How to file a Workers' Compensation Claim in California

California has special procedures and a separate judicial system if you are injured at work.

Every employer in California must have workers' compensation insurance. If you are injured at work, you will have to deal with a workers' compensation insurance carrier.

If you have a dispute regarding your claim, you will have to deal with the Workers' Compensation Appeals Board.

This can be a confusing and stressful time for an injured worker. Having an understanding of the system and process can help you get the benefits and treatment that you deserve.

This article and related sections will help you understand:

  • What injuries are covered by California Workers' Compensation
  • How to report and file a claim
  • Benefits you will receive
  • Documents the insurance company will send you
  • Handling a dispute related to your injury
  • How your disability will be calculated
  • How your claim will end

In this article, our California personal injury attorneys will explain:

1. Who can file a workers' compensation claim in California?

The California workers' compensation system provides benefits if you are injured at work. The benefits are limited, but you do not have to prove that someone else was at fault to collect benefits. The only requirement is that you were injured while working.

Unless certain conditions are met (link to suing your employer), this is your only option if you are injured at work.

If you get hurt on the job, you're protected by law. The right to workers' compensation benefits is in the California Constitution.1

Workers' compensation laws give the benefit of the doubt to the injured worker.2

1.1 What does “arising out of or in the course of employment (AOE/COE)” mean?

The main requirement for obtaining benefits is that the injury occurs while you are working.3

This can include driving to a jobsite or meeting, but not commuting.4

It also does not include situations where the injury was:

  • Caused by alcohol intoxication or other substances
  • Self-inflicted
  • From a fight started by the injured employee
  • Caused during the commission of a felony5

1.2 Types of injuries

An injury at work is any injury or disease arising out of employment.6 A non-work injury can be partially caused by work or aggravated by work.

Some of the most common injuries are low back injuries and injuries of the upper extremities such as repetitive motion injuries like carpal tunnel syndrome.7

There are generally two types of injuries in workers' compensation defined in Lab. Code section 3208.1.

1.2.1 Specific Injury

A specific injury is the result of one incident that causes you to miss work or require medical treatment, such as a slip and fall or injuring your back while lifting something heavy.

1.2.2 Cumulative Trauma

A cumulative trauma is a repetitive mental or physical injury that occurs over a period of time and that causes you to miss work or require medical treatment, such as repeatedly typing or doing an uncomfortable activity over weeks or months.

1.3 What if I am an independent contractor?

The workers' compensation system assumes that you are an employee and not an independent contractor. Your employer has to prove that you are an independent contractor to deny you workers' compensation benefits in the event of an injury.8

It is important to understand the difference between an independent contractor and employee for California workers' compensation.

To prove this one way or the other, there are multiple factors that will be reviewed. The most important factor is whether the employer has control over the employee as far as the work that is done and how it is done.9 10

Even if you have an agreement that says you are an independent contractor, it does not mean it is correct. You can still claim that you are an employee and you may still be entitled to workers' compensation benefits.11

1.4 Special status for police officers, firefighters, and other government employees

If you are listed as an eligible person under Lab. Code section 4850(b), you can receive one year of full pay instead of temporary disability benefits.12

Additionally, certain employees who have a hernia, heart disease, or pneumonia get a presumption that the injury was caused by work.13 Firefighters who are exposed to carcinogens and develop cancer also get a presumption that the cancer was caused by work.14

There are other special presumptions for certain kinds of public employees.15

California firefighters receive these special workers comp benefits.

California police officers receive these special workers comp benefts.

1.5 What if I am undocumented?

All the rights and remedies of the labor code also apply to undocumented injured workers.16 17 However, it may be illegal for an employer to return someone to work knowing that they are undocumented.18

1.6 What if I am terminated before I file a claim?

For most injuries, if you claim an injury after you have been let go or notified that you will be, you have to show that:

  1. The employer had notice of the injury prior to the termination or layoff
  2. There are medical records prior to the termination or layoff that show evidence of injury,
  3. The injury took place after you were notified you would be let go but before your last day
  4. The injury is not a specific injury, but occurred over a period of time, and you did not suffer any effects from it until after the notice of termination or layoff19

If you are claiming a psychiatric injury, the rules are a little different. According to Lab. Code section 3208.3(e) you must show that:

  1. A sudden or extraordinary event occurred
  2. The employer had notice of the injury prior to the termination or layoff
  3. There are medical records prior to the termination or layoff that show evidence of injury
  4. There was sexual or racial harassment
  5. The date of injury is prior to the date of termination or layoff, not just the notice of termination or layoff

2. How do I file a claim?

A claim can be filed if an injury requires more than first aid or for you to miss more time than the day of the injury.20 Your employer is also required to have certain workers comp forms and notices in English and Spanish regarding your right to workers' compensation benefits. 21

2.1 Notifying your employer

Labor Code section 5400 requires that an injured employee notify their employer in writing within 30 days of the injury. However, Labor Code 5402 says that if the employer learns of the injury in some other way, such as if the employee tells a supervisor, it is the same thing as a written notice. Also, the failure to give notice does not prevent recovery unless the delay causes some negative consequence for the employer. 22

Either way, the employer is not given an opportunity to investigate the claim.

Within one working day of learning of the injury, the employer is required to provide you with a Claim Form.

On the claim form, you will state details about the incident and then sign the document. The details include:

  • date and time of injury
  • address and description of where the injury took place
  • injury and the parts of body affected
  • social security number

The claim form states that:

“Any person who makes or causes to be made any knowingly false or fraudulent material statement or material misrepresentation for the purpose of obtaining or denying workers' compensation benefits or payments is guilty of a felony.”23

There is also a section that the employer will complete when you return the form to them. This will contain:

  • Name of the employer
  • Address
  • Date employer knew of the injury
  • Date claim form was provided to the employee
  • Date employer received the claim form
  • Name and address of the insurance company
  • Insurance policy number
  • Employer signature

2.2 Required Notices

Once the employer receives the claim form, they will send it to their insurance company. At that point, the insurance company is required to provide you notices that state various rights, including:

  1. The procedure that will be used to begin the process of collecting workers' compensation.
  2. A description of the different types of workers' compensation benefits.
  3. What happens to the claim form after it is filed.
  4. From whom the employee can obtain medical care for the injury.
  5. The role and function of the primary treating physician.
  6. The rights of an employee to select and change the treating physician pursuant to subdivision of Section 3550 and Section 4600.
  7. How to get medical care while the claim is pending.
  8. The protections against discrimination provided pursuant to Section 132a.
  9. Your right to disagree with decisions affecting your claim.24

2.3 What is medical first aid only?

First aid is a one-time treatment and follow-up visits for minor injuries such as scratches, burns, splinters, cuts, and other injuries which do not normally require medical care.25

2.4 What is the Statute of Limitations for filing a claim?

The statute of limitations is a defense that the insurance company will use to deny paying you benefits.

Filing a claim notifies your employer and starts the clock on receiving benefits. The statute of limitations applies to your legal right to benefits within a certain time period. The statute of limitations is generally one year, but there are different situations that can delay that.

The one-year period begins at the latest date that whichever of the following occurs:

  • The date of injury
  • The last payment of disability benefits
  • The last medical treatment

Example: Julie's May 1, 2016 injury is accepted and she is provided with medical treatment until May 1, 2017. She has until May 1, 2018 to file an application to claim further benefits.

Example: Assume the same facts as above, but Julie receives temporary disability benefits through June 30, 2017. Now Julie has until June 30, 2018 to claim further benefits.

Example: Julie has the same date of injury but this time it is denied by the insurance company on July 15, 2016. Now Julie has until July 15, 2017 to claim further benefits.

If the employer doesn't tell you that you have the right to file a workers' compensation claim or fails to give you a claim form, the statute of limitations may not apply. 26 This also applies to telling new employees about their rights to workers' compensation benefits and posting those notices in the workplace. 27

2.5 How will the insurance company investigate my claim?

Once you file the claim form, the insurance company has 90 days to accept or deny the claim. If they do not decide within 90 days, the injury becomes accepted.28

Until the insurance company makes a decision about your claim, they must provide you with medical treatment up to $10,000 even if they eventually deny the claim.29

The insurance company may question you under oath in a deposition. They may obtain records of your prior medical treatment and employment through subpoena. They may have you evaluated by a doctor.

These actions could be before they accept or deny your claim, or after.

2.6 What if my claim is denied?

The insurance company will send you a Notice of Denial of your claim. If you want to appeal the denial of a workers comp claim, you have one year from the date of the denial letter.30

3. What benefits will I receive?

If you have a work injury, you are entitled to receive:

3.1 Medical treatment

This includes all medical, chiropractic, acupuncture, dental, surgical, and hospital treatment to cure or relieve you from the effects of the injury.31 You can select a treating doctor in the Medical Provider Network (MPN) and your doctor has to request treatment. Only reasonable treatment will be approved. In some cases, this can include treatment by out-of-state providers.

3.1.1 How will I get medical treatment if my claim is denied?

There are medical providers that will treat you on a lien basis, meaning they will treat you for free and later try to collect from the insurance company. They cannot come after you to pay these medical bills, nor can they be taken out of the settlement from your workers comp claim.

You can also get reimbursed for driving to and from the doctor by filling out a Medical Mileage Expense Form.

3.1.2 How will I get medical treatment out of state?

Your insurance company is still required to provide treatment out of state. However, you will have to find a doctor that will accept payment through the insurance company.

3.2 Temporary disability

Temporary disability is paid when you are not able to work and amounts to two-thirds of your weekly wage.32 Temporary partial disability is when you can only work part-time due to an injury. It is two-thirds of the money you are losing for the time you are not working.33

You can receive a maximum of 104 weeks of temporary disability.34

There are many factors that determine the rate and total amount of temporary disability benefits in California.

3.2.1 What are EDD benefits?

The Employment Development Department (EDD) pays State Disability Benefits (SDI) when you have an injury or illness not caused by work.

If you feel you have a work injury but the injury is denied, you can apply for EDD benefits. If your injury is later found to be a work injury, the benefits you got from EDD can be counted as disability payments you should have gotten for your work injury.35

3.3 Permanent disability

If your work injury caused a permanent change in your medical condition, you will receive money for your loss. Permanent disability is calculated when a doctor finds that your medical condition has stabilized and further improvement is unlikely. It is calculated based on the following factors:

  • Injury
  • Job type
  • Age
  • Change in future earning capacity due to the injury36

This calculation is made using a booklet called the Permanent Disability Rating Schedule.

Your disability status has no effect on your medical treatment.37

There are many factors that determine the amount of your California permanent disability benefits.

3.4 Death Benefits

Death benefits are available for an injury at work that causes the death of the worker. Depending on how many people you have in your family or take care of, those people can receive up to $320,000 to split between them.38 Benefits also include up to $10,000 for burial expenses.39

There are specific rules for determining death benefits in California workers' compensation.

3.5 Supplemental job displacement benefits

If you cannot return to regular or modified work due to your injury, you are entitled to supplemental job displacement benefits in the form of a voucher for $6,000 for job training classes.40

This allows you to train and find work in a new occupation.

4. What will happen to my job?

Your employer will likely keep your job for you. It is illegal to discriminate against or terminate someone for having a workers' compensation claim.41

4.1 Modified / light duty

If you can't do your regular work, your employer may offer you light or modified duty that is at least 85% of the wages you were making doing your regular job.42

5. What documents will the insurance company send me?

The insurance company will notify you of:

  • Whether your injury has been accepted or denied
  • Medical treatment appointments
  • Medical evaluation appointments
  • Starting and stopping of payments of temporary disability and the rate they will pay
  • Starting and stopping of payments of permanent disability and the rate they will pay
  • Notice that a medical treatment requested by your doctor has been authorized or denied
  • Notice of all hearings related to your case

6. What if I am fired for filing a claim?

Under Lab. Code Section 132a if your employer fires you, threatens to fire you, or discriminates against you in any way because you filed a work injury claim, you can receive an additional $10,000. You can also receive back pay from the time you were fired.

7. What if I have a dispute with the insurance company?

Insurance companies will often have an independent doctor review a proposed treatment plan. This process is called utilization review

Sometimes you will not agree with the insurance company about some part of your claim. This can be the injury itself, your medical treatment, your temporary or permanent disability, or any other aspect of your case.

In order to resolve any dispute, you need to have the issue heard by a judge. To do this, you file an Application for Adjudication of Claim in the Appeals Board office near you.

The application gives your injury a case number. Your next step is to file a Declaration of Readiness to Proceed. This form is a request for a hearing and you will state the issue that is in dispute.

You will then receive a Notice of Hearing that will tell you when to appear and which judge will hear your case.

7.1 Penalties

If you feel that the insurance company is unreasonably delaying or denying you benefits, you can obtain a penalty. There is a 25% penalty, up to $10,000, for any benefit that a judge finds was unreasonably delayed.43

If temporary or permanent disability is delayed, even by accident, the insurance company should automatically pay you a penalty of 10% of the amount delayed.44

8. How will my disability be calculated?

8.1 What is apportionment?

Even though you have an injury at work, you may have previously injured the same part of your body outside of work. Therefore, you will only be paid for the worsening of your condition that is the result of the work injury.

8.2 What are the AMA Guides?

The American Medical Association (AMA) Guides is the book that your doctor will use to determine your disability level.45

8.3 What if I am unhappy with the rating?

You have a right to get a second opinion regarding your permanent disability rating.46 This involves seeing a Qualified Medical Evaluator (QME) or Agreed Medical Evaluator (AME).

9. How will my claim end?

You can either agree to resolve your claim with the insurance company or have a judge issue a decision as to how much you should be awarded for your injury.

There are two types of settlements you can make voluntarily. The main difference is that one pays you a flat amount of money for your potential future medical care, while the other says that the insurance company will continue to pay for medical care in the future. Basically, one pays you all your money immediately, while the other pays it out over time.

A judge must approve both agreements.

There is a process for settlement of your California workers' compensation claim.

9.1 Stipulation With Request for Award

The Stipulation with Request for Award is an agreement for your temporary and permanent disability and leaves your future medical care open. This means that the insurance company will pay for all the future medical care that you need for your injury for the rest of your life.

However, you may not get all your money at once. Permanent disability is paid every two weeks at a set rate based on your percentage of disability.

9.2 Compromise and Release

The Compromise and Release agreement completely ends your case. You not only settle your disability but also your future medical care. The insurance company will pay you a lump sum within 30 days of the settlement approval.

Any future medical care you need for your injury is your responsibility.

9.2.1 How will my Medicare status affect my settlement?

If you are receiving Medicare when you reach this kind of settlement, you may need to have a Medicare Set Aside.

This is an additional agreement that says that some of the money you are getting in your Compromise and Release is for future medical care for your work injury. Medicare believes that you should pay for your own medical care for a work injury out of your settlement until this money runs out.

The practical result of this is that if you have this kind of agreement and you try to treat your work injury through Medicare, they will not pay for it until this money runs out.

9.3 What happens if my case goes before a judge?

A judge will hear your case and issue a decision called a Findings and Award (or Findings and Order if you lose). They will likely have you testify about your injury and review medical reporting and records related to your injury to make a decision.

9.4 If I lose, can I appeal my case?

If you do not like the judge's decision, you can appeal that decision.47 This is called a Petition for Reconsideration.

Appealing your California workers' compensation decision is a multiple level process that can go on for years.

How can I get all the benefits I deserve?

It is important to understand the workers' compensation system. The insurance company's claims adjusters and attorneys are experts at defending these claims and minimizing payments to the bare minimum.

Only with an understanding of all of the possible benefits and options for obtaining them will you obtain the appropriate benefits for your work injury.

LEGAL REFERENCES: 

  1. Cal. Const. Art. XIV § 4

  2. Cal. Lab. Code § 3202

  3. Cal. Lab. Code § 3600

  4. Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal. 3d 150

  5. Cal. Lab. Code § 3600

  6. Cal. Lab. Code § 3208

  7. https://www.dir.ca.gov/dosh/cfoi/SOI-2016.pdf

  8. Cal. Lab. Code § 3357

  9. https://www.dir.ca.gov/dlse/faq_IndependentContractor.htm

  10. S. G. Borello & Sons, Inc. v Dept. of Industrial Relations (1989) 48 Cal.3d 341

  11. Id.

  12. Cal. Lab. Code 4850(b)

  13. Cal. Lab. Code § 3212

  14. Cal. Lab. Code § 3212(1)

  15. Cal. Lab. Code § 3212(1)-(12) & 3213.

  16. Cal. Lab. Code § 1171.5

  17. Cal. Lab. Code § 4756

  18. Del Taco v. W.C.A.B. (Gutierrez) (2000) 65 Cal.Comp.Cases 342

  19. Cal. Lab. Code § 3600(a)(10)

  20. Cal. Lab. Code § 5401

  21. Cal. Lab. Code § 124

  22. Cal. Lab. Code § 5403

  23. https://www.dir.ca.gov/dwc/dwcform1.pdf

  24. Cal. Lab. Code § 5401(b)

  25. Cal. Lab. Code § 5401(a)

  26. Kaiser Foundation Hospitals v. W.C.A.B. (Martin) (1985) 50 Cal.Comp.Cases 411 

  27. 8 CCR 9881 & 9880

  28. Cal. Lab. Code § 5402(b)

  29. Cal. Lab. Code § 5402(c)

  30. Cal. Lab. Code § 5405

  31. Cal. Lab. Code § 4600

  32. Cal. Lab. Code § 4653

  33. Cal. Lab. Code § 4654

  34. Cal. Lab. Code § 4656

  35. https://www.edd.ca.gov/Disability/Employer_Workers_Compensation.htm

  36. Cal. Lab. Code § 4660

  37. Dept. of Rehabilitation v. WCAB (2003) 135 Cal.Rptr.2d 665,669

  38. Cal. Lab. Code § 4702

  39. Cal. Lab. Code § 4701

  40. Cal. Lab. Code § 4658.7

  41. Cal. Lab. Code § 132a

  42. Cal. Lab. Code § 4658.1(b)

  43. Cal. Lab. Code § 5814

  44. Cal. Lab. Code § 4650(d)

  45. Cal. Lab. Code § 4660

  46. Cal. Lab. Code § 4061

  47. Cal. Lab. Code § 5900

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