What Does Arising Out Of Or In The Course Of Employment 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,
- From a fight started by the injured employee, or
- Caused during the commission of a felony. 5
Calculating California Workers Compensation Benefits
In California, if you are injured on the job, you are entitled to receive two-thirds of your pretax gross wage. This is set by state law and also has a maximum allowable amount. In 2018, for example, the maximum allowable amount was $1,215.27 per week for a total disability. This amount is adjusted annually. There is also a minimum amount that is eligible to be paid. The minimum published by the California Department of Industrial Relations for 2018 was $182.29.
Some companies have a Disability Leave with Pay program. This is not required by law in California, but it makes up the salary difference so that you receive your entire income if you were injured on the job. They take what the state pays and add more money on top of that so that you would get the entire amount that you would usually be paid.
To calculate your regular weekly wage, you divide your annual salary by 52. If someone makes $52,000 a year, this would amount to $1,000 weekly. The maximum benefit would be $666.66 in this case as state law stipulates the maximum benefit is 2/3 of your pretax gross wage.
Failure To Approve C&r
A judge has several options when considering whether to approve a C&R.
A judge can:
- issue an order;approving;the C&R
- request that the medical reporting the settlement is based on be rated for the percentage of disability by the Disability Evaluation Unit
- give the parties up to 30 days to modify the settlement as suggested by the judge
- set the case for a hearing9
Example:;Brett agrees to settle his California workers compensation claim with a C&R for $7,500. An insurance company attorney tries to get it approved by a judge at the WCAB.
The judge doesnt think $7,500 is enough money to settle Bretts case.
The insurance company contacts Greg and agree to settle the case for $12,000. The judge approves the settlement.
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You Are Allowed To Work While On Workers Comptechnically
You may be thinking about looking for a new job to help make ends meet. If you had a second job before you got hurt, you may want to continue working there. Before you do either, make sure that you understand how that could affect your eligibility for workers compensation benefits.
You may be able to continue working at your second job, or you may be able to take on a different job while collecting workers compensation benefits, if the second job will not aggravate your injuries. If you got hurt while performing physically demanding work and you cannot perform that type of work now, you may be able to take a sedentary job.
For example, you may be able to process paperwork in an office or answer customer service phone calls and still be entitled to workers compensation benefits. If you do so, the insurance company will adjust your workers compensation benefits to take your additional income into account.
You should not take a new job or continue working a second job that is as physically demanding or more demanding than the one where you got injured. If you are collecting workers compensation benefits because you say that you are too injured to work, and then you get caught performing demanding work that you supposedly are unable to do, you may be accused of fraud and may have to pay a fine or restitution. You may even be sentenced to time in prison.
What Happens If You Get Caught Working While On Workers Compensation
You may be able to work while collecting workers compensation benefits, but you must report your earnings. Misrepresenting ones job status while collecting temporary disability benefits is an example of workers compensation fraud.
If you were hurt on the job and are unable to continue to perform the same type of work, your workers compensation benefits can help you pay your bills, possibly a percentage of the amount you earned prior to the accident.
With your income suddenly reduced, you and your spouse may struggle to cover your rent or mortgage, utilities, groceries, and other essential expenses. If you expect to be out of work and collecting workers compensation benefits for several months, the effects of the drop in income may be compounded, and your family may be unable to get by.
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Infographic What Happens If I Quit
Your employer will argue you are not entitled to benefits because you voluntarily quit your job. You will have to show that you left because of your work injury. Also, quitting a job can complicate your eligibility for unemployment compensation benefits in Pennsylvania. There are many aspects of your workers comp claim that could be changed because you quit your job.
I Cant Work; Can I File For Unemployment Even Though Litigation Is Pending
Going through the whole process of filing for workers compensation and waiting to hear what the outcome is can be stressful, especially when you have no income in the meantime. This is a time when unemployment insurance would be of use to you, as you can file for unemployment while waiting for your workers compensation to process.
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What Happens When A Claim Is Denied
Insurers usually deny claims for injuries that:
- Are self-inflicted
- Are caused by fighting or horseplay
- Occurred during an employees work commute
- Occurred while under the influence of alcohol or drugs, violating company rules, or committing a crime
The injured worker may appeal the denial and possibly hire an attorney to represent them. The appeal process typically involves an administrative hearing. You can learn more about the hearing process in the role of workers’ comp hearings below.
How Long Will I Receive Sdi
You will receive SDI benefits for as long as you remain disabled, as defined, up to a maximum of 52 weeks. However, in some cases a person who is otherwise qualified might not receive a full year of SDI because they do not have enough money in their account for a full year of benefits. You will receive a statement from the EDD when you apply telling you how much money is in your reserve account.
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Getting Caught Working While Collecting Benefits
You may be caught working while on workers compensation if your boss, a coworker, a customer, or someone else submits an anonymous tip about your employment to your states workers compensation official. You may be recorded on surveillance video while working, or someone who does not know that you are collecting workers compensation benefits may post a photo or video of you working or a comment about you working on social media.
You may be subject to penalties whether you work for a private employer or for a government agency. The U.S. Department of Labors Office of Inspector General conducts criminal, civil, and administrative investigations federal laws, rules or regulations violations related to DOL programs, grants, contracts, and operations.
How The Workers Comp Claim Process Works
Employers and employees each play an important role in the workers comp claim process.
When a worker suffers a work-related injury, they must quickly report it to their employer or risk losing benefits. States have various deadlines for reporting a workers comp injury, ranging anywhere from 72 hours to 2 years. Most typically require a report within 30 days to start the workers comp claims process.
As the employer, you should follow these steps once youre told an employee was hurt:
- Get the employee medical attention. If you learn of an injury right away, help the employee receive the proper care.
- Investigate the accident. You have a duty to document what happened and identify possible safety issues. This may include detailing witness statements and taking pictures.
- File a claim. Youre usually responsible for filing a workers comp claim with your insurance provider. Rules vary, but you may also need to submit documentation to the state workers comp board.
Once a claim is filed, the workers comp insurance company will either approve or deny it. You may be involved if an investigation into where and how the injury happened is needed. The insurance company may also review medical files and accident reports.
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Understanding Employer Immunity And Exceptions To It
In most scenarios, workers’ comp laws in California prevent employees from suing their employers for work-related injuries. Workers’ compensation laws establish “employer immunity” because employers are required to pay workers’ compensation benefits regardless of fault rather than requiring employees to prove that the employer was negligent.
That said there are exceptions to employer immunity. Here are some examples of situations in which you may be able to sue your employer:
- Your employer intentionally caused your job-related injury.
- Your employer showed gross negligence and your injuries occurred as a result. This is common in cases where an employer allowed a hazardous condition to exist and the accident occurred as a result.
- Your employer denied your workers’ compensation claim in bad faith. You may be able to, in such cases, file a lawsuit after you’ve exhausted other remedies such as appealing the denial of benefits.
- Your employer made the product that caused your injuries. If a defective product such as a machine or equipment made by your employer injured you, then, you may be able to file a product liability claim against your employer.
- You are an independent contractor. If this is the case, the company for whom you did the job, is technically not your employer. Therefore, employer immunity doesn’t apply in such cases.
The Case Of Lewis V National Venders
Also, the Labor & Industrial Relations Commission in Jefferson City, ruled in 2013, Lewis v. National Venders, that unemployment only cancels out TTD but does not offset PTD which are weekly payments made to the employee after reaching MMI and who is found to be unemployable from any work:
The Second Injury Fund urges us to grant to it a credit against its permanent total disability liability for periods during which employee was receiving unemployment compensation. The Second Injury Fund argues that allowing an individual to receive unemployment compensation benefits and permanent total disability benefits for the same period is not good public policy. We are not unsympathetic to the Second Injury Funds argument. However, we are bound to apply the law as the legislature enacted it. To that end we must construe the provisions of the Workers Compensation Law strictly.
Strict construction means that a statute can be given no broader application than is warranted by its plain and unambiguous terms. The operation of the statute must be confined to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. A strict construction of a statute presumes nothing that is not expressed.
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What Happens When A Workers Comp Claim Goes To Trial
When a workers compensation lawsuit is brought to court, the judge will evaluate the case and first determine if the claim is valid and, if so, propose a settlement amount that the court deems fair. Once the court decides on the amount, both the insurer and the employee that has filed the claim can comply with the decision or choose to appeal either the whole settlement or certain parts of it.
The typical time allowed for an appeal is 30 days. If the insurance company unsuccessfully appeals the court decision or accepts the proposed amount outright, the settlement is complete and the carrier will pay out the agreed amount.
Get Professional Help With Your Workers Compensation Case
Navigating the workers compensation process can be complicated and confusing. Since state laws vary significantly, many people have misconceptions about how the system works and what they may and may not do while collecting workers compensation benefits.
If you had another job before you got injured, you may be able to continue working there, under some circumstances. You may also be able to take on a new job while you are collecting workers compensation benefits. It is important to understand the rules in your state and to comply with them, so you do not get charged with fraud and face serious penalties.
An attorney who is familiar with your states laws and who has experience handling workers compensation cases in your area can tell you what you need to know and guide you through the process of filing a claim and appealing the decision if your claim is denied. A lawyer can also tell you what happens if you get caught working while on workers compensation.
Ben Crump Law, PLLC, has represented clients throughout the United States who suffered serious injuries on the job. A member of our team can work with you to help you follow your states laws. Call our office today at .
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Calculating Online Can Be Confusing
We understand that attempting to calculate your own workers compensation benefits can be confusing. This can happen even after reviewing excellent information that you find online.
It also can be the case that you have specific circumstances that may affect how your benefits are calculated. You may have medical conditions that require you to get multiple opinions from physicians. Based on the opinions of different physicians, your compensation amount can change.
Also, you may be trying to meet all of the various deadlines required to receive all of the compensation you are rightly owed. Navigating all of this can be challenging.
What If My Disability Lasts Longer Than 52 Weeks
If your disability is expected to or does continue past one year, you may be eligible for Social Security Disability Insurance or Supplemental Security Income , depending on the type of disability and how severe it is. See our fact sheet Short-Term and Long-Term Disability Benefit Programs for more information on SSDI and SSI.
In addition, some employers provide private insurance, called Long Term Disability Insurance to their employees with long-term disabilities. If you believe you may be covered by LTD, you should contact your employer to find out about benefits and eligibility and to request a copy of the Summary Plan Description.
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Exceptions You Should Know About If You Already Quit
If you are injured on the job and file a workers compensation claim but then leave your place of employment, you will still retain your right to some of your workers compensation benefits. Depending on your specific situation, you might retain all of your benefits.
If you quit your job before you filed a workers compensation claim, it is much harder to prove your claim. Count on facing much more scrutiny when you do file a claim. While it is true that the validity of your claim depends upon when the injury was suffered and not on when you file, you may have a difficult time proving your eligibility for benefits.
Employers and insurance companies are very suspicious when employees make claims after they quit a job. They see this as a way for a former employee to collect a weekly wage even though people who voluntarily leave their jobs are not eligible for unemployment benefits.
To prove your injury took place at your previous job, you will probably need to provide a statement from a coworker or superior who witnessed your accident. There may be video footage that is available from your workplace. If you went to an emergency room after you were injured, there may be medical records you can use to prove when the accident happened.
There can be exceptions to this, but you should talk with an experienced workers compensation attorney if you were injured on a previous job but have failed to notify your former employer within the 120-day timeline.
Can I Sue My Employer After A Work Injury
Employees typically cannot sue their employers for work-related injuries. However, it is important to remember that there are exceptions. Workers’ compensation laws in California require employers to pay for employee injuries regardless of who was at fault. In return, employers are immune from personal injury lawsuits from workers in a majority of situations. There are still exceptions to this rule and there are scenarios in which injured workers can hold their employers accountable for their damages and losses.
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Ability To Continue To Get Medical Treatment
An injured worker is entitled to lifetime medical care for a work injury if its medically necessary. A Stipulation and Award lists the parts of the body that have lifetime medical care.
The injured worker can ask for a single cash payment from the insurance company instead of payments for lifetime medical care. This is part of a Compromise and Release.
The cash payment is an estimate of future medical care. The injured worker is then responsible for his or her own medical care for the injury from the time of the settlement.
Example:;Daniel injures his shoulder at work and has rotator cuff surgery. The doctor says Daniel may require another shoulder surgery in the future.
Daniel decides he wants the cash value of the future surgery instead of having the insurance company pay for the surgery.
As part of his Compromise and Release, Daniel got an extra $10,000 for the value of the future surgery. If Daniel later needs shoulder surgery, it will not be paid by the workers compensation insurance company.
If Daniel settles his case with a Stipulated Award instead, the insurance company would cover the cost of the shoulder surgery or other medical treatment for that shoulder for the rest of Daniels life.