A work injury can be extremely stressful for you and your family. At Delfino Green & Green, our highest priority is to make this difficult time less stressful by fighting for your right to fair treatment, just compensation, and quality medical care. We pride ourselves on always providing experienced, hands-on, friendly, and accessible representation to guide you through this difficult time of your life.
At the law firm of Delfino Green & Green, our San Rafael workers’ compensation lawyers have extensive experience helping injured workers. We want you to receive the benefits you deserve so you can focus on recovering and getting back to your productive life.
Workplace injuries in California are processed through an increasingly complex benefit delivery system. On top of your health and workplace concerns, you will likely have questions about your rights and obligations regarding your injury claim. Here are a few questions our California workers’ comp lawyers are routinely asked:
How long does my employer have to accept or deny my claim?
In the overwhelming majority of cases, the employer has 90 days from knowledge of the claim to investigate and deny the claim. If more than 90 days passes then the claim is presumed compensable. The presumption can only be rebutted by evidence showing that the employer (or insurance carrier acting on its behalf) discovered information that could not have been discovered in the initial 90 days of the claim.
Can my employer discriminate against me for filing a claim?
An employer is in violation of LC Section 132a for terminating or discriminating against an employee for filing a workers’ compensation claim. While these claims are typically more difficult to prevail on, if you were improperly fired and do win, it could result in reinstatement of your position along with back pay.
Do I have to be currently working to file a claim?
While most claims are filed while the employee is still employed, it is not a strict requirement. It depends on several factors; such as whether you voluntarily quit, whether you suffered a specific injury or a cumulative trauma injury, whether you obtained medical treatment for the illness or injury prior to leaving the employment.
What is the difference between a specific and cumulative trauma injury?
A “specific injury” is typically a workplace accident where a sudden event occurs. It could be a slip-and-fall, a car accident or simply bumping into something. Most of the time it is an obvious event, but it could be more subtle; such as a single exposure to toxic or radioactive materials. In other words, except for that single event, you would not have been injured.
A “cumulative trauma” injury occurs when a series of workplace activities cause damage over time to a particular body part or process. The injury is often gradual but the onset of symptoms can be sudden. A stroke, a heart attack or a ruptured disk back injury could all be examples of a sudden onset of symptoms. An apt metaphor often used to describe this scenario is, “the straw that broke the camel’s back.”
When the symptoms are gradual but slowly increasing, many workers mistake the injury for something else, unrelated to their workplace activities. For example, if a data entry office worker sits at a work station that is ill designed, the worker may begin to feel gradually worsening symptoms in his or her neck and upper extremities. The worker may, at first, attribute these symptoms to the aches and pains of normal aging and discount the effect the work duties are having. Eventually though, if the work station and duties remain unchanged, the symptoms will worsen to the point where medical treatment is required. At that point, a good medical professional will find the connection between the injury and the work duties.
Many injured workers, and employers for that matter, are under the mistaken impression that cumulative trauma injury is somehow a less valid workplace injury than a specific injury. This is because a specific injury indicates a single, often spectacular, event; whereas the cumulative injury appears out of uneventful work duties. It is difficult for some employers to understand how an injury can be caused by cumulative trauma.
What can I do if all or part of my claim is denied?
This is not uncommon and simply means that you will need to litigate the claim. You will need to obtain medical and factual support for the claim and, if the employer still will not accept the claim, file for a hearing at the WCAB. Each situation is different, so it is a good idea to consult with a workers’ compensation attorney or an Information and Assistance Officer at your nearby district office of the WCAB.
Who decides which doctor(s) I will see?
For the first 30 days after the claim is filed, the employer can direct the medical treatment with a few exceptions. After that, the injured worker can choose his or her treating physician although in most cases, the injured worker must choose from an established network of facilities and health care providers.
What is the difference between temporary and permanent disability?
The key definitional difference is that temporary disability is a replacement for lost income because you cannot work while you are rehabilitating from your injury. Permanent disability is monetary compensation for residual disability after a medical determination has been made that you are finished recovering. There are many other differences in the way these benefits are calculated and applied.
If my spouse has died from a workplace injury, can I file a claim?
Yes, as long as the claim is made timely any dependent may seek death benefits. Certain members of an employee’s family such as the spouse or minor children are presumed to be dependent and have the right to file a claim.
If my work injury is the fault of someone other than my employer, do I have to choose between filing a workers’ compensation claim with my employer and suing the person responsible?
In some cases, third-party liability may be an option if the accident was caused by an individual other than your employer, or as the result of a defective product. In these cases, you can file a workers’ comp claim in addition to seeking compensation from the negligent third party.