Frequently Asked Questions (FAQ)
Life can become overwhelming if you have suffered an on-the-job injury. At the Law Office of Kenton D. Trigger, we’re here to answer all of your questions and provide the legal support you need. The following are answers to some frequently asked questions:
- What is workers’ compensation?
- What am I entitled to? What are my rights?
- Can I be fired for reporting or filing a claim for a workplace injury?
- Can I file a civil lawsuit against my employer?
- My claim has been denied. Now what?
- Can I collect full salary while I am unable to work?
- What happens if the insurance company is late with a payment?
- Can I collect State Disability for a work injury?
- How can an attorney help me?
- How much does an attorney cost?
What is workers’ compensation?
Regardless of fault, if you get hurt on the job your employer is required by law to pay for your medical treatment and, in some cases, a variety of other benefits including temporary disability (partial wage loss) and any permanent disability caused as a result of your injury. There are several ways to get injured at work including:
One event at work (Specific Injury). Examples: hurting your back in a fall, getting burned by a chemical that splashes on your skin, getting hurt in a car accident while making deliveries.
Repeated exposures at work (Cumulative Trauma). Examples: hurting your hand, back, or other part of the body from doing the same motion over and over, losing your hearing because of constant loud noise.
Workers’ compensation also covers some, but not all, stress-related and other psychological injuries caused by your job.
What am I entitled to? What are my rights?
In California there are several benefits available to someone who has been injured on the job. Some of these benefits include temporary disability (TD), permanent disability (PD), medical treatment, mileage and related expenses, future medical expenses, and vocational rehabilitation.
Can I be fired for reporting or filing a claim for a workplace injury?
It is illegal in California for an employer to harass, discriminate against, or fire an employee for reporting a on-the-job injury or filing a workers’ compensation claim. These protections also extend to any co-workers who may have witnessed the injury. Should an employer violate this rule, the employee’s compensation will be increased by 50%, or $10,000.00, whichever is greater. Please note that a complaint under California Labor Code Section 132a must be filed within one year from the date of the violation.
Can I file a civil lawsuit against my employer?
With a few exceptions, an injured worker may not file a civil lawsuit against their employer as a result of a workplace injury. This is part of the grand bargain struck between employers and employees in creating the workers’ compensation system. In return for the employee foregoing their right to pursue civil damages, the employer will cover any medical expenses incurred as a result of a workplace injury, regardless of fault. Exceptions to this rule exist when your employer is illegally uninsured or for certain intentional acts.
My claim has been denied. Now what?
It is disappointing to receive a letter from the insurance company that says that your worker’s compensation claim is “delayed,” or worse, “denied.” Unfortunately, although disappointing it is common practice for insurance carriers to look for some basis to deny that your injury occurred at work. Often times, while investigating the claim the insurance carrier will send out a delay notice which gives them up to 90 days to determine whether to accept or deny the claim. Although the employee is entitled to up to $10,000.00 worth of medical treatment during the delay period, they are not entitled to temporary disability benefits. Therefore, if you are off of work because of an on-the-job injury, it is recommended to apply for disability benefits through either the State Disability Insurance (SDI) system or some other disability policy through work.
If the claim is not denied within 90 days, an injury will be presumed compensable. This means that the injury will be accepted. Once presumed, the employer is barred from presenting evidence to the contrary if that evidence could have been obtained during the 90-day period. This has proven to be a great advantage to the injured worker.
If the claim has been denied, it is highly recommended to speak with an attorney. Despite the fact that all medical evidence from your treating physician states otherwise, a disturbing trend is that the claim will be denied because “there is no substantial medical evidence that proves your injury is industrial.” This tactic is often used to get a second opinion from a Qualified Medical Examiner (QME) and will often delay resolution of your claim by months and sometimes years. The delay can be grueling for someone unfamiliar with the system and often results in the injured worker giving up and going away.
Just because the claim has been denied, it does not mean it’s the end of the workers’ compensation process. However, doing nothing could result in losing your right to pursue your claim. There is a process for challenging the decision of the insurance company which begins with filing an “Application for Adjudication of Claim.” This brings the injured worker’s claim within the jurisdiction of the Workers’ Compensation Appeals Board (WCAB) where they can pursue benefits and other rights.
Can I collect full salary while I am unable to work?
Subject to a few exceptions, an injured worker will not be paid their full salary while they are out on workers’ compensation leave. Instead, they will receive 2/3 of their pre-injury earnings, up to a statutory maximum. For a more detailed explanation, please refer to the section on temporary disability discussed above.
An exception to the general rule occurs when there is an employment contract or Union agreement that provides for a full salary while on leave. By statute, certain safety officers and firefighters are entitled to full pay for the first 52 weeks of leave. After that, they are only entitled to 2/3 of their pre-injury earnings.
What happens if the insurance company is late with a payment?
There are specific deadlines that insurance companies must follow in order to avoid having to pay penalties. If they are late, they may have to pay you a penalty of up to 25% for each late payment. However, the 25% penalty can be avoided so long as they issue the payment within 90 days of realizing they were late. Either way, the insurance company still must pay you a self-imposed 10% penalty in the amount of the late payment.
Can I collect State Disability for a work injury?
When an employee has sustained a workplace injury and is unable to return to work while recovering, they are supposed to receive 2/3 of their gross (pre-tax) wages to help supplement any wage loss. Unfortunately, often times their claim has been denied and the insurance company refuses to pay any benefits. Understandably, this can place a huge financial burden on the injured worker and can often dissuade the injured worker from pursuing their claim.
To help take the financial burden off of people who are medically unable to work, the State of California provides State Disability Insurance (SDI). This program is administered through the Employment Development Department (EDD) and will generally provide benefits for up to one year. If you collect SDI you cannot collect temporary disability. If you start receiving temporary disability, you must notify EDD right away. Otherwise, you may be responsible for reimbursing EDD for any duplicate payments out of your settlement at the resolution of your claim.
How can an attorney help me?
Navigating the workers’ compensation system can be a long and difficult process. It is a complicated system that is made even more complicated by improper denials and road blocks set up by the insurance companies. Having an attorney will help make sure you get all the benefits you are supposed to receive. They handle all contact with the insurance company, evaluate the disability reflected in the medical reports, arrange medical evaluations, and handle problems that may arise. Once time, the attorney will negotiate the best settlement possible and, if no informal settlement can be reached, file for a hearing and represent you at the Workers’ Compensation Appeals Board (WCAB).
How much does an attorney cost?
Workers’ Compensation attorneys work on a contingency basis. This means you pay nothing unless you win! A typical fee is 12%-15% of your final settlement and must be approved by a workers’ compensation judge.