Workers' compensation is a no-fault system in California that offers compensation to workers with work-related injuries and illnesses. However, the process of receiving workers' compensation benefits is not always easy because there are strict guidelines and timeframes to observe. Your claim could even be denied if you make certain errors when applying. This may leave you frustrated, without money, and no job. That is why you need to consult an experienced law firm like The Workers Compensation Attorney Group to help you understand your rights as well as your employer's responsibilities in the compensation process. After many years of practice, we pride ourselves as a renown workers’ comp firm in Long Beach, California.
A Brief Overview of California Workers' Compensation
Under the workers' compensation system in California, all employers should have insurance that offers benefits to workers who suffer on-job injuries. This strikes a compromise between the employees and the employer. Workers receive benefits irrespective of who is accountable for the accident and in return, the employee is not allowed under the law to sue their employer.
Which Employers Require Workers' Compensation Insurance?
In California, every employer, even those with only one employee, should have workers' compensation. The law requires business owners to have the workers' comp coverage for workers who regularly work in the state of California, even when the business headquarters are in another state.
The number of hours you work doesn't affect your right to workers' comp benefits. Therefore, it is possible to get an independent contractor workers' comp waiver. This is because the law considers anyone working for a company to be an employee.
If a lawsuit is brought, it is the responsibility of the employer to present evidence that the injured person is not an employee but an independent contractor.
If you are self-employed, you do not need workers' compensation insurance unless you're a roofer or work in hazardous conditions. Whether you need the coverage depends on your business type and the ownership structure. Therefore, it is wise to check with the California Department of Industrial Relations to know your liabilities and rights as well as be sure that you are insured adequately.
There are also instances where large companies choose to use their assets to cover their responsibilities under the workers' comp program. Companies that wish to self-insure should meet the strict Office of Self Insurance Plans (OSIP) requirements.
What Happens if your Employer does not Have Workers' Compensation Coverage?
If your employer does not have a workers' comp coverage, you can sue the employer in a civil court. You can also receive compensation from the Uninsured Employers Benefits Trust Fund. The state-administered agency is entitled to go after your employer for reimbursement.
Are there any other Instances when You Can Sue your Employer in Court?
Workers' compensation in California is a grand bargain, and you cannot sue your employer for damages. However, below are exemptions to this rule:
- You can press charges against a third party like a manufacturer of a defective product,
- When your illness or injury is aggravated because your employer lied about or covered the work-related injury, or
- When your employer injures you intentionally.
It is worth noting that the intentional conduct exception only applies to your employer's conduct, not your colleagues' or supervisor's.
What Injuries are Covered by Workers' Compensation Insurance?
Under the law, workers' comp covers only an injury resulting from employment; that is, a work-related injury. An injury does not need to occur at the workplace to be well-thought-out as work-related. For instance, workers' comp covers injuries that took place while running a company errand, attending an office related social event or a business trip.
Alongside sudden accidents such as falls and slips, illnesses, and injuries covered by workers' insurance include:
- Occupational conditions like lung cancer, heart disease or digestive system diseases as a result of workplace conditions, and
- Cumulative trauma like stress and repetitive strain injuries develop over time as a result of doing the same physical task over and over.
Nevertheless, workers' compensation does not cover injuries resulting from the use of illegal drugs or drunkenness. The law also denies the entitlement to coverage if conditions involve misconduct like self-inflicted injuries, injuries that occurred when committing a severe offense or injuries that originated from a fight that you started.
Different Types of Workers' Compensation Benefits that Every Employer Should Offer
Workers' compensation insurance pays for medical expenses that are essential to treat your work-related illness or injury. Generally, this covers hospital bills, medication, doctor's visits, surgeries, and equipment like a particular vehicle or wheelchair to assist you to cope with the injury. There are also instances where workers' comp covers services such as pain therapy, acupuncture, and counseling.
Your employer will also award you rehabilitation benefits for therapeutic and medical care like physical therapy. This is meant to assist you in managing as well as recovering from the injury. The rehabilitation benefits also cover any training you require to acquire the abilities and skills needed to go back to your job.
If the injury hinders you from going back to your previous job, the law allows vocational rehabilitation benefits that cater to retraining, evaluation, and tuition to help you qualify for another job.
Disability benefits are supposed to pay compensation for the lost wages when the work-related injury makes it hard for you to go to work. Depending on the type of disability, these benefits fall in either of the following categories:
- Temporary total disability
Temporary total disability completely stops you from working but for some time. You stop receiving temporary disability payments once you recover or the treating doctor decides that you have reached the maximum recovery.
- Temporary partial disability
Temporary partial disability hinders you from performing some of your regular job functions for some time.
- Permanent partial disability
Permanent partial disability takes in some permanent damage.
- Permanent total disability
Permanent total disability is awarded if you suffer permanent damage that is very extensive such that you cannot return to your previous job.
Workers' Compensation Death Benefits
Employers are also supposed to award death benefits to relatives of an employee who died due to a work-related injury or illness. These benefits are intended to compensate the deceased's dependent family members (spouse and children) for the loss of financial support. It also includes funeral expenses.
Posting Notices and Advising Workers of their Legal Rights
Apart from having insurance that covers injuries resulting from a work-related accident, every employer in California is required by the law to display several notices in the workplace. These posters are meant to inform you of your employment rights, such as how to file complaints and how to report a violation of employment rights. Employers should post posters with information on both federal and state employment laws. Failure to post these notices could lead to severe penalties.
Common federal notices include:
- Employee Right under the Fair Labor Standard Act
- Employee Rights and Responsibility under FMLA (Family Medical Leave Act)
- Employee's Rights under Uniformed Services Employment and Reemployment Rights Act
Employers should also post the following California employment law notices:
- Payday Notice
- California Minimum Wage Order
- Injuries Caused by Work
- Whistleblowers are protected
- Emergency Phone Numbers
If a significant number of your colleagues speak another language other than English, your employer should also post notices in the foreign language.
These notices should be posted in all work locations and, which are conspicuous and accessible, where applicants and workers can see them. Common posting locations include near the office entrance, at the human resource office, lunchroom and highly trafficked workplace areas like a copier, vending machines, and kitchen.
Issue Claim Forms to Injured Workers
Your employer should issue you with a workers' comp claim form within twenty-four hours after notifying them of the on-job injury. Even if you have not issued your employer with this notice, they should still provide you with the claim form as long as they knew about the injury.
Your employers should also give you a pamphlet with information about your rights under workers' compensation law. The pamphlet should have information about available benefits, returning to work, and how to bring a lawsuit. If possible, this information should be provided before you seek treatment. Some companies include this information in the employment packet for new employees.
Your employer should fill out the injury report with you correctly and completely before submitting the claim to their insurance provider.
Additionally, your company should cooperate with a request for more information from their insurer. Moreover, if necessary, they should facilitate communication between you and their insurance provider. The insurer should keep your employer informed throughout the compensation process as well as seek your employer's approval of any settlement that is offered to you.
If your employer fails to ask you about the injury or does not fill out the paperwork, this could be a red flag. It is, therefore, essential to have a paper trail with your local labor office so that you can receive benefits. Moreover, medical expenses can go up, and you should get the necessary support when you need it.
Comply with the Workers' Compensation Board
Your employer should comply with the request for more information regarding your injuries by the workers' compensation board. Basic information requested includes your earning statement before and after the injury, reports of the date of your return to work, and reports that determine your work status after the accident.
Your employer should also submit documentation to California's workers' compensation board. This applies to all job-related injuries, even when an employee is not seeking workers' compensation benefits.
Provide Immediate Medical Attention to an Employee with a Work-Related Injury
Your employer should help you get medical treatment immediately after an accident, even if the injury seems minor. It also means seeing a physician once you experience a symptom that is as a result of your work responsibilities or toxic exposure in your job.
First, getting prompt treatment helps you recover faster. Secondly, the earlier you seek treatment, the reduced the chances of your employer's insurer to claim that the injury was not work-related.
Provide Medical Treatment if You Are Not in a Position to Choose a Doctor
Reasonable medical attention is a valuable workers' comp benefit. That is why your employer should have a company doctor if you are unable to choose. The treating doctor's opinion carries substantial weight in your compensation. Unlike a physician who examines you once, the treating physician monitors you over time. This helps the doctor to have a better understanding of your injury, your medical needs, ongoing physical limits, and the possibility of recovering fully.
Moreover, the doctor makes crucial decisions that will have a direct impact on your benefits and recovery, such as:
- Referring you to specialists,
- Determining your work restrictions,
- Deciding your permanent disability level, and
- Presenting evidence in your case.
Employers have a Responsibility to Maintain Workplace Safety
Under the California Occupational Safety and Health Act of 1973, every employer should offer and maintain a healthy and safe workplace for all their employees. Employees should also be introduced to the safety rules and regulations they should adhere to during work orientation. Usually, this is done by human resource personnel or a compensation and benefits expert.
Moreover, every company should have a health and safety manager assigned to deal with all workplace conditions as outlined in the workplace safety certification. Also, the Occupational Safety and Health Administration (OSHA) requires employers to do the following:
- Inform all employees of possible hazards that are likely to happen through precautionary labels, color codes, training, emergency alarms, and chemical information sheet,
- Safeguarding and bookkeeping of medical records associated with work-related illness and injuries that require immediate medical attention,
- Run a series of tests to ensure everything in the workplace is safe,
- Perform medical screening exams and procedures to make sure maximum health for employees,
- Update illness and injuries records, citation bulletins, and OSHA posters in conspicuous areas where most employees can read as well as review,
- Report to OSHA within eight hours if an on-job accident occurs, when there are at least three workers sent to a medical facility for emergency or when there is a fatality, and
- Avoid discrimination or retaliation.
Under workers' comp law, employees with work-related injuries shouldn't be discriminated. In other words, the law protects the employee from discrimination, unfair treatment, or being fired for bringing a workers' comp lawsuit.
Other illegal reasons for discrimination include:
- Filing a claim with the California Division of Workers' Compensation (DWC),
- Announcing an intention to file a workers’ comp benefits claim,
- Acquiring a disability rating from a doctor,
- Missing work as a result of the on-job injury,
- Settling a workers' comp claim with your employer, or
- Winning a workers' comp award.
It is also unlawful for your employer to threaten or fire you if you testify on behalf of your colleague in a proceeding.
What are the Common Forms of Discrimination?
Workers' comp retaliation has numerous forms as cited in claims against employers. They include:
- Removing work responsibilities from you,
- Firing you after filing the claim,
- Demotion or wages reduction,
- Failure to consider you for promotion,
- Finding reasons that prevent you from coming back to work,
- Application of force or threats to discourage you from filing the lawsuit, and
- Interfering with the application for workers' comp lawsuit process.
However, not every conduct that is detrimental to you is discriminative. Employers are allowed to adopt policies that apply to every employee irrespective of their disability. For instance, companies are allowed to require injured employees to make use of sick leaves when having a doctor's appointment provided the same requirement is executed on employers suffering injuries and diseases that aren't on-job.
Failing to reinstate you to your previous job can be equated to firing you. Additionally, you have a right to reimbursement for work benefits and lost wages caused by your employer's retaliatory acts.
The employer could also be required to give you a penalty. The penalty entails of a fifty percent increase in your workers' comp benefits up to $10,000. Typically, this penalty is awarded even when the retaliation didn't cause you a financial loss.
Other remedies available include Fair Employment and Housing Acts for disability discrimination.
However, there are two circumstances where failure to reinstate is not considered retaliatory.
- Permanent Disability
Your employer is not obligated to return you to a job that you can no longer perform. Your permanent disability could be used to conclude that you won't recover fully hence unable to perform your former job.
Nevertheless, the fact that the injury impairs your job performance doesn't validate the failure to reinstate you. Depending on the seriousness of impairment and nature of your job, your employer could be obligated to accommodate the disability caused by your injury.
- Job No Longer Needed
The law doesn't require companies to hold open a job opportunity for an unlimited period when the company no longer needs the job. Also, business realities and losses could compel the company to fire the employer.
There are instances when companies mask their retaliatory intentions by making false claims that the job opportunity is not available, or it would not be safe to return you to work. In this case, you need to prove that the company's claim is not valid.
What Should You Do When You Suspect Discrimination?
Do not be afraid to speak out when you suspect either you or your colleague is being victimized against for bringing a workers' compensation lawsuit. Every employee is entitled to compensation for on-job injuries, and retaliation is not tolerated in California courts.
If you suspect retaliation, don't say anything or show anger. It could be used against you in court. Instead, consult a skilled lawyer immediately. You could also ask your colleagues to be witnesses to the act. Don't forget to document any situations, conversations, or letters that support your claim.
ADA and Workers' Compensation
If you sustain work-related injuries, workers' comp should handle compensation for the injury so that a lawsuit isn't filed in court. Typically, you will take some time to recover from the injury before you can go back to your normal life and job. However, when the injury turns out to be a disability and hinders you from performing your work responsibilities, that is when workers’ compensation and Americans with Disabilities Act (ADA) work simultaneously.
A person with a disability is an individual with a mental or physical impairment that significantly limits at least one significant life activity. Common examples of major life activities include the ability to perform activities of daily living like personal hygiene and grooming, doing manual tasks, seeing, speech, hearing, and walking. For your company to make special accommodation arrangements, it should be determined that your disability significantly limits major life activities.
To be ADA-compliant, employers should make reasonable accommodation for employees living with a disability. These reasonable accommodations include modifying working hours, reassigning positions that require less physical effort and making the workplace easy to access. Your employer should make these accommodations arrangements once you go back to work; failure to do so may find them on the wrong side of the law.
If you are unable to perform your job functions even with reasonable accommodation, your employer could terminate your employment.
Report Possible Fraud
Your employer is also required by the law to report any possible fraud. If they have a reason to think that your claim is invalid, they should inform their insurance provider so that the insurer can investigate your claim application accordingly. However, if they suspect that you are receiving workers' comp benefits illegally or from your previous employer, they will call the insurance fraud unit.
Finding Legal Representation Near Me
When handing workers' compensation cases, The Workers Compensation Attorney Group is dedicated to maintaining our integrity and standards of excellence. Over the years, we have helped thousands of clients in Long Beach to get favorable results, and we are ready to handle even the most complex cases.
Our goal is to help you win your case and make sure your rights are not compromised. As a result, we offer a personal approach to every case. For the urgent attention that your case deserves, contact our Long Beach workers compensation attorney at 714-716-5933 to schedule your initial consultation.