A work injury in California may entitle the injured laborer to various types of remedies. California work injury attorney Steve Sweat addresses some of the more common questions related to work injuries in Los Angeles and the state of California.
Because so many accidents and injuries occur at the workplace or while a person is acting on behalf of their employer, the question often arises as to the difference between a workers compensation and a personal injury claim under California law. These are two distinct types of legal claims and sometimes there is overlap.What is a California Workers Compensation Claim and to What is the Injured Worker Entitled?
If a worker sustains an “industrial injury”, he or she may be entitled to receive benefits for that injury or injuries through the California workers compensation system. An “industrial injury” is an injury sustained during the course and scope of their employment (i.e. while doing a task for their employer or at their employer’s direction). This usually entitles the person to some basic benefits as follows: (1) Temporary Disability payments (under California Labor Code section 4653) for lost income while the injured laborer is out of work; (2) Payment of all medical bills; (3) a permanent disability award at the end of the case based upon a calculation of residual injury associated with each affected body part adjusted by the worker’s future earning capacity; and (4) Supplemental Job Displacement Benefit if worker cannot continue to perform his or her prior job function. If the industrial accident causes the worker’s death, his or her immediate family may also be entitled to death benefits under the law.What is the Process for Making a Workers Compensation Claim in California?
Under California law, the employer is required to provide any employee injured on the job with a workers compensation claim form within one working day after the claim has been reported. The employee is required to complete the “employee” portion of the form and should fully and completely describe each and every body part that was injured. Sometimes the employer fails to provide this form or information about filing a claim, in which case the worker can either obtain a form from Information and Assistance Officer or retain an attorney to file the appropriate claims paperwork on their behalf.Benefits of Hiring a California Workers Compensation Applicant’s Attorney to Assist With the Claim:
While many employers in the Golden State want to do right by their employees when they get hurt, many more want to simply try to save money by either not filing a proper claim and just trying to have the worker treated outside the system or by simply misleading or mistreating the worker. Being fired for getting hurt at work is illegal in California (NOTE: This is a violation of California Labor Code 132a and also may provide the worker with various causes of action for wrongful discharge of employment related to disability discrimination and/or medical leave ). Furthermore, as discussed above, it is unlawful for employers to not provide a claim form and advise employees of their right to seek compensation. Getting an attorney involved can accomplish the following:
- Protect your legal rights to medical care and benefits
- Be provided with good sound advice on how to maximize your work comp benefits
- Better obtain the evidence needed including medical reports and opinions that will fully support the claim
- Keep track of and comply with legal deadlines
- Have an advocate and a representative with the employer, their insurance carrier and in front of the judge at any Workers Compensation Appeals Board hearings
If the injured employee feels like the employer is withholding benefits or otherwise treating them unfairly, it is always best to at least consult with a lawyer for an initial free consultation. In addition, if a work injury causes some type of permanent disability, it is always advisable to get the opinion of an attorney prior to signing off on any settlement agreement that is permanent and legally binding.
Payment of Attorney’s Fees in CA work comp cases: Workers compensation attorneys work on a “contingency fee”, which means that they do not need to be paid up front. They will provide their services in exchange for a fee based upon the final disability award. The percentage varies but, is set usually at a maximum of 15 percent of the amount awarded.What is a California Personal Injury Claim and how is This Different From Workers Comp?
A personal injury claim is a claim for injuries sustained due to the negligence of another person or entity. This entitles a person to recover money for medical bills (present and future), lost income, loss of future earning capacity, property damage costs for either repairing or replacing any damaged property such as vehicles, and additional compensation for pain and suffering, the loss of enjoyment of life. (For a full explanation as to all damages recoverable in a personal injury claim in California click here).
The major difference between a work comp claim and a personal injury claim is the ability to obtain what are known as “general damages” in a personal injury claim. General damages are not awardable in a workers compensation claim. These “general damages” include the economic value associated with pain, discomfort, mental and emotional distress, inconvenience, grief, anxiety and related injury. Oftentimes, this is the most valuable portion of a personal injury claim simply because of the costs of medical treatment and lost income often pale in comparison to the emotional toll that a significant bodily injury can have on a person’s life including their work life, home life, and their personal relationships.Is it Possible for a Person to Have Both a Work Comp Claim and a Personal Injury Claim at the Same Time?
In a word, yes. It is not only possible but, happens more frequently than one might think. There are many common scenarios where a person may be injured on the job but, the injury may be caused by the negligence of a person or entity not directly associated with their employer. These situations include the following:
- Defective products including industrial machinery not manufactured by the employer.
- Car accidents or truck accidents or heavy equipment mishaps with forklifts or similar vehicles, when caused by a person not associated with the employer even if it happens while the employee is working, entitles the injured person to both workers compensation benefits from their employer and a full personal injury claim against the at-fault driver or their employer.
- Employment claims for sexual harassment, wrongful termination and other intentional conduct by the employer.
- Where the employer does not have workers compensation insurance as required by law, a personal injury claim may be filed against the employer for any on the job injury and negligence is presumed under California Labor Code section 3706.
Because it is possible to maintain both types of claims and pursuing a personal injury action may entitle the injured party to much more compensation for pain and suffering damages, it is crucial to consult a personal injury attorney. Many if not most workers compensation lawyers only practice in that sub-specialty as work comp involves practice before an administrative body (rather than the state or federal court system) and is very specialized. If both a work comp claim and a personal injury claim are filed, there are complicated issues regarding liens and reimbursement rights and other complex legal issues that absolutely require competent legal counsel. Therefore, it is important to retain a quality personal injury lawyer who is familiar with the interplay between the two claims and can maximize the amount paid to the injured person.How is a California Workers’ Compensation Settlement Determined?
Workers compensation claims in California end one of two ways: a judge’s ruling after trial or a settlement agreement between the worker and insurer. Voluntary settlements are the most common resolution – they represent an agreement of benefits that are made available to an injured employee. Typically, the benefits conferred are temporary disability (lost wages), permanent disability to compensate for permanent damage resulting from the accident, and medical care. In California, these come in the form of either a Stipulation and Award or a Compromise and Release.
Temporary disability benefits are given to an injured worker for lost wages due to their inability to work. Unless an insurance company denied the worker was injured, these usually are not part of a voluntary settlement because of the time it takes to agree on a settlement. Unless a permanent injury occurred, the worker’s health will usually have returned to normal. Benefits for permanent disability, on the other hand, are awarded when the work injury is unlikely to improve and based on the percentage of disability determined through medical reporting and records. A workers’ compensation insurer must begin to pay the worker permanent disability benefits at a pay schedule to be determined once it stops making required payments for temporary disability. Future medical care payments may also be factored into a permanently disabled worker’s compensation in a settlement.
There are pros and cons to both a Stipulation and Award (very much like a judge’s decision in court) as well as a Compromise and Release (also known as a lump sum payment), but their differences chiefly concern the coverage of future medical treatment and the right to reopen your disability claim. These issues and the decision to accept one settlement or another can be very confusing, so it is important to have the experienced California Worker’s Compensation attorneys at Steven M. Sweat, APC on your side to negotiate, explain the benefits and downsides of your options to you, and secure you the maximum amount to which you are entitled.Do I Have a Workers’ Compensation Case in California?
California laws require employers to extend workers’ compensation benefits to all their employees via insurance through a licensed state insurer to cover medical care, lost income, and potentially compensate for career-ending injuries for all injuries sustained at the workplace or illnesses contracted through work-related activities or job conditions. If you are injured at work or through your working conditions, you are almost always covered by workers’ compensation.
These benefits apply to you no matter who is at fault for your injuries or how long you have been on the job. Also, you do not need to prove fault to obtain workers’ compensation. Sometimes workers’ compensation will try to deny your complaint because they claim the injury was not sustained at work, there is no evidence of injury, or you can return to work – these denials can all be appealed. To ensure you file your claim properly or navigate the appeals process, contact our experienced California workers’ compensation attorneys at (866)-966-5240 or through our Contact Page today.How Much Does It Cost to Hire a Workers’ Compensation Attorney in California?
Studies show that hiring a workers’ compensation attorney generally results in a higher amount of compensation for the claimant, so it is important to speak with our experienced California workers’ compensation attorneys as soon as possible to discuss your case. California has regulations and rules concerning workers’ compensation cases and how much attorneys may charge for fees so you can understand what you will pay once you have decided upon an attorney to represent you.
Injured workers in California must receive an initial consultation with a workers’ compensation attorney at no charge. If representation is agreed to, these attorneys generally operate under a contingency fee agreement – you do not pay unless they win your case. If you win, the attorney receives a percentage of certain benefits recovered for you, and that fee amount must be approved by a judge. Attorneys are entitled to a percentage (usually between 9 and 12 percent, but up to 15 percent) of a settlement, death benefit, or permanent disability award. Other benefits are not generally included unless the attorney had to fight an insurance company that did not want to pay you for things such as temporary disability.What If Other Parties in Addition to my Employer Were Responsible for My Workplace Accident?
If someone other than your employer or a fellow employee contributed to your injuries, you have the right to recover damages from them as well as your worker’s compensation claim from your employer. Third parties responsible for your accident maybe sued in civil court for personal injury under the theory of negligence.
Unlike workers compensation claims, which have limits despite their ability to compensate you for medical costs and lost income, third party negligence claims allow an injured worker to recover compensation for damages such as pain, suffering, emotional distress, and loss of consortium. Even if at first glance it may seem your workplace alone was at fault for your injuries, manufacturers of equipment you used, property owners, and agents of other employers such as construction site managers and drivers can all be contributors to your accident and injuries. To understand all the parties that may be liable, you should speak with an experienced California workers’ compensation attorney as soon as possible.How Long Do I Have to File a California Workers’ Compensation Claim?
California generally adheres to a 1-year statute of limitations for filing your workers compensation claim or an appeal. The time frame begins at the time you were injured. If you do not file before the year is up, your claim may be dismissed, and you may be permanently barred from recovering workers compensation. Additionally, there are other time limits of which you should be aware. Whether you were injured at work or gradually developed a work-related injury or illness over a period of time, you must complete and submit a DWC-1 form to your employer. Your employer is on written notice of your workers’ compensation claim and must submit the claim to their insurer on your behalf. The process can be complicated and there are additional deadlines for workers seeking to amend their claims, so it is best you meet with a workers’ compensation attorney to understand what applies to you. Get in touch with the experienced attorneys at Steven M. Sweat, APC today by calling (866)-966-5240 or through our Contact Page to set up your free, confidential case review today.