Workers’ Compensation Injuries

In the state of California, a work injury entitles the injured employee with many types of remedies. Due to the vast amount of injuries and accidents that occur in various workstations and offices, questions always arise as to the dissimilarities between workers’ compensation and a personal injury claim in accordance with the state of California law.

In the event that you are employed by a certain company and you sustain an industrial injury, you are entitled to receiving benefits that are related to your injury. All this is done through the California workers’ compensation system. You need to know that an industrial injury is an injury that you got during the route and scope of your job or work (employment). For your injury you are entitled to certain rudimentary benefits:

1. California temporary Disability payments: this is found under the California Labor code section 4653. The code states that you should receive payments for the lost income while you were out of work from the work-related injury. This is usually up to one hundred and four (104) weeks (two (2) years).

2. Covering all the medical bills that are related to the injury.

3. Additional job displacement benefits if you cannot continue to work on the same job function.

4. Additional permanent disability benefit at the end of your case. The calculations are based on the body part the injury is associated with, and adjusted in accordance with your future earning capacity.

Additionally, when you are an employee and injured in your workplace, you are limited to seeking recovery by filing the worker's compensation claims. There is one problem with this: you cannot sue your employer in a civil court. However, there are some few exceptions that you have as an employee to sue for an injury:

1. The employer did not have an insurance cover for the worker's compensation insurance when your incident occurred. This follows the California labor code 3706.

2. The injury was from a power press machine that was improperly configured. This falls under the California labor code 4558.

3. Dual capacity. Labor codes 3602(b) one (1) to three (3), clarify that if you are injured by a product that is produced by your employer but is not acting as an employee at the moment and suffer an injury, then you can sue.

4. Your injury was as a result of an intentional physical assault by your employer.

5. The injury was provoked by something related to your job or task that your boss fraudulently concealed.

Most common injuries in the state of California are vehicle accidents, falls and moving of objects (lifting). Note that all injuries and illnesses that are work related are authorized to workers compensation benefits. The benefit will feature all one-time accidents, cumulative injuries and any illnesses that emerge from your job environment or in your job environment. Cumulative injuries are injuries that result from repeating the same motion on your job. Some of the common types of work injuries as reported by the United States Bureau of Labor and statistics include:

1. Overexertion,

2. Falls, trips, and slips,

3. Interaction with a dangerous piece of apparatus or falling entities,

4. Work-related violence resulting in injuries directly caused by another individual; and

5. Vehicle accidents.

In 1970, the Occupational Safety and Health (OSH) Act was created and passed by the Congress from the people’s outcry against the rise of injuries and deaths in their workplaces. The purpose of the act was a law that governed federal law on both occupational health and safety in the private and public sectors of the United States.

In the state of California, it is known as the Division of Occupational Safety and Health of California or DOSH. Its main mission was to set national standards in California that helped ensure the safety and health of the American workforce. The regulations and standards set by the OSHA agency are a must know for any employer and also the employee. They include the following:

• Your employer is given the general responsibility to cater to a safe working environment. Basically, the employer has to follow all the given regulations that manage their business’ trade. Example of this is, a construction company has to monitor the guidelines that are associated with scaffold or heavy types of equipment. That means various body gear and protective equipment.

• The employer or head is required to give a daily inspection of the work conditions and equipment, making sure that they fall in line with OSHA regulations.

• Your employer has the main duty of providing safety information; that details hanging OSHA posters or signs. The main intent for this is to provide you with safety information.

• Employers are to provide basic training to their employees. This allows them to handle the work and also be knowledgeable about any dangerous conditions while working.

Railroad workers are protected by the Federal Employer Liability Acts (FELA). The law is supposed to offer a lawful recovery for its employees as well as their families since railroad workers are prone to so many injuries on their jobs. It is a clear law and is specific to the railroad workers. Some of the serious injuries that are covered by FELA include but not limited to Head and Neck injuries, burns, broken bones, crush, spinal cord, and amputation among others.

The motivation for FELA was not legal claims alone, but also the provision of a set of standards that were uniform to the conditions at work and safety of the railroad employee for railroad companies. It is important for any railroad worker to understand the right to collect reimbursement for injuries associated with work under FELA act.

In accordance with the FELA act, you will have to prove negligence by your employer, which in turn led directly to your injuries. The main reason for FELA’s existence is to illustrate the employer’s failure at providing their railroad workers with safe working conditions. If the employer does not follow the regulations set by OSHA, then they are in violation of FELA.

All you need to show in this petition is that the injuries you suffered were brought about by the carelessness on your employers’ side.

Any effective lawsuit by a railroad worker will bring reimbursement for the following:

• Employee’s previous and future wages loss,

• Earlier and upcoming medical treatment,

• Pain, mental distress and misery in the past and future; and

• In case of death due to the injury, the significant other and their kids will receive the compensation or any surviving family if the victim does not have a family.

Many construction sites require the erection of scaffolding to reach high levels that go hand in hand with the structure being constructed, refurbished or painted. When they are properly erected, the scaffolding provides a safe working space for the most difficult places to reach. It is estimated that more than sixty-five percent (65%) of the construction workers in California work on scaffold conditions on a regular basis. It should therefore not be surprising when most of the construction accidents involve frameworks or any other type of lifting, ladders, and hoists. They are one of the gravest injuries and they result from either defective, improper installation or rationally safe working equipment. Some of the faults lie with the employees who do not wear protective equipment. Most injuries are from falling items onto the construction works from ladders and lifts.

Every single manager, construction worker or anybody involved in a scaffold setting has to comply with the OSHA regulations; with the basic being consideration of building and inspection.

1. Strategy and construction

   All the designs and erection of scaffolds have to adopt the OSHA requirements. The requirements involve the kind of equipment, rate capacity, methods used in the construction, and their use. Every scaffold and its equipment need to have the capability of holding its own mass up, and four times its proposed load without the signs of failure. The suspension ropes must have the capability of holding up not less than six (6) times its main proposed capacity.

2. Inspection

   The employers are required to have a well-trained individual whose work is to examine all the scaffolds and their components for any evident flaws before any work starts. The trained individual should also supervise any erected, dismantled or moved scaffold. All the equipment and gear that relates to fall protection should be examined by a trained individual before use. If any of them show visible damages or are worn out, then they should be detached.

   If these rules are followed together with the main OSHA regulations mentioned above, the result is a safe workspace for construction workers. If not, it could lead to serious injuries such as:

   • Traumatic brain injuries,

   • Spinal cord injuries,

   • Internal organs injuries,

   • Broken bones and;

   • Severe lacerations.

   It is recommended that you seek the help of a workers’ compensation attorney with proper years of experience for these types of claims and lawsuits. They should have the ability to investigate the liabilities at that construction site, mostly third party. They include but are not limited to the following: scaffolding falls, employee negligence, inadequate ground preparation, scaffold subcontracting, liability crane and electronic lift accidents.

   There are many injuries that are related to work and follow the same format of workers’ compensation claim but have not been mentioned above. If you are a railroad worker you might file under FELA. If you do not fall in that category, you need to follow the workers' compensation claim.

In the state of California, if you happen to suffer any injuries within your work area, you are eligible for workers' compensation act benefits. It is under the state law that your employer needs to pay for your medical treatment, all the partial wages that are associated with your injury and when you are away for the recovery. It is, however, your responsibility as an employee to file a claim in the required time frame.

Filing a workers’ injury compensation claim is a three-step procedure for any California resident:

1. You have to report the injury.

2. Have to file the claim with your employer.

3. Fill and file the application for a verdict of claim with the Workers’ Compensation Appeals Board.

Reporting the injury: Labor code 5411, 5412 of 2018

According to the labor code, the deadline for claiming compensation starts on the day of your injury. Even if the date is clear when an injury occurred, sometimes the matters are a little bit complex. Take an example of a cumulative trauma injury. In such a case, the reporting period and filing of the claim will start after the following conditions have happened:

• The first time you missed work or you met a doctor for the injury that occurred; and

• You realized or knew that the injury was caused by the work, and it was explained by the doctor.

Reporting of the Injury: Labor code 5400, 5402(a) of 2018

In the event that you suffer injuries at work, you need to first find medical treatment. if it is an emergency then you should seek medical care from your nearest hospital. If the employer or the insurance has provided a medical network, you can decide to see the doctor on that network. The keynote is that you should tell the doctor that the injury is work-related.

The next step is that you should report your injury to the boss. The labor code gives the employer thirty (30) days; that is from the date of your injury, to report the incident with a written notice. The consequences of not doing so will include losing the workers benefits. The code, however, does give some exceptions; if the employer or supervisor knew of the accidents, it is regarded as written notice. Any other delay could be more of a problem towards getting your benefits early.

Filing the DWC-1 form: Labor Code 5401 of 2018

Within the first day of your injury, your employer should hand you a compensation claim form which is known as DWC-1. It should give details on your rights and the eligibility of the benefits and the procedures to follow to get the benefits. Otherwise, if you do not receive the form from your employee you can download it from the DWC website. You should follow the instructions and fill the employee's portion of the document. It is advisable to get your employer to fill in their portion of the document as well. Mail the document to the insurance company and keep a copy of the document for future references.

Labor code 5402 and 4650: Insurance Response

If the claim has been submitted, the employer's insurance company will have to authorize for the medical treatment payments as they do their investigation on the claim. The labor code states that insurance is responsible for medical bills and are limited to a maximum of ten thousand dollars ($10,000). If the petition is neither approved nor denied within the ninety (90) days from the submission day, it is received as approved. This is under the labor code 5402 section c.

Labor code 4650 section (a) and (d) state that, if you end up missing work on the basis of the injuries, the insurance company should start depositing temporary disability benefits in your account after fourteen working (14) days. The fourteen days are after they have learned of the information. If they do not start the payments, reply to the compensation claim by denying it or start asking for more facts. They get an additional penalty of ten percent (10%) on temporary disability benefits.

Applying and Filing the adjudication of a claim

In case the insurance company did hand out the payments, most individuals think that everything is according to plan. If they were minor injuries, you perhaps were able to have a quick recovery and return to work, the result is that you did not have any disagreements with the services provided by the insurance.

But it is not all joy since disagreement is common and the medical conditions from your injuries may change. It does not matter if you filed for a claim with your employer, the disputes will have an impact if you opened a case with the WCAB through the filling of the WCAB-1 form (adjudication of claim). This should be done within the recommended one (1) year after:

1. The day the injury occurred,

2. The most recent day your employer provided the medical benefits or,

3. The last day you were provided with temporary disability benefits.

According to the civil courts, it may take you even longer to file the WCAB-1 form if it is associated with a workers’ compensation claim. If this is the case, then you have five (5) years from the day of the injury to file the WCAB-1; according to labor code 5410. Otherwise, if the insurance denied the claim, then you have one (1) year to file the WCAB-1 application. If it happened that the injuries led to the death of your loved one, the law gives you one (1) year to file the form from the date of the death.

1. What happens if I am an independent contractor?

   The act on workers’ compensation concludes that you are an employee. The employer will have the responsibility to prove that you are an independent contractor for them to deny the compensation benefits.

2. What if I am eligible for labor code 4850 section (b)?

   That means that you are a government employee and you are set under the labor code. You are entitled to a one-year (1) full pay as an alternative to temporary disability benefits. Additionally, there are some of the employees who fall in the category of hernia, heart disease or pneumonia. They get the presumption that the injury was related to their work (labor code 3212). If they are firefighters who on a daily bases are exposed to carcinogens and end up developing cancer, then the presumption is that the cancer was related to work. There are other presumptions special to other government officials and are found under labor code 3212 section one (1) to twelve (12) and 3213.

3. What if you are an undocumented citizen and you are an employee?

   Under the California rule, all the rights of the labor code also apply to you. This is under the California labor code 1171.5. It Is against the law for an employer to return the same undocumented employee to their jobs while they know the said worker is clearly undocumented.

4. What if my claim is denied? Who or how will I pay for the medical treatment?

   As an employee, you will be treated on a lien basis: meaning the treatment will be offered as a free service by the medical providers. The medical providers cannot force you to pay for the treatment and will settle with the insurance company.

5. I was fired before I filed the claim, what happens?

   For the injury to have occurred and they let you go or notify you to leave work, you will have to prove a couple of statements under the lab code 3600 section (a) (10). They include:

   • The employer had given you notice on the injury before the termination or discharge.

   • The evidence of the injury will be shown in your medical records preceding the discharge from work.

   • The injury occurred after the employer notified, they were terminating you; before the last working day.

   • The injury has occurred over a period of time and the effects were not from the day of the termination notice

6. What are some of the reasons as to why I was denied compensation?

   In regards to the workers' compensation, it will only cover the injuries that are under the course of employment. Here are some of the conditions that are not considered as work-related:

   • The employee was either under a controlled substance or drunk.

   • You were involved in a fight and you were convicted on that charge.

   • Participating in leisure activities that are not work-related.

   • You were traveling from or to work.

As you have noticed in this article, there are many problems that may occur when you are trying to file for compensation for worker injuries. There are specific guidelines to be followed which may force you to get yourself an experienced attorney. Here at The Workers Compensation Attorney Group in Orange County, we are focused on the compensation of our clients who have been hurt while on the job. Owing to the many years of practicing California law, we have gained the necessary knowledge on how to guide you. Call our workers compensation attorney at 562-485-9694 and talk to one of our attorneys here in Orange County, California.