How File A Worker’s Compensation Claim in CA

Brad Nakase, Attorney

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How to File a Worker’s Compensation Claim in California

Sometimes, while working, an employee suffers an injury. Medical bills and paid time off may accrue leaving the employee with bills and no way of paying them. However, California recognizes a remedy or way to recover. In order to be compensated for this injury, he or she may file a worker’s compensation claim.

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).

What to do first after being injured?

Once an injury occurs, calling the paramedics, obviously, should be the first step. However, after the initial shock has worn off and the employee has been looked after, the employee must inform the employer. This must be down in writing and signed within 30 days after the injury.[4] An employee may deliver it in person but can also send the notice by first class mail.[5] If these steps are not followed or if the notice falls outside the 30 days, there may be limitations or hardships when trying to recover worker’s compensation. However, even if notice is delayed passed the 30 days, recovery can still be demanded as long as the employer was not lied to or misled.[6]

When is my employee on notice of my injury?

It is important to know when an employer receives notice because it starts the clock of their response and compensation. An employer is deemed to receive notice either when seeing or hearing of the injury or when written notice is sent.[7] The employer himself does not have to see it; his or her agent or other worker can be present and the employer is considered to be on notice.[8] For example, if you work in a warehouse and other workers/supervisors are present when you fall off a ladder, the company is deemed to have received notice at the moment. Even if your boss or the head of corporate or the owner is not present, notice has been given.

Even if you know someone watched you suffer your injury, it is still important to write an official letter of notice so as to ensure your claim has been received. Further, if a suit or anything were to follow, evidence will be needed to corroborate your story.

Once the employer receives notice, he or she has one day to give the employee a worker’s compensation form to fill out.[9] If the employer does not give the employee the form, it can be obtained from the office of the Employment Development Department.[10]This form will be freely given if:

  • Employee needs medical treatment or
  • The employee’s injury has caused the employee to lose time beyond his or her shift.[11]

The employee fills out the employee section while the employer will fill out the employer section upon its return.

Further, the law states, the worker’s compensation form must come with written notice stating:

  • Writing can be first class or in person but must state workers comp is an option
  • Procedure to be used to begin proceedings
  • Description of different types of worker’s comp
  • What happens after claim form filed
  • From whom employee can obtain medical care
  • Role and function of primary treating physician
  • Rights of employee to change treating physical
  • How to get medical care while claim pending and
  • Protections against discrimination provided by law[12]

Once all this information has been handled and the forms have been returned, an investigation begins and compensation hopefully follows. What happens if my injury is not readily apparent? Sometimes injuries occur but pain doesn’t follow immediately. Further, some injuries may presently exist and due to injury, are exacerbated. These injuries are known as cumulative injuries and are still covered under worker’s compensation.[13] Since the date of injury is not exact, the law states it occurs when the employee first suffers from the disability and knew or should have known the injury was caused by his or her work.[14] From this point, an employee has 30 days to bring a claim. Another time frame that can be utilized in assessing when a cumulative injury occurred and a claim can be made is 30 days from realizing the injury or from the point when the injury caused the employee to miss work, whichever is first.[15] This usually arises when an employee goes to see a doctor and the doctor informs the employee he or she cannot return to work.

What happens after I file the worker’s compensation form with my employer?

Once the employee files the form with his or her employer, the employer has 90 days to accept or reject the claim.[16] If an employer does not reject or fight the claim within 90 days, it is presumed that the injury was suffered at work and compensation is required.[17] Further, once a form has been filed with the employer, the employer must give $10,000 for necessary medical treatment regardless of whether the employer will reject or deny the claim.[18] If the employer rejects the claim, payment stops. If they don’t, the payment continues and will no longer be subject to the $10,000 limit.[19]
Further, once a claim has been filed, it is in the best interest of both parties to

try to settle or come to some conclusion without getting the legal system involved.[20] This ensures a quicker recovery while also saving both parties money. Once a settlement is completed, however, the employer is released from further payments to the employee.[21]

However, if the employee wants to take the claim to court or is not happy with settling, the claim must be filed with the Worker’s Compensation Appeals Board.[22] This must be done within one year of (1) the injury occurred; (2) benefits stopped; or (3) medical treatment terminated.[23] The claim is then stamped and served to the employer and the employee, or his agent. A date is set and discovery, or the exchanging of evidence commences.[24] Further settlement talks may occur during this process but if no agreement is reached, the case will go to trial. Once a decision is made at trial, the employee can accept the compensation or verdict and move on or the employee may try to appeal the decision. If the employee wants to appeal, he or she must do so within 30 days to the Worker’s Compensation Appeals Board.[25]

Although the process may be tedious, the availability of worker’s compensation is a great path for an injured employee to follow. If you get hurt while on the job, it is important to understand your rights and remedies available.

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Legal Reference

[1] Labor code § 3700

[2] Labor code § 3202

[3] Labor code § 3601

[4] Labor code § 5400

[5] Labor code § 5400

[6] Labor code § 5400

[7] Labor code § 5402

[8] Labor code § 5402

[9] Labor code § 5401

[10] Labor code § 5401(a)

[11] Labor code § 5401

[12] Labor code § 5401(a)

[13] Labor code § 3208.1

[14] Labor code§ 5412

[15] Labor code § 5500

[16] Labor Code, § 5402, subd. (b)

[17] Labor Code, § 5402, subd. (b)

[18] Labor Code, § 5402, subd. (c)

[19] Labor Code, § 5402, subd. (c)

[20] Labor Code, § 4650, subd. (a)

[21] Labor Code, § 4650, subd. (a)

[22] Labor Code, § 5500

[23] Labor Code § 5405

[24] Labor Code, § 5502, subd. (d)(3)

[25] Labor Code, § 5313

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