Workers’ compensation benefits employees who are injured, but the California workers’ compensation system can be bewildering to employees who have never needed to claim benefits. This guide will help injured workers understand how the system works.
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Workers’ compensation is a mandatory insurance program that provides benefits to employees who are injured while working at their jobs. With rare exceptions, every California employer is required to purchase workers’ compensation insurance or to establish a self-insurance program that is approved by the State of California.
Almost all California employees are eligible for workers’ compensation benefits. Employers cannot pick and choose which employees to cover. Nor can employees be asked to give up their right to receive workers’ compensation benefits.
As a general rule, independent contractors are not covered by workers’ compensation. However, some employers misclassify their employees as independent contractors.
A worker who only works for one business, who is subject to close supervision by that business, and who is told when and how to perform the work might meet the legal definition of an employee and be entitled to workers’ compensation benefits, even if the business treats the worker as an independent contractor.
A worker who has been classified as an independent contractor and who experiences an on-the-job injury should seek legal advice if the worker wonders whether he or she should have been classified as an employee.
Job-related injuries are covered by workers’ compensation. An injury is almost always job-related if it occurs at work during work hours. The exceptions to that rule, such as an injury that occurs because two employees are fighting each other, are relatively rare.
An injury can be job-related even if it occurs outside of the workplace. For example, if an employer asks an employee to deliver a product sample to a potential buyer and the employee is injured in a traffic accident while making the delivery, the injury is job-related.
An injury can also be job-related if it occurs while an employee is working outside of work hours. For example, if the boss tells an employee to pick up lunch for the boss during the employee’s lunch hour, an injury that occurs while the employee is picking up that meal or taking it to the boss is likely to be regarded as job-related.
Driving to and from work is not usually considered to be part of employment, so traffic accidents while commuting are not typically covered by workers’ compensation. In some cases, however, an employee might be “working” while driving to work.
For example, if an employee is assigned to report to a job site that is distant from the place the employee usually works, an injury that occurs while commuting to that job site might be regarded as job-related.
If a job-related injury occurred as the result of a specific event (such as falling), it is almost always covered by workers’ compensation.
If the injury or medical condition developed over time, such as a repetitive stress injury, hearing loss, or a health condition caused by daily exposure to toxic chemicals, it is usually covered.
Since the onset date of injuries or conditions that develop over time is not always clear, they should be reported to an employer as soon as the employee realizes or suspects that the condition may be job-related.
If the injury is psychological rather than physical, it may be covered, depending on the cause and nature of the injury. A California workers’ compensation lawyer can help employees understand whether job-related psychological injuries are covered.
Workers’ compensation is usually the exclusive remedy for a job-related injury. That means an employee cannot usually bring a personal injury lawsuit against an employer for an injury that is covered by workers’ compensation.
It may be possible, however, to sue third parties if they caused the injury and were not employed by the injury victim’s employer.
In most personal injury lawsuits, the injury victim can only recover compensation by proving that the accident was at least partially the fault of another person. That usually means proving that another person’s negligence (or carelessness) was responsible for the injury.
That rule does not apply to workers’ compensation claims. Injured employees do not need to prove that their employer was negligent.
Even if an accident is caused by the employee’s own inattention or carelessness, the employee is usually entitled to receive compensation.
The workers’ compensation system was devised as a trade-off that protects the interests of both employees and employers. Employees gain the advantage of receiving benefits for job-related injuries without proving that the employer is at fault.
In exchange, employers are not required to pay damages for pain and suffering, and benefits paid are often less than an employee would receive if the employee could sue for a personal injury.
The workers’ compensation system also processes claims more quickly and efficiently than the court system. By using an administrative system rather than a court system, workers’ compensation saves money for employers and hastens payments to injured employees.
The California workers’ compensation system offers three primary benefits to injured employees: payment of medical expenses, income replacement through temporary disability benefits, and compensation for lasting injuries through permanent disability benefits.
Additional benefits are available for death and, in some cases, for permanent disabilities that prevent an employee from returning to work.
In addition, California law guarantees certain job protections to injured employees. Subject to certain limitations, an injured employee must be returned to the same or a comparable job after healing is completed if the employee is capable of resuming employment.
Employees who experience a job-related injury are entitled to have their employer pay their medical expenses.
Employees who follow required procedures, including advising the treating physician that the injury occurred while working, should not be billed for most medical treatment. Instead, those bills should be sent to the employer or to the employer’s workers’ compensation insurer.
Employees are entitled to temporary disability payments after missing three days or work or after an overnight hospital stay. Employees are entitled to permanent disability benefits after their injuries have reached a maximum stage of healing and the treating physician determines that they will never fully heal.
The California legislature has imposed limits on the number of chiropractic or physical therapy sessions for which workers’ compensation will pay. In addition, a claims adjuster may disagree with a doctor about the appropriateness of ongoing care.
When that happens, the injured worker should usually seek the guidance of a Los Angeles workers’ compensation lawyer.
If you have health insurance that is not provided by your employer, you may be able to predesignate a physician who will treat your job-related injuries. You need to do that before you are injured. There should be a poster displayed in your place of employment that explains how to predesignate a physician.
If you are not eligible to predesignate or have not done so, you must be treated by the physician or clinic that your employer or its workers’ compensation insurance company provides. When you report your injury, your employer can tell you where to obtain treatment.
Temporary disability benefits are a form of income replacement. The benefits pay 75% of your wages, subject to a minimum and maximum amount, during the time you are unable to work due to a job-related injury. Since the benefits are not taxed, they may be similar to your take-home pay.
Temporary disability benefits are paid until the injured employee is able to return to work, or until the employee’s physician determines that the injuries are no longer healing and will never completely heal. At that point, temporary disability benefits end and the employee can seek permanent disability benefits.
In most cases, temporary disability benefits cannot be paid for more than 104 weeks. However, employees are usually determined to be eligible for permanent disability benefits before reaching 104 weeks of temporary disability benefits.
Permanent disability benefits are paid after an injury becomes “permanent and stationary.” Permanent means the injury will cause a lasting impairment. Stationary means the injury has stopped healing and has healed as much as it ever will. Whether an injury has become permanent and stationary is usually determined by your treating physician.
Most permanent disabilities do not prevent employees from working, but they sometimes prevent an employee from doing the same kind of work the employee did prior to the injury. Employees who have a permanent impairment are entitled to permanent disability benefits even if they are capable of resuming their former employment.
When your physician determines that your injuries have become permanent and stationary (P&S), the physician writes a P&S Report that describes the lasting impairment, including any lasting pain, caused by the injury. The P&S Report also itemizes any limitations on work that the impairment causes, states whether the employee is able to return to his or her former employment, and describes any future medical treatment that will be needed.
If your disability was caused in part by work and in part by an event that is not related to work, the physician will express an opinion about how much of the disability is job-related. The physician then provides the P&S Report to the workers’ compensation claims adjuster. You are entitled to a copy.
If you disagree with a P&S Report, you and your attorney can follow a procedure to challenge the report. That procedure typically involves an evaluation by another physician who is chosen by your attorney and the claims adjuster.
You will receive a disability rating that is based on the P&S report. Claims adjusters and Los Angeles workers’ compensation attorneys frequently disagree as to what the disability rating should be.
The rating is based on several factors, including your age, the degree of your disability, and reduction of your future earning capacity. The rating is expressed as a percentage, with 100% representing a total disability. Most disability ratings fall between 5% and 30%.
After the rating is established, permanent disability benefits are determined based on a schedule developed by the California Department of Industrial Relations. Those benefits are paid over a period of time, although it is common to enter into a settlement that provides for a single lump-sum payment.
Surviving family members are entitled to a death benefit when an employee dies from a job-related injury. Employees with a permanent disability who cannot resume former employment and who are not offered a new job with their employer can receive a voucher for job retraining. They may also be eligible for a supplemental payment.
Report any job-related injury to your employer as soon as you can. Your employer should give or mail you a claim form within one business day after you report the injury. Complete the form and return it to your employer. A workers’ compensation claims adjuster will then be assigned to your case.
If you do not have a permanent injury, the process might proceed smoothly and you might not need an attorney. If you have a permanent injury, however, you may want to obtain legal advice before you settle your claim.
The kind of settlement you make usually depends on whether you will need future medical treatment. A Los Angeles workers’ compensation lawyer can help you decide whether you should receive disability payments (and payment for ongoing treatment) over time or whether you should settle for a lump sum.
Find out why you need an advocate. Call us at (818) 230-2428 for a free consultation.
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