Job Displacement in Worker’s Compensation Claim

Brad Nakase, Attorney


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JOB DISPLACEMENT BENEFITS IN CA WORKERS’ COMPENSATION CASES

Accidents happen and accidents at work are no exception. If you have been injured while in the course of your employment, you may be entitled to worker’s compensation.

 
What is worker’s compensation claim?

Worker’s compensation claim is an administrative pleading filed with the employer. It is different than other types of claim because the purpose or goal is for the employee to be compensated quickly. This though process arises because there are likely medical bills piling high and times the employee cannot work. Further, an employee may even suffer an injury so harsh, he or she is permanent hurt and cannot return to his or her position.


However, not all employers fall under this availability or remedy. In order for worker’s compensation to apply, the employer must have:

  • Insurance[1]
  • The injury occurred during normal business[2]
  • It must be understood this is the exclusive remedy[3] (cannot file then sue the employer personally) and

  • The fault of the injury does not matter as long as it was not done maliciously or willfully (employee set up a way to be injured and fell in order to receive benefits or an employer pushed an employee purposefully off a ladder).



Different types of recovery

If your employer meets the above requirements, you may be entitled to different types of compensation. These include: medical treatment benefits; permanent disability, temporary disability benefits,[4] and supplemental job displacement.[5] This article will focus on the last option, supplemental job displacement. Regardless of the compensation program chosen, if a worker’s compensation claim is filed, it is important to remedy this is the sole remedy the employee can use to recover.[6]

Job Displacement Benefits

Job Displacement Benefits affords the injured employee the opportunity to go back to school and gain an education for another job position. This arises when an employee is permanent disabled but can work in another position or industry.[7] If this path is taken, the employee is deemed as compensated and cannot further sue the employer.[8]


In order to recover under this program, the employee must meet a few requirements set out by the labor code, depending on when the injury occurred. First, injuries occurring prior to 1992, an employee can recover depending on the percentage of disability and number of weeks payment will be given.[9] Employees whose injury occurred between 2004 and 2012 are subject to another calculation based on the percentage of disability and number of weeks payment will be given.[10] An employee must show:

  • Injury caused permanent partial disability;

  • Employer did not give or offer alternative work within 30 days of termination and

  • Injured employee does not return to work within 60 days of termination.[11]


What is a permanent partial disability?

It may be confusing to understand what a permanent partial disability is given the fact that a permanent disability is one that never goes away so how can someone still work?[12] A court will look to see whether the disability has reached its best point meaning no matter how much effort or medical treatment is given, the injury will not get better within a year.[13]


Partial, on the other hand, is defined under the law as an injury that does not render the employee fully disabled.[14] An example would be losing site in one eye or not being able to use a hand fully but with some movement.


if these are both met, then the employee has taken his or her first step to receiving job displacement benefits.



Alternative work

Alternative work is one that is similar to that of the previous position the employee engaged. The employee must still make 85% of his or her previous job for this to be a viable option.[15] The employer may also offer to modify the employee’s work. This would entail changing the employee’s office location or giving them longer time to recover/finish projects. The employee would keep his or her same job but the employer would work with the employee in order to meet the demands required from the disability.


If the employer never gave this option to the employee within 30 days, then the employee has met the second requirement for the job displacement benefits program. The last requirement is straightforward: the employee must not return to his or her position within 60 days of termination.


If all the above are met, the employee may be able to recover under the job displacement benefits program of worker’s compensation.


Overview

Dealing with any type of injury is difficult but when it causes you to lose your job, it adds extra stress. An employee may file a worker’s compensation claim if that injury occurred while working. However, he or she does not have to settle for just money especially if they can still work just not in the same position. Job displacement benefits offers the employee the ability to go back to school and get back on his or her feet. Further, it entitled the employee to the ability to work again and provide for his or herself.

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TYPES OF PERSONAL INJURY CASES I HANDLE

Car Accident Lawyer

I have served hundreds of injured persons. Also, I have worked at a national law firm hired by big-name insurance companies to defend big businesses against high stakes lawsuits stemming from car accidents. I know all the tricks the insurance companies use to minimize money payment to injured persons.  Learn More

Motorcycle Accident Lawyer

I own and ride a Honda CBR500. I understand the unique challenges of being a rider in an ocean of cars. A motorcycle accident can occur anywhere and at an instant which may result in life-changing injuries. As a rider, I have a unique insight to protect your interest and ensure you are fairly compensated for your injuries.

Trucking Accident Lawyer and Commercial Vehicle Accident Lawyer

I’ve helped major insurance companies defending truckers in severe injury cases which include traumatic brain injuries. I have a unique insight into how big insurance companies defend trucking accidents. I will fight hard to ensure you are fairly compensated for your injuries.

Uber Accidents Lawyer

I have worked at a major national law firm hired by the insurance company to defend Uber drivers. I’ve defended Uber drivers in severe injuries cases and know how insurance companies defend injury cases.

Taxi Accident Lawyer

I have worked at a major national law firm hired by the insurance company to defend taxi drivers; I’ve defended taxi drivers sued in serious injuries cases and know how insurance companies defend injury cases.

Trip and Fall Injury Lawyer

Trip and fall cases are challenging because of the complexity of the issues involved. To establish liability, trip and fall cases may require safety engineers, structural engineers, or any other experts qualified to testify regarding the standard of care in the specific situation and whether it was breached.

Legal Reference

Department of Labor: Worker’s Compensation

[1] Labor Code § 3700

[2] Labor Code § 3202

[3] Labor Code § 3601

[4] Labor Code § 4658.5

[5] Labor Code § 4658.5

[6] Labor Code § 3601

[7] Labor Code § 4650

[8] Cal. Code Regs., tit. 8, § 10116.9, subd. (i)

[9] Labor Code § 4658(a)

[10] Labor Code § 4658(d)

[11] Labor Code § 4658.5

[12] Cal. Code Regs., tit. 8, § 10152

[13] Cal. Code Regs., tit. 8, § 10152

[14] Labor Code, § 4452.5, subd. (b)

[15] Labor Code, § 4658.1, subd. (c)