NOTICE: The information contained on this page does not establish an attorney-client relationship with the reader.
The information contained on this page is absolutely not a complete overview of the subject matter addressed. The intent of this website is to provide the reader with a basic overview of a wide-array of Employee Rights in California. Each situation is different and the information contained here should not be relied on to make legal decisions without consulting an attorney. Also, the law is constantly changing and this website cannot be updated frequently enough to keep track of all of the changes. The accuracy of the information contained here is not guaranteed.
The information contained on this page does not establish an attorney-client relationship with the reader.
Section 1: Am I eligible for Workers’ Compensation Payments and Medical Treatment if I get injured at work?
In order to be eligible for Workers’ Compensation payments and medical treatment you must (1.) have been employed at the time of your injury and, (2.) your injury must not have occurred had it not been for your work. There are also rare exceptions to this general rule. It does not matter if the injury was partly or even completely your fault, it does not matter if you were working illegally, and it does not matter if your work just aggravated a pre-existing injury or if you sustained a completely new injury at work. With rare exceptions, all that matters is that you suffered an injury while you were performing your job duties. What an “injury” is for purposes of Workers’ Compensation in California will be discussed later in this article.
Section 2: What can I do to protect my family’s financial interest in case I get injured at work?
In some situations, California Law allows workers to predesignate a “Primary Treating Physician” (PTP) in the event of a work injury. Predesignating a PTP if done properly can help Injured Workers avoid having to seek treatment within a nasty thing innocently called a “Medical Provider Network.” A Medical Provider Network is a name for a group of doctors that are paid by a Workers’ Compensation Insurance Company to treat injured workers and write reports stating whether or not the worker is temporarily disabled, if they have any work restrictions and if so what are they, what medical treatment is reasonable and necessary to cure or relieve the injury, and whether or not there is any permanent disability that results from the injury and if so how much permanent disability the injured worker sustained. They also write reports addressing the causation of the injury. The Insurance Company, who pays these doctors, of course would have to pay for these things that the doctors might recommend. So many doctors are financially inclined to nickel-and-dime an injured worker on many of the components of their claim to which they might be entitled. Because of this, if it’s possible for an injured worker to predesignate a Primary Treating Physician, it’s usually a good idea to do so.
A “physician,” for purposes of predesignation can be either a particular doctor or an organized company of doctors. There are some requirements that your physician must meet in order for you to pre-designate them:
- Your physician must be your regular “physician and surgeon.”
- The physician(s) must meet the licensing requirements of Business and Professions Code 2000 and the sections that follow it. To summarize them, MD’s and Doctors of Osteopathy meet the requirements but chiropractors, psychologists, and acupuncturists do not meet the requirements to be selected as Primary Treating Physicians.
- The physician(s) must be your primary care physician.
- The physician(s) must have previously “directed your medical treatment” for purposes of California Labor Code 4600(d).
- The physician(s) must retain your medical records, including your medical history AND
- The physician(s) must agree to be predesignated. (This last requirement is generally not a problem).
If you meet all the requirements for predesignating a Primary Treating Physician, fill out the form here (English or Spanish) make a copy of the completed form and keep the copy in a safe place, consider talking to your co-workers to get them to fill out and hand-in predesignation forms and handing in the forms together. Try to have someone you trust witness you giving the form to your employer.
If you are retaliated against at work in any way for handing in your predesignation form then contact a quality, experienced Workers’ Compensation attorney.
NOTE: The above describes only how to pre-designate a primary treating physician under California Labor Code 4600(d). It does not describe how to predesignate a PTP under California Labor Code 4601, but predesignating under that section of the Labor Code will not allow an injured worker to get treatment from doctors outside of the Medical Provider Network and force the Insurance Company to pay those doctors for their services so the injured worker doesn’t have to pay.
Section 3: How do I know whether or not I have a valid Workers’ Compensation claim?
There are seven main types of compensable Workers’ Compensation “injuries” under California law. They are listed below:
- Specific injuries
- Industrial injuries suffered as the result of a specific incident or exposure but that has latent effects.
- Continuous cumulative traumatic injuries suffered as the result of a number of minor strains over a period of time.
- “Cumulative injuries, resulting from continuous exposure to harmful substances” such as silicosis or mesothelioma.
- Aggravation of a pre-existing disease or condition.
- Death claims
- husband or wife;
- child, posthumous child, adopted child or stepchild;
- father or mother;
- brother or sister;
- uncle or aunt;
- grandfather or grandmother;
- father-in-law or mother-in-law;
- brother-in-law or sister-in-law; and
- nephew or niece.
- Psychiatric injuries.
Specific injuries are incurred as the result of one incident or exposure in the employment, the effects of which are immediately realized or realizable. For example, an employee may lift a heavy item, hurt his back, immediately feel as if he cannot continue to work and need to see a doctor. Or someone could fall off a ladder and break a limb, need to see a doctor and immediately know that he is injured.
For example, a professional may get into a heated argument at work and feel tremendous stress, but only days later suffer the resulting heart attack. Or someone might fall down at work and suffer a traumatic brain injury, but not realize the serious, long-term consequences until much later.
For example, a worker on an assembly line might notice her back bothering her as the years go by, until she finally asserts this injury and seeks out treatment. She might not even know that her back is permanently injured until after she is no employed and no longer doing that difficult work.
For example, a janitor may use cleaning chemicals over many years, and long after retiring develop problems with her lungs.
Even if there was a pre-existing injury, if it was aggravated at work the injured worker will still be entitled to medical treatment and temporary disability for their injury. Permanent disability could potentially be reduced because of the pre-existing injury. For example, if someone goes to work with a bad back, and then their back gets worse while at work, they still have a compensable injury. Similarly, if someone has asthma, but that asthma gets worse at work because of chemical exposure, then they also have a compensable Workers’ Compensation Claim for their asthma. With these cases, although the injured worker is still entitled to all reasonable and necessary medical treatment for their injury, as well as all temporary disability due to them while they are temporarily incapacitated (either fully or partially), the permanent disability due to them can be reduced based on a legal fiction known as “apportionment” which allows insurance companies to reduce permanent disability payments on the theory that the permanent disability was partially caused by non-compensable factors.
If someone dies as result of a work injury, even if the work injury only partly caused their death, their dependants are still entitled to death benefits. Who was and who was not a dependent of the deceased worker can be contentious but generally under California Labor Code Section 3503, there are certain people who may qualify as a dependent from an adopted, blood, or marital relationship to the deceased employee. These defined relationships are:
However, just because you do not have one of these defined relationships with the deceased worker that does not mean that you are not a “dependent” for purposes of being entitled to Workers’ Compensation Death Benefits. If your loved one dies and their cause of death is 1% related to a work injury you should check with an experienced, quality Workers’ Compensation attorney to see if you are due Workers’ Compensation Death Benefits.
Similarly, you should inform your dependants that if you die due to a work-related injury that they have a claim for Workers’ Compensation death benefits. This is true even if the worker is partially at fault and/or the injury causing death was only partly caused by work.
Workers’ Compensation claims for psychiatric injuries (stress claims) are presently barred by law except in rare circumstances. First, the employee must have performed actual service to the employer for longer than 6 months unless the psychiatric injury resulted from a “sudden and extraordinary” event, such as a bank-teller being exposed to a bank robbery or a retaining wall giving way and lumber falling on a hardware worker’s leg. Secondly, the psychiatric injury must not be a result of a lawful, nondiscriminatory, and good faith action by the employer. Third, the work performed or something compensable which occurred at work must be the “predominant cause” of the psychiatric injury, meaning that over 50% of the Workers’ Compensation Contender’s psychiatric disability must be a result of the asserted psychiatric stressors that came about because of the workers’ employment. However, this third requirement can be waived if the psychiatric injury was the result of violence. If you meet all these requirements your legitimate Workers’ Compensation Claim for psychiatric injury will not be barred. Similarly, if you have suffered a non-psychiatric injury, such as a cumulative trauma claim for repetitive stress to your back and/or arms or a specific work injury, and have manifestations of psychiatric stress, then the possibility of filing for a psychiatric component to your workers’ compensation claim should probably be discussed between you and an experienced, quality, Workers’ Compensation attorney.
Section 4: What should I do if I get injured at work?
Save this number in your cell phone. 1-800-824-2983. That’s a toll-free number for my law office. If you get hurt, call it. You will receive a free confidential consultation over the phone. So long as your situation is reasonable I will either set you up with an appointment for you to come to my office and meet with an attorney to inform you of your legal options so you can make an informed decision about what you want to do, or you will receive a visit from a representative of my office to perform the same functions.
For cumulative trauma injuries that occur over time, and other injuries that are not immediately apparent to the employer, you should call my office as soon as possible, even if it’s after hours or on the weekend, for a free consultation. Time is of the essence and delaying filing your claim could cause unnecessary delays in you receiving your Workers’ Compensation Payments and Medical Treatment. My number is 1-800-824-2983. That is the simplest solution.
For serious injuries that occur suddenly and are apparent to the employer you should follow the steps listed below.
- Tell your co-workers that you feel injured and that you are reporting a work injury.
- Immediately go to your supervisor or employer to report your work-related injury or illness. If you do not report it, your employer could later terminate you and your claim could be more difficult to bring or even barred by law. Then you would contact my office at your earliest possible convenience.
- Request a claim form, otherwise known as an “Employee’s Claim for Workers’ Compensation Benefits” form or a DWC-1. A copy of this form can be found here. Your employer is legally obligated to give you a claim form within 24 hours and they should have these forms on hand. If they won’t give you a claim form, do not confront your employer, but call my office at 1-800-824-2983.
- When you get the claim form, fill out the “Employee” section. This is the upper section. If at all possible make a copy of the form with the “employee” section filled out and keep it for your records. Fill out the form accurately and completely. Do not be John Wayne about this. If something hurts or bothers you and you think it’s at all related to your work, write it down. That being said, be truthful. If you list body parts where the doctors will not find injuries it will probably not help your claim.
- Give the completed claim form back to your supervisor or employer. From that point, your employer has 24 hours to return the claim form to you. If your employer does not return the claim form to you in 24 hours, call our office at 1-800-824-2983. There will be no charge for this initial consultation.
- If you want to see a doctor, tell your supervisor or employer that you want to see a doctor. Do this when you hand them back the original claim form or as soon as possible afterwards. Hopefully, you gave your employer a Personal Physician Pre-Designation form before your work-related injury or illness occurred. If you have, see your pre-designated personal physician as soon as possible. You should not be charged by their office to be seen or treated there. If you did not give your employer a Personal Physician Pre-Designation form before your injury or illness manifested, ask your supervisor to send you to a doctor as soon as possible. From the point that you request medical treatment the employer has 24 hours in order to provide you with it. If you are not provided with medical treatment within 24 hours call my office at 1-800-824-2983.
- When you see the doctor, either your personal doctor that you have pre-designated or the company doctor, completely describe to the doctor how your work-related injury or illness occurred. Tell the doctor about ALL of the parts of your body that have been affected or hurt by the work-related injury or illness. If you have some medical symptoms and don’t know if these symptoms are related to your work or not, just tell the doctor about them and say that you don’t know whether they are related to your work or not. Do not overstate your symptoms. It is wrong and it will hurt your case. However, do not minimize the symptoms from your injuries either. Sometimes it’s hard for people to turn off the toughness and accurately and completely describe their symptoms but it is necessary for effective medical treatment and an effective resolution to your claim.
- Attend all medical appointments. Be on time. Keep copies of all papers that the medical office gives you. Especially important is anything documenting your medical condition.
- If you receive a sheet of paper titled “Panel of Qualified Medical Evaluators” and list of three doctors and their addresses on it request a free consultation with a workers’ compensation attorney immediately. Just sayin’.
Note: Even though Workers’ Compensation Payments are frequently referred to as “benefits” they are not discretionary with the employer or the insurance company. If you were/are working in California it was/is a condition of your employment that if you were injured at work, your employer’s insurance company would pay for your medical treatment and Workers’ Compensation Disability Payments. If you are injured at work your employer is LEGALLY MANDATED to provide you with these things. Do not be fooled. Do not sit on your rights. Contact a quality, experienced Workers’ Compensation Attorney for a free consultation.
Section 5: What relief is available for California Workers’ Compensation Claims?
If you are injured at work in California, you’re employer must provide you with all of the following:
- All reasonable and necessary medical treatment to cure or relieve your work-related injury.
- Temporary Disability Payments to compensate you for any time your Workers’ Compensation Doctors determine you are incapacitated from work and healing from your work-related injury or injuries.
- Permanent Disability Payments if you have been permanently disabled in any way as a result of your work related injury.
- A life pension for injuries that result in a severe amount of Permanent Disability.
- A Supplemental Job Displacement Benefit Voucher to assist you with job retraining if you are unable to return to your old job.
- Penalties for unreasonable delay in the provision of any of the above benefits.
Section 6: What if the injury was partially or completely my fault?
Under the laws of the state of California, it does not matter whether or not the injury was your fault. With a few exceptions, all that matters is that the injury happened because of your work. For more information call the office at 1-800-824-2983.
Section 7: What if I am not working legally in the United States?
It does not matter whether you were working legally or illegally for purposes of immigration when you sustained your “injury” for purposes of Workers’ Compensation. Under California Labor code 1171.5 immigration status is irrelevant for purposes of Workers’ Compensation. Also, it is not mandatory to list a social security number on an Application for Adjudication for a Workers’ Compensation Claim. In short, a skilled attorney can handle your Workers’ Compensation Claim in such a way that no one can compel you to disclose information regarding your immigration status throughout the entire course of the claim. Injured workers should never answer any questions to the insurance company with regards to their immigration status and should be sure they are represented by a skilled, ethical, unyielding attorney.
Section 8: Why do you call yourself a Workers’ Compensation Contender’s Attorney when other attorneys call themselves Applicant’s Attorneys?
Webster’s dictionary defines applicant as “one who applies” and defines apply as “to make an appeal or a request especially in the form of a written application.” But when someone files a workers’ compensation claim for payments and medical treatment, they aren’t really applying, or asking, for something. They are putting forth a contention that their employer’s insurance company owes them any and all medical treatment that is reasonable and necessary to cure or relieve their injury and any disability payments that result from their injury. When an “Applicant’s Attorney,” or at least a good Applicant’s Attorney, goes to court, they aren’t really asking the judge to give them something they are not due. They are demanding that the judge uphold the law and order the insurance company to provide them all payments and medical treatment that they are due under the law. The term “applicant” and “applicant’s attorney” can be problematic because uninformed workers can get confused and think that the insurance company has the right to terminate the provision of medical treatment and disability payments when they cannot legally terminate these things.
Because of this, I prefer to call myself a “Workers’ Compensation Contender’s Attorney” rather than a “Workers’ Compensation Applicant’s Attorney,” and to call my clients “Workers’ Compensation Contenders” rather than “Workers’ Compensation Applicants.” I do not ask for things on behalf of my clients; I demand them, and if they are not provided to the fullest extent required under the law then I take insurance companies to court and get court orders to make them provide them.
The imagery that “Contender” might bring up, of a good boxer, is unintentional. However, I do think that it is a more appropriate image than the word “applicant” might bring up, of a job applicant. If you become a client of this firm, like a good boxer I will fight on your behalf, and I will fight cleanly, skillfully, and ferociously. Getting hurt at work is not a badge of honor, but doing what you can after-the-fact to exert your legal rights maximally and guide your family through a difficult situation is.
Section 9: My attorney told me that I have to accept a proposed settlement or switch attorneys and if I switch attorneys I will be charged an additional $6,000. Can he do this?
No. That attorney either does not know the law or is willfully lying to you. If you change your attorney your new attorney and your old attorney might have a dispute over who gets what out of your legal fees, but your total legal fees will not be increased. If your attorney is telling you this, you are not in good hands. Feel free to contact The Clayton Perry Law Office For Injured Workers at 1-800-824-2983 for a free consultation.
Pursuant to Labor Code Section 5432(a), making a false or fraudulent Workers’ Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.