Covid

• Apr 02, 2021
• Blog
• Michael Burgis & Associates, P.C

Know Your California Workers’ Compensation Rights!

What are the time limits to file a claim/Statute of limitations?

Generally, injured workers or their dependents, have one year to file a claim for benefits from the date of industrial injury or death. However, there are many ways to toll the statute of limitations. Take home: File your claim quickly and don’t get discouraged from filing if more than one year has lapsed since the date of injury – speak with an attorney!

A workers’ compensation claim is not a lawsuit against the employer; it is only a claim for benefits through the employer’s insurance policy:

Your employer is required to have Workers’ Compensation insurance coverage. Generally, a Workers’ Compensation claim is only against the insurance carrier for owed benefits. The employer has already paid the insurance premiums, and if the claim is not filed, the insurance company just makes more profit from not paying the benefits owed to the injured worker.

What are the basic benefits of Workers’ Compensation?

• Medical treatment to cure and relieve the effects of all industrial injuries and their compensable consequences.
• Temporary Disability – 2/3 of the injured worker’s salary for up to two years based on evidence supporting the temporary inability to work.
• Permanent Disability – if an injured worker does not have a full recovery, they are entitled to statutorily set compensation for Permanent Disability.

What types of injuries can you claim?

There are essentially two types of injuries, a specific injury or a cumulative trauma claim:

• Specific injury – an injury on a specific date and time, such as a slip and fall or an acute trauma.
• Cumulative Trauma – an injury which DOES NOT occur on a specific date and time, but rather, occurs over time, such as carpal tunnel syndrome from repetitive hand movements (e.g., prolonged typing or lifting). This can also include exposure to toxic material or even work-related stress.

Can my employer discriminate because I file a claim or get an attorney?

No – it is absolutely illegal for an employer to take any discriminatory action because you file a claim or retain an attorney! If this happens, it is important to speak with an attorney, as you may be entitled to substantial more compensation, including civil damages.

Will my Workers’ Compensation claim follow me to my next job or impact future jobs?

Generally, No. It is illegal for a subsequent employer to ask if you have ever filed a claim before and it is illegal to discriminate because of an injury or disability. In fact, all employers, including subsequent employers, are legally obligated to make all reasonable accommodations that do not represent an undue burden.

What if you’re not a legal citizen?

Immigration status, whether you’re here legally or illegally, has no impact on the workers’ compensation rights!

What if I caused the accident/injury?

No fault system – California Workers’ Compensation is a No fault system, which means that it does not matter if the injured worker caused the accident or was negligent. As long as the injury arose out of and was within the course of employment, the injured worker is generally entitled to benefits.

Death claims:

If a death arises out of and is within the course of employment, the decedent’s family and/or dependents may be entitled to death benefits. The death benefits are paid based on the number and level of potential dependents (full or partial). The main death benefits are:

• $250,000 – $320,000 (depending on number of full dependents);
• $10,000 burial expenses;
• Partial Dependents can potentially receive eight times the amount of money the decedent paid to them the year proceeding death;
• 2/3 of the decedent’s salary for all minors up to the age of majority (18); and
• 2/3 of the decedent’s salary for all incapacitated dependents for the dependent’s life.

Covid-19 cases:

If an injured worker is diagnosed with Covid, and contracted Covid from their workplace, and either dies or sustains injuries, they or their respective dependents are entitled to compensation!

How do you prove the injured worker got Covid from work?

Do not worry about this. First, there are legal presumptions that may be controlling on the issue. Regardless, an attorney can establish the record necessary to prove causation or if there is a controlling legal presumption, ensure the insurance carrier does not prove it was contracted outside of the workplace.

Can I sue my employer directly and obtain civil damages for Covid deaths?

Most attorneys would state that you cannot sue your employer directly for damages that arise from employment. Civil lawsuits are generally banned by the exclusive remedy rule. This is generally true. However, there may very well be a viable civil lawsuit against the employer if you can show the employer is willfully uninsured or there is fraudulent concealment.

• Willfully uninsured: If you can show that the employer willfully failed to maintain a Workers’ Compensation insurance policy, a civil lawsuit may be an option.
• Fraudulent Concealment: If you can show that the employer knew an employee had Covid-19, and instructed him/her not to disclose it to coworkers, and the employer also failed to disclose it and/or notify other employees of the potential risks, then there may well be a viable civil lawsuit.