When You're Injured On The Job

IMPORTANT NOTICE: This article is provided solely for research and archival purposes. MCLE self-study credit is no longer available. Even if you follow the instructions and submit payment you will not be granted MCLE self-study credit. Please note that low-cost MCLE is provided by the California Lawyers Association, pursuant to Business and Professions Code section 6056.

What every lawyer needs to know when an employee suffers or claims a work-related injury

Malecki

By William E. Malecki

Most lawyers do not represent injured workers, their employers or their insurers, but every lawyer is either an employee, eligible to receive benefits should he or she become injured, or an employer responsible for providing workers' compensation benefits to an employee should an injury occur.

Workers' compensation law sets forth very specifically the rights and responsibilities of both the injured employee and his employer and what each needs to do, before and immediately following the occurrence or claim of an injury.

This article is for the information and education of members of the State Bar of California and is not intended to create an attorney-client relationship nor to provide legal advice to any reader of this article.

Overview of workers' compensation

When a person is injured at work, or suffers an injury or illness which is deemed to be work-related, in most cases, the employee's sole remedy will be recovery of workers' compensation benefits (Labor Code §3600). All references are to the Labor Code unless otherwise indicated.

 Because workers' compensation has been established by the California Constitution and Labor Code to be the exclusive remedy, the employee will have no action at law for damages, with very narrow exceptions. Article XIV, §4 of the California Constitution gives the legislature plenary power ". . . to create, and enforce a complete system of workers' compensation. . . and enforce a liability on. . . all persons to compensate. . . their workers for injury or disability. . . in the course of their employment, irrespective of the fault of any party."

Generally, for a person's injury or illness to come under the provisions of workers' compensation law, the injury must both aris[e] out of and occur in the course of employment ("AOE/COE"), that is, the employee must be "performing service growing out of and incidental to his or her employment and [be] acting within the course of his or her employment," (§3600(2)) and the injury must be proximately caused by the employment (§3600(3)).

The benefits payable due to an injury or illness include both compensation and medical benefits. Compensation benefits include temporary disability indemnity (§4650(a)), permanent disability indemnity (§4650(a)) and vocational rehabilitation benefits (§4538).

Medical benefits consist of "medical, surgical, chiropractic, acupuncture and hospital treatment" (§4600).

Temporary disability indemnity is paid when an employee is unable to work due to the work-related injury or illness, is paid at a rate of two-thirds of the average weekly earnings during the period of such disability (§4653), and is subject to a statutory maximum, currently $602 per week, which varies according to the date of injury (§4453).

Permanent disability indemnity is paid when the injury "impairs a workers' earning capacity, or a workers' bodily function, or . . . creates a handicap in the open labor market" (Hanna, Calif. Law of Emp. Inj. §8.01, Rev. Ed. 1999). It may either be "total" or "partial" and is assessed according to a schedule which takes into account the nature of the injury and the employee's occupation and age. The indemnity also is subject to a statutory maximum, which varies according to the date of injury and the percentage of disability; it is currently as high as $230 per week (§4659).

Vocational rehabilitation benefits are provided when the employee is determined to be incapable of "engaging in his or her usual and customary occupation or the position he or she was engaged in at the time of injury" (§4638(a)(1)) and when "the employee can be reasonably expected to return to suitable gainful employment through the provision of vocational rehabilitation services" (§4638(a)(2)).

Benefits include a weekly maintenance allowance, necessary additional living expenses and costs of the program itself, including counseling fees, training costs, tuition, etc., up to a maximum of $16,000 total (§139.5(c)). If the injury causes death, benefits (§4700) may be recoverable by the deceased employee's dependents (§3501).   

Who must provide benefits

Every "employer," except the state itself, is required to either be insured for their workers' compensation liability or secure a certificate of consent to self-insure from the Department of Industrial Relations (§3700). The Labor Code broadly defines who is deemed to be an "employer" and includes any person, association, organization, partnership, business trust, limited liability company or corporation which has any natural person in service (§18; §3300). Thus, whether an attorney is a sole practitioner, a partnership of any kind or a corporation, professional or otherwise, there will be liability for workers' compensation benefits to any employee.

Who may receive benefits

The person seeking compensation must be an "employee" (§3351) of the person or entity from whom compensation is sought. The Labor Code defines an employee to mean every person in the service of an employer (§3351). Any person rendering service for another is presumed to be an employee unless he is an independent contractor (§3357).

An independent contractor is defined as any person who: 1) renders service for a specified recompense for a specified result, and 2) is under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished (§3353). 

Lawyers and law firms will often hire another lawyer to provide services on a limited or temporary basis. Whether such a lawyer so employed is considered an employee or an independent contractor is a matter of law, and not necessarily dependent on the parties' intentions, although the intentions are a relevant factor.

Where there is proof that a worker was performing services for a principal at time of injury, the burden rests on the principal to establish that an injured worker was an independent contractor or otherwise excluded (Durae v. Industrial Accident Comm. (1962) 206 Cal. App. 2d 691).

In workers' compensation proceedings, establishing the status of a person as an independent contractor is an affirmative defense (Greenaway v. Workmen's Comp. Appeals Bd. (1969) 269 Cal. App. 2d 49).

The primary factors are set forth in S. G. Borello & Sons Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341. A well-articulated list of relevant factors is contained in Pergvica v. Industrial Accident Comm. ((1947) 29 Cal.2d 857).

They are: 1) whether or not the one performing services is engaged in a distinct occupation or business, 2) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of a principal or by a specialist, 3) the skill required in the particular occupation, 4) whether the principal or the worker supplies instrumentalities, tools and the place of work, 5) the length of time services are to be performed, 6) method of payment, whether by time or by the job, 7) whether or not the work done is the regular business of the principal, and  8) whether the parties believe they are creating an employment relationship.

What the employer must do before an injury occurs

The employer has a variety of duties with regards to workers' compensation, beyond the previously noted obligation to be insured (§3700). These include, but are not limited to the following:

1. Posting, in a conspicuous location frequented by employees, the name of its insurer and information about workers' compensation benefits (§3550);



2. Notifying all new employees, either at the time of hire or by the end of the first pay period, of their right to workers' compensation benefits, including the employee's right to designate the name of their "personal physician" (§3551);



3. Providing a safe and healthy work environment by establishing, implementing and maintaining an effective injury prevention program, including provisions designed to encourage employees to inform the employer of hazards at the worksite, without fear of reprisal (§6401.7).

What the employee must do when an injury occurs

The obligations of the injured employee when a work-related injury occurs include, but are not limited to, the following:

1. Providing written notice to the employer, within 30 days, of the injury (§5400). This requirement is only effective when there is prejudice to the employer (§5404), which is difficult to prove, so the provision is not, as a practical matter, enforceable;



2. Completing the claim form provided by the employer, and returning it to the employer (§5401(c));



3. Reporting for examination and treatment, if needed, to their pre-selected personal physician (§3551) or the physician selected by the employer (§4600) if the employee has not pre-designated and it is within the first 30 days after the injury.

What the employer must do when an injury occurs

The obligations of the employer when a work-related injury occurs or is claimed include, but are not limited to, the following:

1. Providing first aid (§2440; 8 CCR §9780.2) and medical treatment (§4600; 8 CCR §9784);



2. Providing the employee with an "Employee's Claim for Workers' Compensation Benefits & Notice of Potential Eligibility for Benefits" form within one working day of learning of an injury which results in lost time beyond the employee's work shift or medical treatment beyond first aid (§5401(a)); the definition of "first aid" is "any one-time treatment and any follow-up visit for the purpose of observation of minor scratches, cuts, burns, splinters or other minor industrial injury" (§5401(a)).



3. Completing and sending an "Employer's Report of Occupational Injury or Illness" to the insurer within five days of learning of an occupational injury, even if you feel the claim is not valid (§6409.1; 8 CCR §14001 et seq). Filing the form is not an admission of liability (Cf. §4909; §6409.1).

Immediate notice to Cal-OSHA is required in cases involving "serious injury or death" (§6409.1(b)). The employer, usually through its insurance carrier, has 90 days within which to accept or reject liability. If liability is not rejected within the 90-day period, the injury is presumed compensable (§5402).

Resources

Because California's workers' compensation system is a complex, multi-layered statutory scheme for the provision of benefits to California employees, an enormous amount of statutory, regulatory and case law has arisen around it.

A California lawyer has many resources available to assist in navigating the maze of workers' compensation law.

The Workers' Compensation Section of the State Bar of California, through standing committees, seeks to promote better legal practice, education and legislation affecting workers' compensation.

The section publishes the Workers' Compensation Quarterly newsletter and offers many informative classes at its own educational conferences as well as at the State Bar Annual Meeting and the State Bar Section Education Institute. The section's web page may be accessed at www.calbar.ca.gov/state/archive/calbar/sections.

Other excellent resources include the California Applicants' Attorneys Association (CAAA) and the California Workers' Compensation Defense Attorneys' Association. They can be accessed at www.caaa.org and www.cwcdaa.org.

On the publication side, Hanna, Calif. Law of Emp. Inj. 8.01, Rev. Ed. 1999; Herlick, California Workers' Compensation Law; Herlick, California Workers' Compensation Handbook; and CEB, California Workers' Compensation Practice are very informative resources.

• William E. Malecki, a member of the State Bar Workers' Compensation Section, is an attorney with the State Compensation Insurance Fund and a certified specialist in workers' compensation law.

Certification

• This self-study activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of one hour.



• The State Bar of California certifies that this activity conforms to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.

Self-assessment test

Answer the following questions after reading the MCLE article on commercial letters of credit. Use the answer form provided to send the test, along with a $20 processing fee, to the State Bar. If you do not receive your certificate within four weeks, call 415-538-2504.

1. The United States Constitution gives the legislature plenary power ". . . to create, and enforce a complete system of workers' compensation. . . ."



2. For a person's injury to come under the provisions of workers' compensation law, the injury must be proximately caused by the employment. 



3. Medical benefits include medical and surgical treatment, but other treatments such as chiropractic and acupuncture are not included.



4. Temporary disability indemnity is subject to a statutory maximum, currently $602 per week, which varies according to the date of injury.



5. Vocational rehabilitation benefits include a weekly maintenance allowance, necessary additional living expenses and costs of the program itself, including counseling fees, training costs and tuition.



6. The Labor Code broadly defines who is deemed to be an "employer" and includes any person, association, organization, partnership, business trust, limited liability company or corporation which has any natural person in service.



7. Any person rendering service for another is presumed to be an independent contractor unless he demonstrates by a preponderance of the evidence that he is an employee.



8. Whether such a lawyer is considered an employee or an independent contractor is determined solely on the parties' intentions when there is a written contract.



9. A relevant factor in finding a person to have independent contractor status includes whether the kind of occupation is usually done under the direction of a principal or by a specialist and whether the principal or the worker supplies instrumentalities, tools and the place of work.



10. The employer's duties with regard to workers' compensation include but are not limited to notifying all new employees, either at the time of hire or by the end of the first pay period, of their right to designate the name of his or her "personal physician."



11. The employer is required to maintain an effective injury prevention program including provisions designed to encourage employees to inform the employer of hazards at the work site, without fear of reprisal.



12. If the injured employee fails to provide written notice to the employer within 30 days of the injury his right to compensation will be barred.



13. The obligations of the injured employee when a work-related injury occurs include completion of the claim form provided by the employer and returning it to the employer.



14. The obligations of the employer when a work-related injury occurs or is claimed include providing first aid.



15. The employer must provide the employee with an "Employee's Claim for Workers' Compensation Benefits & Notice of Potential Eligibility for Benefits" form within 10 working days of learning of an injury which results in lost time beyond the employee's work shift or medical treatment beyond first aid.



16. The definition of "first aid" is "any one-time treatment and any follow-up visit for the purpose of observation of minor scratches, cuts, burns, splinters or other minor industrial injury."



17. The employer is required also to complete and send an "Employ-er's Report of Occupational Injury or Illness" to the insurer within five days of learning of an occupational injury, even if it feels the claim is not valid.



18. Immediate notice to Cal-OSHA is required only when the injury results in death.



19. The employer, usually through its insurance carrier, has 100 days within which to accept or reject liability.



20. The Workers' Compensation Quarterly is published by the California Applicants' Attorneys Association.