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California Workers Compensation

You have been injured at work. You may have received a sudden, direct trauma, (specific injury), or you may have just noticed the pain growing gradually after doing the same type of work day after day (cumulative trauma). You know you are now in pain. You are having trouble keeping up, or just simply cannot do your work.

You are worried. You don't know what to do. What's going to happen with your job? You don't know if you will heal. You don't know if you will be able to continue working.

Maybe your boss doesn't believe you. Maybe you believe the doctors are working for your employer, or the insurance company. Worse yet, maybe you haven't even reported the injury because you're afraid what your boss will say, or because you don't want to be a "complainer".

Sound familiar? Then this article is for you. It is not a complete guide to California workers' compensation law, but it will get you started in the right direction.

The System:

The California Workers' Compensation system (notice it is no longer "Workmen's Compensation system") was started at the beginning of the 20th century as a compromise between workers and employers to provide very basic medical and disability benefits to all workers, regardless of fault. That means, no matter what or who caused the accident, if you are hurt on the job, with very few exceptions, your employer pays for your medical care.

Your employer is required by law to have insurance for workplace injuries. That means that your employer's insurance company is actually paying the benefits. Often the employer may act as if the money is coming directly out of his or her pocket. It usually isn't. The injury and benefits paid will usually affect your employer's insurance rates, but insurance pays your benefits, not your employer.

Are you covered by workers' compensation? If you are working for someone else, as his or her employee, then you are almost certainly covered for any injury occurring in the work place, which occurred while you were doing your job.

Even if you are an "independent contractor", you may be legally considered an "employee" for purposes of workers compensation. Check it out.

Report ALL injuries!

If you are hurt on the job, you MUST REPORT the injury IMMEDIATELY!!! Do not delay reporting any incident because you are hoping "you'll get better". Especially if you get hurt on Friday and then report it on Monday you will open yourself to the defense, "She/he got hurt over the weekend, not at work."

If you are hurt at the end of the day, DO NOT WAIT until the next morning. Report that you felt pain at work. If your supervisor is not there, write a note describing what happened and what part of your body you hurt. For example, "I was lifting/twisting/pulling/walking and felt a sudden pain in my wrist (back/neck/wrist/knee)." Date the note, and put it where your supervisor will see it when she/he next comes in.

Believe it or not, sometimes injuries happen and the injured person doesn't know what caused the pain. Maybe you wake up sore the day after moving an office, or lifting a header, or falling down some stairs. Maybe you have been working in pain for a couple weeks or months and haven't said anything, but now it's gotten to the point where you just cannot work any more. Maybe you just wake up in pain, but can't remember any specific incident. The rule is, "If you are hurting, REPORT IT", even if you think it will go away.

The Process:

Even before you are injured, write a statement to your employer that in the event you are ever injured at work, you want to go to your own private medical doctor and tell your employer whom that is. Put this in writing, as that it be put in your personnel file, and keep a copy of your request. This will allow you to go directly to your doctor when you are injured, rather than having to go first to the company or insurance doctor during the first thirty days.

If you have not notified your employer of your desire to see your doctor after an injury, you will have to go to a doctor of the company's choice for the first thirty days. After thirty days you can switch to your own doctor by simply writing a letter notifying your employer of your decision to exercise your free choice of treating physician. Be sure that you put the name, address and phone number of your doctor on the paper. Be sure to keep a copy. Be sure you tell your doctor that you were hurt at work.

After you report the injury, depending on the extent of the injury, you may be sent to a doctor. (If you have informed your employer of YOUR choice of doctors before the injury, you will go to the doctor of YOUR choice. If not, then you will go to the doctor of your company's choice.) You may just be given a couple aspirin and told to go home. If you are hurting, I recommend you always go to a doctor so you can document the extent and location of the pains you have. Be sure that you tell the doctor everything that is causing you pain. If you fell and hurt your back and elbow, and also have a headache, make sure you tell the doctor that you fell and hurt your back and your elbow and that now you have a headache. Be sure the doctor writes it down. If your record shows you only complained of pain after three or four weeks, even if you had the pain at the time of the accident, it will be harder to prove the pain is from that incident.

If you go to a doctor for more than just a simple bandage or first aid, your supervisor should give you a form to fill out and sign. It is called a DWC-1 form. Your employer should complete the form and return a copy to you. Fill in the form and give it back to your employer. Medical care should be paid for automatically. If you miss more than three days from work or have to spend more than a day in the hospital, you should receive a paid temporary disability benefits.

Remember, you will not receive workers compensation benefits unless you report the accident. Your employer must be told about the injury. Your employer then must report the injury to its insurance company. Someone from the insurance company will generally contact you within several days. You may tell them what happened.

The insurance adjuster may ask that you submit to a taped interview.

Remember, if you give a verbal taped statement; make sure that you tell the person everything. This tape will be transcribed and may be used against you if you do not tell the person everything that is going on with you. Make sure you tell the person that you are telling them everything you remember, but that there may be other things that you are not remembering at this time.

If you are asked to tell about your current limitations, be honest. If you exaggerate, it is very likely that the insurance company will have an investigator take video pictures of you. This could embarrass you, or worse, set you up for a claim that you have committed fraud by misrepresenting the extent of your injuries.

If they send you a medical release form, do not sign it without reading it very carefully. The medical release form is designed so that you are releasing them to receive all of your medical records. Sometimes those releases are so broad that you are allowing the insurance company to get our entire medical history even though it has nothing to do with your injury.

Benefits:

If you have a serious injury, you may be entitled to receive several different types of benefits:

    A. Medical benefits. You are entitled to receive all medical care that is "reasonably required to cure or relieve from the effects of the injury".
    (Labor Code Section 4600.) Who determines what medical care is "reasonably required"? Initially your doctor. Are you able to go to your doctor instead of the company's doctor? Usually you are required to go to the company's doctor for the first thirty days after you report your injury. After thirty days you can notify the insurance company in writing of your desire to change doctors and they will have to pay for the new doctor, if the first doctor believes you still need treatment.

    B. Temporary disability. Temporary disability (TD) has been described as a payment in cash designed to assist an injured worker while that person is not working. You are entitled to receive temporary disability payments if a doctor says you are disabled from working for more than three days after the date of the injury. The amount is 2/3 of your wages, up to a maximum of $490.00 per week. It isn't much for high wage earners, but it is something.

    C. Permanent disability. Permanent disability (PD) is paid to an injured worker who has been determined to have an injury that is bad enough to permanently limit his or her ability to work. Permanent disability is not paid while a worker is receiving temporary disability. You may ask for permanent disability "advances", if in dire straights. The insurance company has no obligation to pay advances, so don't count on them being paid.

    D. Death benefits may be available to family members or other dependents of the injured worker who died because of the work injury.

    E. Rehabilitation benefits may be available to an injured worker if a doctor determines that the worker is no longer able to return to their pre-injury job. There is generally a $16,000.00 maximum that will be spent to help you find a new career. These benefits include payment to a vocational rehabilitation counselor for his/her fees, payment of Vocational Rehabilitation Maintenance Allowance (VRMA). VRMA is paid at the rate of $246.00 per week. You may supplement this amount with PD advances, if you choose. Because the VRMA is usually less than the TD payments, I recommend that people who know they will not be able to return to their former job try to get involved with the vocational rehabilitation process as soon as possible, hopefully while they are still receiving the higher TD benefits.

This is not always possible, but it is preferable for obvious reasons.

When you have reached a stable point in your recovery, you are deemed to be, "Permanent and Stationary". This means that you are not improving or getting worse. When you are "Permanent and Stationary" you are ready to be evaluated by your doctor to determine your level of permanent disability, if any. When this occurs you are given a "rating". The amount of money you receive for your disability is linked to your rating. This amount has not, in some cases been changed since 1984. The amount you receive depends on the extent of your injury.

When you have received a rating, the adjuster sends you a settlement document. You may either choose to allow the company to buy out your rights to receive medical care, or you may choose to take advantage of the law which states that the insurance company is required to pay for all medical benefits you require that you can prove are reasonably related to cure or relieve from the effects of your industrial injury. I recommend that you talk to someone knowledgeable in the field before deciding how to settle your case.

This article was written and copyrighted by Michael J. Richter April, 2000.

He represents people suffering personal injuries, auto accident injuries, and work place injuries in the San Francisco Bay area, Santa Cruz, Monterey, and San Benito Counties.

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