Workers' Compensation:
The Employer's Best Friend

DISCLAMER! Although I have worked with many workers' compensation cases, I am not an attorney and not qualified to answer legal questions. Therefore, you should verify all legal matters with your attorney.

California workers' compensation law stacks the cards in favor of the employer. It pays low amounts to patients, attorneys, and physicians, while allowing insurance companies to hire any number of experts for their side.

Workers' compensation law provides a mandatory and no fault means for resolving industrial injuries. This law is the sole remedy for an injured worker against their employer with few exceptions. The liability is determined without fault and benefits are provided regardless of the negligence of either the employer or employee. The employee generally has no other legal remedy against their employer.

The law covers not only specific (or acute) injuries but also cumulative occupational diseases. An example is a back injury resulting from gradual wear and tear over a period of many years instead of from one sudden lift injury.

Many workers, especially those injured by chemicals, are not aware of a cumulative trauma. They may suspect that their work causes their illness, but do not know of their right to make a claim for it. This lack of understanding can be quite costly to a worker and their claim may not be accepted due to the statutes of limitations being exceeded. If a worker does not act promptly from the time they knew or "should have known" that their work was causing an injury, the case may be rejected.

Due to recent changes in the California Labor Code, the work related factors must be the "predominant cause" of psychiatric injury unless the psychiatric injury is caused by a violent act or direct exposure to a violent act. In such cases the threshold for psychiatric injury is "substantial cause." The threshold for psychiatric stress claims has been raised to require that the industrial stress be the predominant cause of disability.

Another point of confusion is that if there has been no damage, there can be no claim. The judge is not empowered to order changes in the workplace or reprimand supervisors or co-employees.

If the employer is covered by workers' compensation insurance, then the worker may typically not sue the employer for lost wages or pain and suffering even if the employer caused the injury by "gross" negligent acts.

If the employer has committed "deliberate" acts or a clear violation of a known safety order, the worker may be able to pursue a "serious and willful" misconduct claim under Labor Code Section 4553, which can increase in their compensation benefits by 50 percent.

Although an injured worker is entitled to reasonable and necessary medical care, for the first 30 days, the employer can control this treatment unless they have previously designated a treating physician. However after Aug. 1994, this time has been extended to 180 days, thus making it difficult to escape the clutches of the "company doctor."

The treating physician is important since they are responsible for reports which are "presumed accurate" (although it may be challenged). Therefore, it is vital to escape "company doctor" and choose your own treating physician. This is further necessary because the medical necessity of treatment is often challenged by insurance companies resulting long delays in treatment.

There are many situations where an attorney can be helpful. They may negotiate the choice of the QME, and other disputes. It should be noted that a worker who obtains attorney representation after being examined by the insurance QME cannot obtain a second report at the insurance company's expense.