Workers' Comp Denied? Here are Your Next Steps

The Occupational Safety and Health Administration (OSHA) is mandated to ensure workplaces are safe and to achieve this aim, they have deployed over 2100 compliance officers to roughly 8 million worksites. Based on state-level and federal-level safety inspections, OSHA surmised that there are four leading causes of deaths and they were responsible for 59.9% of fatalities in 2017 alone. The "Fatal Four" include falling, being struck by objects, being caught between (e.g., machinery), and electrocution.

In 2018, Federal OSHA provided a list if most common citation standards that included the following:

• Respiratory protection

• Fall protection

• Powered industrial trucks

• Eye and face protection

• Managing hazardous energy

Noncompliance with any of these standards exposes workers to all sorts of injuries that can impact their lives enduringly or at least in the present. The Bureau of Labor and Statistics (BLS) tracks incidences of injuries, ailments, and fatalities related to work through two major initiatives: BLS Census of Fatal Occupational Injuries (CFOI) and BLS Survey of Occupational Injuries and Illnesses (SOII). Data collection and the ability to make very detailed analysis varies each year mainly due to fluctuating levels of participation and other factors like industry concentration.

Seeing the dire consequences of workplace injuries, it is expedient that you pursue a compensation claim relentlessly so you can get the best possible medical treatment. Even a seemingly small injury could have ripple effects down the line after you are no longer in the company's employ.

Knowing what role your employer plays in such litigations starts with understanding what workers' compensation means. Workers' compensation is an obligatory insurance plan that is for all employers even when they have just one employee. If you drive a garbage truck for a startup company, they are legally bound to protect your well-being with this insurance, ask for it.

The State of California mandates employers to submit any compensation claims with their insurance providers, and this must happen within 24 hours of said injury. If they delay in filing inside this timeframe or refuse to register altogether, this is a major red flag that could mean their intentions of honoring your claim are low. They could also be shielding themselves from paying you what you deserve and instead strike a deal and unknowingly agree to unfair compensation.

Laypersons are not as versed with the law and understandably so, and this is where an experienced workers' compensation attorney comes in to fight for your best interests. We guide workers through the process of filing claims and subsequent appeals in case a claim is thrown out. An attorney will also investigate your case and determine what you are potentially owed and not just medical bills. The specific benefits you are owed

• Medical Care

  This expenditure is paid for by your employer to facilitate recovery from any bodily harm or ailment that is directly attributed to your job. It caters for doctor appointments, lab, and other tests, prescriptions, equipment, and travel expenses that you sensibly incur in the quest for treatment.

• Temporary Disability Benefits

  These are financial reimbursements that you are entitled to counter the loss of income when your injury stops you from economic activities during the recovery process. Such payments are calculated based on the wages you typically earn.

• Permanent Disability Benefits

  You are entitled to these payments if you don't recover fully and your injuries lead to long-lasting impairment of physical or mental function as measured by a qualified physician. You will need backing from proper medical records to justify this assertion.

• Supplemental Job Displacement Benefits

  This benefit is essentially a coupon to pay for refresher training or hone necessary skills, and only workers who qualify for permanent disability benefits are eligible for this voucher. In this case, your employer is not required to reinstate you, and neither do you return to work for them in any capacity. You may also get a one-time payout as stipulated by the Return-to-Work Supplement Program.

• Death Benefits

  If your loved one met their death in the line of duty, surviving relatives like a spouse, children, or other legally accepted dependants are entitled to this payment.

Workers' compensation is a "no-fault" situation, so the aggrieved party (you) is entitled to payment without having to prove who is to blame for the accident. Despite your best efforts to get reimbursement, an employer reserves the right to refute a claim under certain circumstances. Claims for injuries or death of an employee may be turned down for the following reasons:

1. Filling a compensation claim late

   The state of California allows workers up to 30 days to report a worker's compensation claim. If you delay filing a claim within this duration, your request may not be honored. If you delay beyond this application window, there must be a good reason to justify this. Sometimes symptoms of injuries may not manifest on the day you get hurt or even in the days following, but workers are highly advised to file a report immediately the damage occurs.

2. Filing a claim after being fired

   Employees who file claims after they are dismissed or quit on their own accord draw suspicion as the insurance company may perceive that you are opportunistic. They may also assert that you are not forthright about the cause and the degree of your injuries especially when you are unable to work. Does a broken femur keep you from a construction job several months down the line? Such are the questions they may pose to invalidate your claim after leaving the company.

3. Claims that your negligence caused the injury

   If your injuries resulted from something you did or did not do, then you don't have a right to receive compensation. For instance, you could have failed to adhere to safety protocols such as wearing personal protective equipment (PPE) when performing a specific task. Ignoring reasonably written procedures which the employer has displayed in plain sight, e.g., "do not enter this area…" is yet another reason for refuting claims. If you skipped assigned duties and this action was proximate to said injuries, e.g., failing to check tire pressure before driving, the insurance company will see this as negligence.

4. Being intoxicated when the injury occurred

   Not circumventing rules about your job is not enough to negate injuries in the workplace. If you were found to be intoxicated either by alcohol or chemical substances when operating equipment, then damages arising from this are considered self-inflicted. This point is debatable if no breathalyzer was onsite or if you claim you were legally taking prescription drugs. Challenging this accusation by your employer's insurance company will require providing substantial evidence that having drugs in your system did not impair your judgment at the time of the accident.

5. Lack of dependable eyewitnesses

   It is vital that you have witnesses who can corroborate your version of events. Witnesses could be your immediate supervisor, peers, passersby, or other people who saw the accident firsthand. If you find yourself alone, get a medical examiner to check your injuries, so they are consistent with what you are claiming. They should provide a written report verifying your story. Failure to provide evidence or witnesses may adversely affect your worker's compensation claim, and the case will be dismissed.

6. An employer may dispute your account of events

   Without reliable witnesses to back up your version of events or at security camera footage, your employer may challenge your recollection of what transpired right before, during, and after the accident. They are hoping to make the accident appear to be your fault and possibly intimidate you, so you agree to avoid negative repercussions like being fired or other unbecoming behavior. Be mindful of what you share with fellow employees as giving varied accounts is a real cause for concern.

   Coworkers are likely to contrast notes and notice a pattern of inaccuracy, and if they are called upon to testify, things may not go well for you. Sharing potentially incriminating details with a coworker could be your downfall so be discerning about trust. Hiring an attorney is expedient as they can be present during questioning or liaise with your employer and the insurance company, to oversee interviews.

7. Refusal to divulge medical your records

   As mentioned previously, medical records about the injuries at hand are vital in proving your claim. The insurance company may also ask to examine your medical records to review information about pre-existing conditions that may affect your reimbursement claim. If you decline to share these documents and complete all the necessary paperwork, the insurance officers may use this as grounds for dismissal. Without enough information to process the claim, any follow up is deemed a waste of resources.

8. Not receiving medical treatment

   All injuries that are entitled to workers' compensation must be treated by a qualified doctor including stress-related injuries as these are covered in California. Pursuing a claim sans supporting medical records draws suspicion, and the insurer can accuse you of faking your injury to claim benefits. If you procrastinate seeking help and end up being laid off – due to nonrelated issues, for instance – the insurance company is likely to view this as seeking vengeance. After all, their primary job is to protect their clients' interests and subsequently, their financial welfare.

Failures on your part notwithstanding, your employer and the insurance company will be hard at work finding loopholes – or perhaps fabricating them – to keep you from being paid. Some of the unsavory tactics employers turn to comprise of the following:

• Dismissing employees without justifiable cause

• Persuading the injured staff to see a company-sponsored physician

• Claiming the injured worker is an independent contractor

• Advising staff to opt for other compensation methods like group insurance

• Misusing statements collected in the discovery process

Predesignating means furnishing your employer with the contact details of your preferred doctor or before the injury. Some employees divulge such details during hiring as a precautionary measure should accidents occur. Predesignating is done in writing by filling out a form from your employer or better still; you could use the DWC Form 9783 from the Division of Workers' Compensation. Most employers or insurance providers have standing contracts with a health care organization (HCO), and in such a case, you need to complete a different form.

The mandatory information to include is as follows: employer's name; your name; date; signature; and a statement explicitly saying that should help you get hurt at work, you designate your doctor to supply medical treatment.

NB: Not all workers can predesignate. This option is only available for workers with care coverage for medical conditions that are unrelated to their job, before encountering injury at work.

As you can see above, there are many viable reasons why an employer may not honor your claim even when they could be at fault for the said injury or death. Getting the bad news of a denied recompense claim is not the end; you can still fight this by having a neutral party deliberate on this case. You need to enlist an experienced workers' compensation attorney to appeal on your behest. Timeliness is essential in bettering your chances so file an appeal within 20 days of receiving an unfavorable decision from the insurance company.

In California, the Worker's Comp Appeals Board (WCAB) is responsible for hearing such cases where an employer's insurance provider denies a claim. Appearing before WCAB may also happen if the request is approved, but the terms of reimbursement are not agreeable and hence the need to negotiate further. In some instances, the insurer may not authorize surgery because of the financial burden on their part even when this medical procedure is central to your recovery process.

If your compensation claim is denied, your attorney can only file an appeal under the following legal guidelines:

1. If the decision or reimbursement made and filed by the workers' compensation judge, the appeals board overindulged or acted without its powers.

2. If the decision or compensation amount was reached through fraudulent tactics

3. If the evidence conflicts with facts gathered in this case

4. If the petitioner has found new evidence material that they could not have reasonably discovered and produced at the hearing.

5. If the findings of fact do not substantiate the order or award given to the claimant

California Code, Labor Code - LAB § 5903 requires that you file a Petition for Reconsideration with the particular WCAB where your case was heard. A Petition for Reconsideration is filed when a judge presides over a trial and gives his or her decision such as refuting a claim or awarding treatment. A Petition for Removal, on the other hand, is filed in cases where a judge decides before a trial hearing due to factors like discovery, time and place of meeting, evidence, etc. For instance, the judge may order the claimant to see a medical examiner as part of verifying claims.

It is imperative that you understand the difference between these petitions as filing the incorrect one will trigger an automatic dismissal. Let your attorney handle such issues to avoid missteps that could hurt your case. Filling rules must so the petition must be:

1. Filed under oath

2. Shared with other entities (your employer's insurance company)

3. Submitted within 20 days of the decision. If the judge's ruling came through mailed, you must file within 25 days

4. Presented at the Appeals Board District Office (in this case Orange County)

Upon following the above rules to the letter, the other side has up to 10 days to file a response or 15 days if the petition is sent via postal mail. The judge who decided under scrutiny has 15 days to modify their verdict (or not) after reviewing the case and setting a new date of hearing.

There are three possible outcomes for petitions; the Workers' Compensation Board can dismiss, grant, or deny the appeal. Filing a petition later than the allowed timelines is grounds for dismissal, and at this point, the outcome is final.

Denial happens when, for instance, the insurance company challenges the reimbursement figure but their evidence is weak, and so the judge upholds his/her ruling. This sort of thing is prevalent as insurers are in the business of profit making and therefore work hard to keep expenses low.

A petition is granted if the judge had mistakenly ruled, so the case is sent back for more evidence; for example, the medical examiner had advised waiting for a new report before ruling. Based on the latest evidence, the injured worker gets their claim honored.

If your case meets any of these criteria, you are duly invited to seek continuing evaluation until your employer's insurance company arrives at a more favorable judgment. Please note, you must file the appeal in the same district where the injury occurred and in this case, Orange County.

Once your application has been filed and presented to the suitable parties, your attorney will follow up until you both get a notice of filing. They will document every pertinent detail starting with the case number to serve as a reference point as the case progresses. Your attorney will then file a Declaration of Readiness to Proceed which is essentially an application for a hearing before a judge. The document looks something like this.

If the request is granted, you will convene with the judge, insurance administrator, and your legal counsel to discuss a possible settlement. This legal process of resolving a dispute is called adjudication. The judge goes over arguments and evidence from both sides to arrive at a decision that determines the rights, obligations, and financial implications of both parties. Your attorney does not have to attend this hearing but considering it is an appeal; you are strongly advised to have them present. Should the negotiations moderated by the judge hit a snag, they will schedule a trial date to be presided by another judge.

Due to the possible financial and legal implications involved, worker's compensation claims are subjected to constant scrutiny. To this end, be prepared for not-so-good outcomes even after filing an appeal. You are still allowed to request a further evaluation of WCAB's decision by asking for a "writ of review at California's appellate court within 45 days of receiving a decision by the appeal board. This effort is followed up with a similar petition for a writ of review at the court of appeal in the appellate district where you reside.

Unfortunately, the mandate of the appellate court is limited as it cannot overturn findings of fact made by the appeals board. The task here is checking if order by the appeal board was reasonable considering the facts presented by both parties – you and the insurance company.

If you are still braving the odds and the initial appeal yielded naught, you still have a fighting chance and be assured that your attorney has an unwavering desire to reach the best possible outcome. A Writ means taking a case further than Petition for Reconsideration at the Appeals Board, and this is heard at The California Court of Appeal or California Supreme Court. A Writ must be filed within 45 days of a futile Petition for Reconsideration and issues raised must have been made known at the petition stage. The stakes are high and whatever the California Supreme Court decides is likely to remain unchallenged, and this is why you need attorneys with a proven track record to prepare a winning appeal.

Time is of the essence when pursuing workers' compensation, and lapses in observing legal guidelines for filing your claim can hurt your case. If you were recently denied a reimbursement claim by your employer in Orange County, contact our Orange County Workers Compensation Attorney at 562-485-9694. Our team of legal experts will examine your case to see if the denial was justified or not, and then advise you accordingly. We shall strive to make things right, so your life resumes normalcy sooner than later, and more importantly, to ensure you get the medical attention you need for recovery.