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Workers Compensation

Contrary to what most people think, Workers' Compensation is the only remedy for medical benefits and disability compensation due to an injury at work. In other words, except for very limited exceptions, a worker may NOT "sue" his or her employer, or a co-worker for benefits and "damages" or "pain and suffering" when they were hurt at work, even if the worker feels that the injury was the employer's or co-worker's fault. This is true in almost all states. So, the law of Workers' Compensation is very different from that in an ordinary situation where a person is injured off the job due to the fault of another person, as in an off-duty auto accident, or an accident due to the negligence of an employee or employer working for a different company. Again, you can't sue your employer even if your employer is "negligent" in causing your injury. Therefore, if you are missing work due to your injury and need to receive income while you are recuperating from your injury while under doctor's care, or need other types of medical treatment, you are limited to getting theses benefits by filing a Workers' Compensation claim.

Your injury does not have to happen at a certain time, or on a specific day. Some injuries happen at a specific moment, such as a fall from a ladder, or a back injury may occur instantly from lifting a very heavy object. In other cases, people suffer "wear and tear" type of injuries by either performing fatiguing and repetitive work, such as working at a computer keyboard all day over a number of weeks, months or years, or by doing repetitive heavy work over time, as well. Both types of injuries are treated equally by the Workers' Compensation courts.

There are rare situations where your employer knowingly breaks an OSHA safety rule, or does something so contrary to an employer's safety, such as requiring a worker to perform duties at significant heights without protection in the event of a probable fall. If a serious injury results, that situation may subject the employer to significant fines and penalties, and increase the value of the Workers' Compensation claim significantly. Most importantly, there are time limits, or "Statutes of Limitation" which you must know about to preserve your rights. Neither your employer, nor their insurance company nor administrator will ever advise you of these crucial time limits. There are time limits for you to complete certain paperwork and to file certain documents in court to preserve your rights, and there are similar time limits for the employer to follow. Only expert attorneys can advise you about these issues.

Your employer is required by law to carry insurance for Workers' Compensation benefits, and most employers comply with the law, and do have insurance. When your employer is lawfully insured, the claim proceeds against the employer's insurance company. The employer is, for the most part "out of the picture." Sometimes your employer is "self-insured," meaning that it has permission from the State of California Department of Insurance, to set aside a special earmarked fund from which benefits can be paid. Most state agencies, counties and cities, and other large employers are "self-insured."

It is important to save all documents relating to your wages before the injury for your attorney's inspection. You are entitled to be reimbursed for any "out-of-pocket" expenses, and mileage to and from your doctor's office, physical therapy or pharmacy. At the end of your treatment, you should have received compensation for your loss of wages at a state-regulated maximum or minimum dollar amount. You will ALSO be compensated for any permanent impairment that affects you ability to earn wages or affects your ability to perform your daily activities. Maximizing your monetary recovery is one of the most important tasks of your attorney. Lack of representation by a trained attorney may severely affect the amount of money you receive.

It is against the law for an employer to retaliate against an employee for filing a claim, and therefore, employers are generally going to exercise even somewhat greater care in dealing with an injured worker, especially if the worker is represented by an attorney. It is rare that an injured worker will be fired or be "punished" by their employer for claiming benefits for their injury. IT IS YOUR RIGHT TO DO SO, AND YOUR EMPLOYER WOULD EXPECT YOU FILE A CLAIM. Most often, the INJURY IS REPORTED TO THEIR INSURANCE COMPANY by the employer. IT IS ALSO EXPECTED THAT YOU SEEK HELP FROM AN ATTORNEY. Serious rights and MONETARY compensation may be lost or forfeited if you are not properly advised. Neither the insurance company nor administrator or the claims adjuster are working for you—no matter how polite they can be, they are there only to save expenses and inconvenience to your employer. They are NOT your advocate-they are NOT your friend. At best, they might do what the law absolutely requires them to do. In most cases, they will not give you valuable information that you need to have. And most of all, they do not want you to seek the advice of a lawyer. They will do their best to discourage you from getting counseling. Your attorney is the only one there to protect your rights. The fee, which is generally going to be approximately 15% is not paid until the end of the case.

Finally, there is no requirement that you be represented by an attorney. You can handle your case directly with your adjuster. But that would be like getting advice from your neighbor or relative, or worse. They simply don't know the law, and most attorneys that are not specialized in Workers' Compensation don't know the law either.