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Below are some Frequently Asked Questions relating to Worker’s Compensation.
Q: What is workers compensation?
A: A workers compensation injury is defined in California’s Labor Code Section 3208 as any injury or disease arising out of employment. It can be physical or mental ( non physical) harm. To be compensable the injury must produce disability or medical treatment more than first aid. When an injury is compensable then workers compensation benefits are usually the exclusive remedy available to the injured worker. The system is designed to compensate injured workers for disabilities that occur on the job and to provide medical treatment that is reasonable and necessary to cure or relieve the effects of an injury. An injured worker does not have to prove anyone was at fault for causing the injury. The tradeoff for the employer is there are limited damages that are set forth by statute. No compensation is paid for pain and suffering and other general damages like those in personal injury lawsuits. However, wages are paid while the injured worker is off work and in some instances additional permanent compensation and job retraining are available.
Q: When is an injury compensable?
A: When an injured worker has a valid work injury it is compensable. The California compensability statute is Labor Code Section 3600. In order for a an injury to be compensable it must arise out of and occur during the course of employment. This rule is commonly referred to as AOE/COE. To determine if something arises out of the employment we look to the origin of the risk.. Did the risk grow out of work related activity, was it a mixed cause or was it purely personal? If the origin of the injury was purely personal then it may not be work related. However even personal comforts like going to use the restroom are considered to be work related because they are incidental to the employment.
Q: What should I do if I am hurt on the job or during the course of working for an employer?
A: You should take care of your injury and preserve your rights. This is done by reporting it to your employer or immediate supervisor and seeking medical treatment right away. As soon as you are aware that an injury or condition is caused or aggravated by your work, you should contact your employer and explain the circumstances of the injury or condition. In many cases, reporting an injury immediately to the employer results in the employer sending the injured worker for medical treatment. If none is provided seek out medical treatment on your own. Then contact an attorney. It is better to seek counsel before giving a recorded statement on your case. Never quit your job or resign following an injury. If you do your employer may not have to provide temporary disability or vocational rehabilitation.
Q: What if I’m not hurt bad enough to see a doctor, but then later develop a medical problem?
A: Unless you are dealing with a cumulative trauma injury the clock is ticking even before you get medical treatment. Any delay in reporting your injury, or seeking treatment for your injury, can raise suspicions and in some cases result in a loss of benefits. If your employer has knowledge of the injury that has the same effect of filing a claim. In order to preserve your right to receive compensation an Application fro Adjudication should be filed at the Workers’ Compensation Appeals Board (WCAB) within one year of the date of injury or one year from the date the last compensation was paid or medical benefit was received and paid by the worker’s compensation insurance company or their adjustor.
Q: What is the date of injury?
A: The date of injury is the date a specific accident occur. When a cumulative trauma injury is claimed such as carpal tunnel due to cumulative work activities over time different rules apply. In such cases the date of injury is one year from the date the employee knew or should have known they had suffered an injury and either missed time from work or received medical treatment.
Q: How do I file a claim and what responsibility does my employer have?
A: It is your responsibility to file all paperwork correctly. You can obtain forms from your employer or an attorney. If your employer has knowledge of the injury that has the same effect of filing a claim. But this is sometimes hard to prove so it is better to file using a DWC form 1 and keep a copy for yourself. It is also advisable to seek legal advice in all cases as a precautionary measure. The employer, and/or its insurance company, has unlimited resources to use to hire lawyers to defend every case. In cases where an injury causes time lost from work, you should definitely seek legal representation to protect your rights. Your employer is obligated to refrain from discriminating against you for having a work injury. Your employer, or the insurance company if the employer is not self-insured, must pay for your medical treatment, including prescriptions and mileage to and from the doctor’s office, and any other medical treatment or device designed to iimprove your condition. The employer (or carrier) must also pay Temporary Disability (TD) according to a statutory schedule to compensate you for time lost from work due to the injury. Also, it must pay for Vocational Rehabilitation if your doctor determines you will be unable to return to your work permanently. Depending on the seriousness of your injury, it may have to pay Permanent Disability. There are significant penalties that are sometimes available against the employer and insurance company for delay or other misconduct.
Q: How much money can I receive, and what about lost wages or future wages?
A: The amount of compensation allowed depends on the nature and seriousness of the injury. Typically, a temporary, total inability to work results in bi-weekly payments roughly approximate to two-thirds of your weekly pre-tax earnings. The maximum amount available is $490 per week, but will be less for those who earn less than $735 per week. Permanent disability generally depends on the degree of disability remaining after the doctor determines the injury has reached maximum medical improvement. The duration of permanent disability benefits is also set by a statutory schedule. These rates are increasing on January 1, 2003 according to a new schedule.
Q: What if I am permanently injured/disabled?
A: Although your injuries may be permanent and you may receive Permanent Disability benefits, if you are able to return to your date of injury job without limitations, the Permanent Disability is the extent of your benefit. There are guidelines used to determine permanent disability based on your age, occupation, work limitations, objective findings, and pain. This is the an area where a trained insurance adjustor can really minimize your recovery if you are not prepared. It takes extensive training to be able to rate and maximize recovery in this area. If you are unable to return to your date of injury job, and the employer is unable to provide you with modified or alternative work that pays up to 85% of your former wages than they must provide you with Vocational Rehabilitation.
Q: Can I sue my employer for my injuries?
A: Yes and no. You may bring an action before the CAB to obtain all the benefits provided in the Workers’ Compensation Act, and you may also pursue civil remedies for discrimination or wrongful termination or other civil wrongs that often occur after an injury even though they are illegal. If your injury arose out of your employment, the Workers’ Compensation Act in fact prohibits you from suing your employer for personal injury in most cases. You may only obtain Workers Compensation benefits for such injures. However, there are exceptions. In some cases both a civil lawsuit and a Workers’ Compensation claim may be filed against the employer. If a third party or defective product caused the injury then a personal injury lawsuit may be available as well. For example, when an employer asks an employee to drive on a work related errand, and a car accident occurs in the course of that errand, the worker may file a workers’ compensation claim against his employer, as well as a “third party” lawsuit against the other driver. If your employer was illegally uninsured or intentionally caused your injury increased worker’s compensation and personal injury lawsuits are available. You should always consult an attorney who is trained to recognize these other remedies.
Q: What will it cost me to retain a lawyer?
A: The fee to hire a lawyer is determined by statute. It ranges from 9-15% of the settlement amount, and is not taken out of the bi-weekly Temporary Disability benefits. The typical fee is 12%, but cases that require multiple filings with the CAB complicated legal matters or extensive work can justify a higher fee up to 15%. It will cost you nothing to hire the lawyer, and the lawyer works on a contingency fee, which means he or she only gets paid after your recover. The statute prohibits a lawyer from charging anything other than the statutorily authorized fee which must be approved by a Judge at the CAB.
Q: How long will it take to resolve my case?
A: Every case is different, and the length of time usually depends on the amount of medical treatment received. A herniated disc in the back requiring surgery often requires one year away from heavy work, though some physicians recommend earlier return to work. Once the medical condition is determined to be permanent and stationary, a speedy resolution of the benefits would be 4-6 months, though many cases take a year or longer depending on the aggressiveness of the employer or insurance carrier in trying to reduce the benefits for the injured worker. The underlying case can be resolved even If the employee is still enrolled in Vocational Rehabilitation.
Q: My claims representative seems very nice. Do I still need a lawyer?
A: While an injured worker may represent herself before the CAB, the employer and carrier almost always hire a lawyer in workers compensation cases. That lawyers job is to use every means available to assure the injured worker receives the least amount of benefits possible. Even nice claims representatives have supervisors whose only job is to reduce the amount of money spent on claims. In almost every case, the 12% fee to the lawyer is greatly outweighed by the increase in benefits obtained by the able attorney representing the injured worker and the aggravation avoided by having to deal directly with the carrier’s attorney. If you decide not to hire a lawyer at the very least contact the information and assistance officer. A service provide by the CAB.
It is important to protect your legal rights. Call (916) 922-9902 to speak with a Sacramento work injury attorney who will answer all your questions and provide a clear plan of action with your Sacramento workers compensation and/or Sacramento social security disability claim. Call Sacramento work injury lawyer Tom R. Johnson today.
If you or a loved one has been injured at work it is important to protect your legal rights.
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