What is a worker’s compensation claim?
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. To be compensated for this injury, they may file a worker’s compensation claim.
A worker’s compensation claim is an administrative pleading filed with the employer. It is different than other types of claims because the purpose or goal is for the employee to be compensated quickly. This thought process arises because there are likely medical bills piling high and times the employee cannot work. Further, an employee may suffer a severe injury that they are permanently hurt and cannot return to their position.
However, not all employers fall under this availability or remedy. For worker’s compensation to apply, the employer must have the following:
- Insurance
- The injury occurred during normal business
- It must be understood this is the exclusive remedy (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 (an employee set up a way to be injured and fell 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 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 written and signed within 30 days after the injury. An employee may deliver it in person but can also send the notice by first-class mail. If these steps are not followed, or 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 past 30 days, recovery can still be demanded as long as the employer was not lied to or misled.
When is my employee on notice of my injury?
Knowing when an employer receives notice is important 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. The employer himself does not have to see it; their agent or other workers can be present, and the employer is considered to be on notice. 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. Even if your boss, the head of corporate, or the owner is absent, notice has been given.
Even if you know someone watched you suffer your injury, writing an official letter of notice is still important to ensure, your claim has been received. Further evidence would be needed to corroborate your story if a suit or anything were to follow.
Once the employer receives notice, they have one day to give the employee a worker’s compensation form to fill out. If the employer does not give the employee the form, it can be obtained from the office of the Employment Development Department. This form will be freely given if:
- The employee needs medical treatment or
- The employee’s injury has caused the employee to lose time beyond their shift.
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 the claim form filed
- From whom the employee can obtain medical care
- Role and function of the primary treating physician
- Rights of the employee to change treating physical
- How to get medical care while the claim is pending and
- Protections against discrimination provided by law
Once all this information has been handled and the forms returned, an investigation begins, and compensation hopefully follows.
What happens if my injury is not readily apparent?
Sometimes injuries occur, but the 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. Since the date of injury is not exact, the law states it occurs when the employee first has the disability and knew or should have known the injury was caused by their work. From this point, an employee has 30 days to bring a claim. Another time frame can be utilized to assess when a cumulative injury occurred, and a claim can be made in 30 days from realizing the injury or from when the injury caused the employee to miss work, whichever is first. This usually arises when an employee goes to see a doctor, and the doctor informs the employee they cannot return to work. Believe it or not, filing a fraudulent worker’s comp claim in California is a crime, according to San Diego criminal defense attorney Tom Rist.
What happens after I file the worker’s compensation form with my employer?
Once the employee files the form with their employer, the employer has 90 days to accept or reject the claim. 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. 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. 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.
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. This ensures a quicker recovery while also saving both parties money. Once a settlement is completed, the employer is released from further payments to the employee.
However, if the employee wants to take the claim to court or is unhappy with settling, the claim must be filed with the Worker’s Compensation Appeals Board. This must be done within one year of (1) the injury occurred; (2) benefits stopped, or (3) medical treatment terminated. 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. Further settlement talks may occur during this process, but the case will go to trial if no agreement is reached. 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, they must do so within 30 days to the Worker’s Compensation Appeals Board.
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 the remedies available.
