Workers’ Comp Benefits
In addition to Workers’ Compensation Law, an injured worker may be entitled to other rights depending on the circumstances. These might include:
- Third Party Cases
- Uninsured Employer Cases
- Intentional Injuries
- Unlawful Discrimination
- Serious and Willful Misconduct
- Social Security Disability
- Reasonable Accommodation
1. Third Party Cases
Usually the only remedy an injured worker has against an employer is Workers’ Compensation Law and negligence is irrelevant. However, if the injury is caused by a third party, someone other than the employer or an employee, then the injured worker may have a workers’ compensation claim and a civil claim. For example if you are driving a truck for your employer and you are rear-ended by another driver you may have a claim against that other driver in addition to your Workers’ Compensation Claim.
Attorney Brodie can make a referral to a lawyer who specializes civil cases if the facts of the case call for it.
2. Uninsured Employer Cases
California Workers’ Compensation Law requires that all employers provide workers’ compensation insurance for their employees. If a worker is injured while working for an uninsured employer, then the injured worker can sue the employer for civil damages in the civil courts in addition to claiming workers’ compensation benefits. The injured worker, in many circumstances, may be able to obtain benefits from a state agency called the Uninsured Employers Fund.
3. Intentional Injuries
If the injured worker is the victim of an intentional injury, such as when the boss attacks you, then the injured worker may sue the employer in civil court in addition to claiming workers’ compensation benefits.
California law prohibits an employer from discriminating or retaliating against an injured employee because he or she has made a claim for workers’ compensation benefits. Claims for discrimination most often end up in court before a workers’ compensation judge. The penalties for unlawful discrimination by an employer against an injured worker due to a work injury include lost wages, reinstatement, and a penalty of up to $10,000.
5. Serious and Willful Misconduct
While Workers’ Compensation Law does not allow the injured worker to sue the employer for negligence, if the injury was caused by the serious and willful misconduct of the employer additional penalties may apply against the employer, of a 50% increase in workers’ compensation benefits. Serious and willful misconduct can be found if the employer had advance notice of a dangerous condition but did nothing to remedy the situation and the employee was injured as a result of the employer’s failure to act on the dangerous condition. Advance notice is usually an important consideration. Serious and willful misconduct may also be found if the employer violates California Safety Orders leading to the work injury, but again, serious and willful misconduct is different and distinct from negligence or even gross negligence on the part of the employer.
6. Social Security Disability
If a person is disabled or likely to be disabled for a year or more, he or she may be entitled to Social Security disability benefits if you have paid sufficient payments into your Social Security account. To obtain Social Security disability benefits the disabled person must show that he or she is disabled from all gainful employment, not just your usual and customary job. The Social Security disability claims are administered by the Social Security Administration and often require hearings before Social Security Administrative Law Judges. In serious cases, Attorney Brodie can help you pursue a claim for Social Security disability benefits.
7. Reasonable Accommodation
The Americans With Disabilities Act (ADA), a federal law and the Fair Employment and Housing Act (FEHA), a state law, mandate that an injured worker or disabled person be reasonably accommodated by an employer if the modification or accommodation does not create “undue hardship” on the part of the employer. If the disabled person believes that the employer can accommodate or modify the employment so as to allow a return to work but refuses to do so, the worker may bring a claim in civil court under the ADA or FEHA in the appropriate circumstances. Attorney Brodie specializes in Workers’ Compensation Law and Social Security disability and does not represent anyone in an ADA or FEHA case. However, in an appropriate case, Attorney Brodie can make a referral to a lawyer to pursue such a claim.