Workers' compensation is money paid to a worker who is injured on the job. The money comes from the employer's insurance company. This money will cover the cost of medical treatments and will partially replace wages that are lost because of the injury. But the money will not pay for a worker's emotional distress, pain and suffering.
Every employer is required to maintain workers' compensation insurance for its employees. A wide range of workers are covered by workers' compensation. Temporary, part-time, independent contractors and non-legal residents may receive some benefits. Workers' compensation was designed to be the only way for an injured worker to get money for their injury.
Generally, an injured worker is not allowed to sue their employer for the injuries. But a worker may be able to sue if a personal injury was caused by someone other than the employer, or if there is a violation of the worker's civil rights, such as
sexual harassment or harassment, discrimination, and retaliation based on protected characteristics including gender, race, sexual orientation, etc. This conduct is a violation of the California Fair Employment Housing Act (FEHA).
Victims of workplace harassment, discrimination, and retaliation can both file a lawsuit and make a separate workers' compensation claim.
Employees have the right to be free from harassment, discrimination, and retaliation based on protected characteristics including gender, race, sexual orientation, etc. The California Fair Employment Housing Act (FEHA) protects the victimized employees by giving them the power to sue their employers.
Harassment, discrimination, and retaliation in the workplace may cause mental or physical injuries. Workers' compensation might be available to pay for those injuries, but workers' comp is not the only way for a victim of discrimination to get money. Victims can also file a lawsuit for the harassment, discrimination, and retaliation in addition to filing a workers' claim. This is unusual because worker's compensation usually preempts, or takes the place of, lawsuits which are based on workplace injuries. However, workers' compensation only covers risks that may reasonably be expected in a normal workplace. Harassment, discrimination, and retaliation are not considered a normal risk of employment. So, filing a claim for workers' compensation does not prevent victims from also suing for damages caused by the harassment, discrimination, and retaliation.
Victims of workplace harassment, discrimination, and retaliation have the right to be compensated for all of their injuries and damages. Workers' compensation may not compensate for all of an employee's damages because it is designed to ensure that injured workers get money to help with injuries. The workers' compensation system is limited and does not pay for things like emotional distress and other damages. Lawsuits for violation of the FEHA, on the other hand, are not limited in that way, so victims of harassment, discrimination, and retaliation may be more fairly compensated for their damages.
An injured worker may need a lawyer because workers' comp can be complicated and a lawyer can help.
- A lawyer can help a worker who feels lost in the process.
- A lawyer can help enforce a worker's rights
- A lawyer can help to appeal a denied claim
The steps of filing a workers' comp claim seem simple, but complex laws and procedures apply to a claim after acceptance or denial. The injured worker is responsible for keeping up with deadlines, knowing which procedures to follow, and which laws apply to them.
It may be difficult to navigate the laws and procedures of workers' comp without a lawyer. If a worker does not know the law, then they cannot enforce their rights. For example, a worker may be unaware that they are entitled to special benefits or other avenue to be compensated for their damages.
A lawyer that handles worker's compensation cases will already be familiar with the laws and procedures. So a lawyer can easily identify all the benefits that a worker is entitled to. And a lawyer can help deal with an insurance company that withholds benefits or treats a worker unfairly. A denied claim can mean that an injured worker, who can't work because of the injury, has to pay large medical bills. A lawyer can help appeal a denial and represent a worker in court.
The steps of a workers' compensation claim
- 1. Tell the employer about the injury
- 2. Employer gives the worker a Compensation Claim Form (DWC 1)
- 3. Worker fills out and returns the DWC 1 to the employer
- 4. Employer gives the DW1 to a claims administrator
- 5. Claims administrator accepts or denies the claim
- 6. Appeal or determination of benefits
Steps 1 – 4
The process starts when an injured worker tells their employer about the injury. After being told of the injury, the employer has 1 day to give the worker the necessary form to file for workers' comp, which is called a Compensation Claim Form (DWC 1). The worker fills out part of the form and then files the form by giving it back to the employer. The employer then fills out the other part of the form and gives it to someone designated to handle works' compensation claims. The employer must return, or mail, a copy of the completed form to the injured worker within 1 day.
The claims administrator is the person who decides to accept or deny a workers' compensation claim. A claim will be accepted if the claims administrator thinks that the injury is covered by workers' comp. This decision must be made within a reasonable time. If a claim is accepted, the injured worker will receive benefits. But if the claim is denied, an injured worker has the right to challenge the denial.
An injured worker can appeal a denied claim two times, by filing with the Workers' Compensation Appeals Board. After a claim is accepted, the claims adjuster uses medical reports to determine which benefits the worker is entitled to. The worker has a right to challenge both the medical reports and the determination of benefits.