1. What is workers' compensation?
In general, the law requires all employers in California to carry workers' compensation insurance and provide benefits to injured workers.
2. What is a work-related injury?
Workers' compensation laws generally define a work-related injury to include any injury you sustain while you are actually on the job or performing any duty for your employer's benefit. This can include errands if performed at the request of and for the benefit of your employer. Accidents in company parking lots and buildings are usually covered.
3. What should I do after being injured on the job?
- Report the injury to your employer/supervisor.
- Obtain emergency treatment from your employer.
- Obtain a claim form from your employer.
- Retain an attorney to represent you.
4. How much time do I have to report my injury?
The employee must give notice of injury to the employer within 30 days, unless the employer knew or should have know about the injury. Lack of notice will not bar an injured worker from receiving benefits unless the employer shows that it was prejudiced by applicant's failure to disclose. The employer has the burden of proof to show prejudice.
5. If I file a claim, will I get fired?
- The law protects injured workers from any form of discrimination by an employer due to their being injured on-the-job or filing a claim.
- Do not guarantee the injured worker that he will not be fired. We have no control over employers, but we can protect an injured worker's interests if his employer decides to retaliate.
6. To what benefits am I entitled:
- Temporary disability.
- Medical care.
- Permanent disability.
- Medical Mileage reimbursement.
- Vocational rehabilitation if the employee can no longer do the same work.
7. Can I receive workers' compensation benefits and state disability at the same time?
No, you may collect one or the other.
8. Can I choose my own doctor?
Unless you pre-designated your personal physician, your employer is obligated and has the right to send you to a doctor of its choice. As a general rule, the employer/insurance company has the right to medical control for the first 30 days after notice of injury. In some cases, the employer's medical control could be as much as a year. After 30 days, you may go to a doctor of your choice.
9. Am I required to go to the company's doctor?
The insurance company is usually allowed to choose the doctor who will treat your during the first 30 days after your employer learns about your injury or illness. After 30 days, you are allowed to switch to a doctor of your choice if you still need medical care. Some employers have contracts with state-certified health care organizations (HCO's) to treat workers hurt on the job. If your employer had this kind of contract, it may have medical control for up to one year. There are many exceptions where you can be helped by an attorney.
10. If I do not like the medical care I am receiving, may I switch doctors within the first 30 days?
Yes. Employers lose their right to medical control if they:
- Refuse to provide care or give lip service. In this respect, employers must exhibit more than a passive willingness to provide care.
11. My job involves driving and I had an accident while making a delivery. What rights do I have?
If you are injured in an accident while working for your employer, you are entitled to workers' compensation benefits, even if you were at fault. If you were not at fault, you may have a separate personal injury claim against the negligent driver of the other vehicle.
12. Am I entitled to my salary while off work?
Most injured employees are not entitled to the entire amount of their regular salary while off work due to a work-related accident. Income benefits while an employee is temporarily disabled or off work are generally computed at two-thirds of the employee's gross average weekly wage. However, present state law sets a maximum of $490.00 per week for temporary disability benefits.
13. Can I sue to recover the difference in salary I lost over and above the disability I was paid by the insurance company?
Generally no. Workers' compensation is a no fault system. You cannot sue your employer.You are entitled to recover only that portion of your salary provided by workers' compensation insurance.
14. Can I work and receive temporary disability at the same time?
Generally no, but there are exceptions.
15. Why is the choice of treating doctor important?
Your treating doctor will:
- Decide what type of medical care you will receive.
- Help identify the types of work you can do safely while recovering.
- Determine when you can return to work.
- Write medical reports that will affect the benefits you receive.
- Help determine the value of your claim.
- Determine future lifetime medical needs, if applicable.
16. What happens after I file the claim form?
Your employer must fill out and sign the "employer" portion of the claim form and give the completed form to a claims administrator. This person handles claims for your employer and usually works for your employer's insurance company. Your employer must give you a copy of the completed form within one working day after you filed it. Keep this copy. The claims administrator usually must decide within 90 days whether to accept or deny your claim.
17. When do my temporary disability payments begin?
If your injury is covered by workers' compensation, your first temporary disability payment is due within 14 days after your employer learns that:
- You have a job-related injury or illness; and
- Your treating doctor says that you cannot perform your usual job.
18. Do I get paid disability for each day I miss from work?
Not necessarily. You do not get paid for the first 3 days off work unless your disability lasts 14 days or more.
19. Can my first temporary disability payment be delayed?
Sometimes. If the insurance company cannot determine whether your injury is covered by workers' compensation, it may delay your first temporary disability payment while investigating. If there is a delay, the insurance company must send you a delay letter explaining:
- Why you will not receive payments within the first 14 days.
- What information the insurance company needs to decide if you are eligible for temporary disability benefits.
- When a decision will be made.
20. What happens if my temporary disability payments are late?
The insurance company must pay you an additional 10% of the payment, even if there is a reasonable excuse for the delay. However, there is no penalty if the insurance company sends you a delay letter. In addition, if there is no reasonable excuse for the delay, you could be awarded a substantial extra penalty payment.
21. When do temporary disability payment send?
Temporary disability payments end when:
- Your treating doctor says that you can return to your usual job, whether or not you actually return to work; or
- You return to your usual job or to modified work at your regular pay; or
- Your treating doctor says that you will never recover completely and that you are permanent and stationary, i.e., your condition neither improving nor getting worse. When temporary disability payments end, the insurance company must send you a letter explaining why the payments are ending. The letter must be sent within 14 days after your final temporary disability payment and must list all temporary disability payments sent to you.
22. My temporary disability payments stopped without explanation. What should I do?
Contact an attorney.
23. My temporary disability payments stopped because the doctor released me. I still cannot perform my regular work. Are there any other benefits I can receive?
Yes, within 14 days of your last temporary disability check, the insurance company must commence either vocational rehabilitation benefits (VRMA) or start advancing permanent disability payments. You may also be eligible for state disability benefits.
24. What rights do I have if I cannot recover from my injuries?
If your treating doctor says that you will never recover completely, you may be eligible to receive permanent disability benefits, vocational rehabilitation services and payments and lifetime medical care.
25. How can an attorney help me?
Among other things, an attorney can:
- Help you obtain the benefits to which you are entitled.
- Plan a strategy for your case.
- Gather information to support your claim.
- Keep track of deadlines.
- Represent you in hearings before a workers' compensation judge.
- Inform you about additional available claims and benefits.
- Advise you about types of settlements.
26. How are workers' compensation attorneys paid?
Applicant's workers' compensation attorneys provide free consultation. You do not pay your attorney right away. Instead, the attorney's fee is taken out of your benefits later. The fee usually ranges from 9% to 15% of your final permanent disability settlement or award, plus an additional amount if you receive vocational rehabilitation benefits. A judge must approve the fee.
27. When do I need a workers' compensation attorney?
If, among other things:
- You believe that your employer or the insurance company is treating you unfairly or withholding benefits.
- You have a permanent disability which seriously limits your ability to work or causes great pain.
- You are not sure how to proceed with your case.
- You are not satisfied with your medical care.
28. How do I know if I am receiving all my benefits?
Workers' compensation laws provide for various benefits which generally fall into three main categories: income benefits, medical care and vocational rehabilitation. There are numerous benefits to which you may be entitled within each category. Income benefits include temporary total disability, temporary partial disability, permanent partial and permanent total disability. Payment of income benefits depend on the condition of the injured worker. Medical care expenses may include, but are not limited to, doctor's fees, emergency care, home care, hospital fees, diagnostic or other testing, physical therapy and prescription medication and mileage. You may be entitled to medical expenses even if you do not receive income benefits.
29. Am I entitled to emergency care?
An injured worker is entitled to emergency medical care at the employer's expense. If you are injured on the job, your medical expenses, including emergency care, should be covered by workers' compensation insurance carried by your employer.
30. I was injured in Texas, but live in California. Can I file for benefits under California law?
- If you were hired in California and sent to work in Texas, you fall within California jurisdiction; but
- If you went to Texas seeking work without any contact while you lived in California, you probably do not fall within California jurisdiction.
31. Can I recover for my pain and suffering?
Workers' compensation laws do not allow an injured worker to recover for pain and suffering resulting from a work-related injury. However, as an injured employee, you are entitled to certain benefits under California law. The benefits generally include temporary and permanent disability, medical care and sometimes vocational rehabilitation.
32. What if I was injured by someone not working for my employer?
In addition to a workers' compensation claim, you may also have a third party claim, depending upon the circumstances of your injury. Two common examples of third party claims involve automobile accidents while on the job and defective products used on the job. Although workers' compensation is your exclusive remedy against your employer, there are certain instances when you may maintain a separate action against another party, such as the driver of the other automobile or the manufacturer of the defective product.
33. Am I entitled to Social Security Benefits?
To be eligible for Social Security disability benefits, you must show that you are unable to perform any type of full-time work for at least 12 months. Benefits are not paid simply because you are unable to return to your former job. You must prove that you were unable to work at all. The Social Security disability application process can be a slow one. Your attorney could assist you in obtaining benefits if you qualify.
34. What if I was injured by defective equipment.
If you are injured by defective equipment while working for your employer, you maybe able to maintain a products liability against the manufacturer of the equipment. The claim against the manufacturer would be separate from your workers' compensation against your employer. Although workers' compensation is your exclusive remedy against your employer, separate claims for defective equipment may be appropriate under certain circumstances. If your employer was aware of the defective equipment, additional claims may be filed against it.
35. Can I still get state disability after I am released from the doctor?
Possibly. If you are released with work restrictions and your employer does not have modified work to accommodate your disability, you may still be eligible to receive state disability if the funds in your account have not been exhausted.