer advanced payments related to the medical expenses. If this is the case, the law gives the injured employee five (5) years to apply for adjudication of the claim. The filing starts five (5) years after the date of the injury or illness.
If the injury resulted in the death of a loved one, you would be seeking death benefits. Nevertheless, death benefits are under one condition; you were a dependent of the loved one. The law gives you one (1) year to apply for adjudication of the claim.
b) Declaration of Readiness to Proceed
This part involves a civil court and is the second part after filing the WCAB-1 file. If the employer is ready to request the hearing in front of a civil judge, they will have to register a "declaration of readiness," for them to proceed. The process will also require all the relevant medical records and other materials associated with the insurer on their dispute.
c) Settlement Conference
Before the injured employee can have a hearing, they are obligated to participate in a mandatory settlement conference. The process will involve the employee and the insurance company, where they will discuss the disputes in front of a judge and come to a settlement agreement. In case the two parties do not agree with this point, the case will move forward to a pretrial conference and a hearing.
d) The Workers’ Compensation Hearing
This procedure is quite similar to a trial, but it does not have a jury. All the involved parties will have to present their evidence on the case, witnesses will testify, and finally, the parties will make legal arguments about the incident. From this perspective, no party will be able to bring up any new form of evidence that they have not shared during the mandatory settlement conference.
e) Petition for Reconsideration
The case will end, and the judges will come to their ruling. The judge will, however, not state the verdict, but will mail the written decision to both the parties. Besides, if an employee is unhappy with the results, they have the right to file a petition for reconsideration. The appeal is with the WCAB and has to be completed within twenty (20) days after receiving the mailed decision. The WCAB panel has the final decision on whether to accept or deny the petition, which will be based on the evidence. Furthermore, if the board grants the request, they will have to issue a verdict that can either change, affirm, or reverse the court's decision or award.
Note that though the panel has the final ruling, if their decision is against the injured employee, they can move forward to appeal before the court. The steps involve filing a petition with the California Court of Appeal in the district, the employee lives. The final step if the courts deny the claim is to try another request before the California Supreme Court.
Missing the Deadlines
For most employees, the process might be frustrating, as it requires time and patience. If the employee did not file any of the needed files, workers’ compensation claim or the WCAB, it is of important they contact a workers’ compensation attorney. This is because the law is quite complicated in this kind of situation, though there is a specific circumstance the employee will be excused for missing the deadline, or the period will be extended. An experienced worker compensation lawyer will explain more about the laws and how they apply in this circumstance.
Frequently Asked Questions Regarding the Workers’ Compensation Claim Process
I do not have an attorney representing me, and I don’t agree with the doctor’s report on my injury. What should I do?
The injured employee can request for a medical evaluation from another physician referred to as a qualified medical Evaluator (QME). This can result from the following situations:
- The employee's claim has been denied or delayed, and they require a medical evaluation to inquire whether their claim is payable,
- To ask whether the injured employee is permanently disabled or they will need future medical treatment or
- There is a disagreement between the employee and the physician about treating the work-related injury, work restrictions, or TD-status. Note that the QME cannot be used to comment on a request for medical treatment.
In case the employee is represented, the attorney and the insurance administrator may agree on a physician to treat and examine the employee. The first step is by completing the panel request form (QME 105) and mailing the form to the DWC medical unit. If you do not know the kind of physician to examine the injury, you can inquire from your current physician. The process can take twenty (20) days to be processed, upon which the DWC medical unit will mail a list of QMEs to the employee and the insurance company.
The injured employee has ten (10) days from the date the form was printed and posted to choose a QME from the list, make an appointment, and inform the insurance company on their choices and the dates of the appointments. Otherwise, if the employee does not complete the task within the ten (10) days, the administrator will pick a physician of their choice and make the appointment.
What if I am an undocumented worker?
The California law is quite specific to this problem. All the rights in the labor code apply to all the undocumented workers. However, it is illegal for any organization or employer to return an undocumented worker to work, knowing they are undocumented.
My employer does not have workers’ compensation insurance; what do I do?
It is strictly required by the law that every employer in the state of California to have a workers’ compensation policy. The policy is with a licensed insurer, where they are to deliver the associated benefits to their staff when the need arises. This also a necessity to all the small companies with few numbers of staff. However, if this is the case, the California state will refer the injured employee to the Uninsured Employers Benefit Trust Fund (UEBTF). The benefit fund acts as a fallback, which helps deliver the funds for the injured employee.
I was fired before I filed the claim, what do I do?
If an injured employee is claiming an injury after being terminated or got a notification that they are being terminated, they will have to show the following:
- a) Their employer was notified of the damage before the termination,
- b) There exist medical records before the termination, which show the evidence of that injury,
- c) The employee’s injury happened after they were notified that they were being let go before the last day, or
- d) The employee's injury is specific because it occurred over some time. Where the employee did not suffer any effects from the damage until they got the notice of being terminated.
In case the injury is considered as psychiatric; the rules tend to be a little different where they follow labor code section 3208.3(e). Thus, the injured employee has to prove that:
- a) The injury occurred after an extraordinary event,
- b) The injured employee had notified their employer of the damage before they proceed to the termination,
- c) There is evidence of medical records before the employee was terminated, which proves the injury,
- d) The injury involves sexual or racial harassment, and
- e) The day the injury happened was before the date of the layoff, not just the notice of dismissal.
What is FELA, and how does it differ from the workers’ compensation?
Under workers’ compensation, the injured employee can claim their lost wages and medical expenses. This process does not require any evidence to show employer negligence as part of the contribution to the work injury or illness. FELA is quite different since it requires that the injured Railroad employee prove that the employer negligence contributed to the injury. This can be from defective equipment, unsafe working conditions, or actions and activities of other railroad staff and contractors.
Another difference is FELA; the injured railroad employee has to file their case with the state or federal court while the workers’ compensation files their claim with the associated insurance company that provides the benefits.
What is the meaning of comparative negligence, and what impact does it have on the FELA claim?
Comparative negligence is a type of defense used by the railroad company to show that the negligence was partly your fault. After everyone has given their statements in a FELA lawsuit, the jury will make its verdict as to who is responsible for the worker’s injuries. This method assigns a percentage of fault to the parties involved; the percentage will be used to award the injured employee for the damages.
An investigation by the California Division of Occupational Safety and Health (DOSH) showed that my employer had violated the Occupational Safety and Health Administration (OSHA) regulations before my injury. How does this help my case?
If your employer violated the OSHA standards, your compensation attorney would have a much easier time proving your case. This also means that you can sue your employer if you decide not to take the compensation. For a railroad worker, this proves negligence from your employer's part and would prove your case in a civil court.
How do I know if I am an independent contractor? Am I covered under workers’ compensation?
The term independent contractor has no set definition; the labor enforcement agencies and the civil courts will explore several factors to determine whether you are an independent contractor or employee. Some of the employers have been known to misclassify their workers as independent contractors to circumvent workers’ compensation and other responsibilities. You should note that just because your employer says you are an independent contractor and does not provide you with a workers’ compensation policy, it does not make that point right. The difference between an employee and an independent contractor is that a contractor has control over the work they are assigned to, but an employee does not. Some clues that you are not an independent contractor include the fact that your employer:
- a) Has to control over the details of your work,
- b) Has the right to terminate you,
- c) Pays wages on an hourly term,
- d) Makes deductions for social security or unemployment, and
- e) Obliges to you working at specific periods.
Find a Workers’ Compensation Attorney Near Me
A workers’ compensation claim can be complicated and confusing to a layperson. Additionally, there are numerous compensation claims each dedicated to diverse employees. Having an orange county workers’ compensation attorney on your side could make a difference in the rigorous procedure. Feel free to schedule an appointment at The Workers Compensation Attorney Group located in Orange County, CA, or call our Long Beach work injury attorney today at 562-485-9694 to talk to one of our knowledgeable attorneys regarding the workers’ compensation claim process.