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California workers' comp attorneyOne of the more common reasons that injured workers may avoid filing a Workers’ Compensation claim is a fear of retaliation. Especially in difficult economic circumstances, employees may be very fearful of losing a good job. It may seem preferable to deal with a worksite injury alone, through your own medical insurance rather than risking job loss during the next round of layoffs. However, in California, it is illegal for an employer to fire someone for filing a claim with Workers’ Compensation. Doing so would be a form of wrongful termination, and you could have legal recourse. If a fear of retaliation is keeping you from filing for Workers’ Compensation, our attorneys may be able to help set your mind at ease and get you the funding you need. 

What California Law Says About Retaliation and Workers’ Compensation

Under California state law, your employer cannot fire you - or even threaten to fire you - because you filed a Workers’ Compensation claim or plan to do so. If you make your intention to file a claim known and are threatened with the possibility of losing your job, your employer is breaking the law and could actually be guilty of a criminal misdemeanor. The same is true if your employer actually goes through with firing you. 

Employers will sometimes make up excuses to fire employees who have filed for Workers’ Compensation. For example, they may terminate your employment the second you file a claim and then try to say you were actually fired for being 45 seconds late that one time. This approach is rarely effective - courts are smart enough to see right through the ruse. 

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California workers' compensation lawyerAs if getting hurt at work is not bad enough, finding out that your rightful claim for Workers’ Compensation has been denied can make your life that much harder. Claims can be denied for any number of reasons, reasonable or otherwise. It could be that you are having a hard time proving that a repetitive stress injury was caused by your work, or that someone is under the false impression that you are exaggerating the extent of your injury.

Whatever reason you were given for having your claim denied, there may be steps an attorney can take to appeal the board’s decision and hopefully get you the compensation you need to get better. Cramer + Martinez knows how a denied claim can affect the financial health of your whole family, and we will fight to make it right. 

Appealing a Denied Workers’ Compensation Claim in California

If your initial claim was denied, do not panic. You have the right to appeal the decision, and it is best that you do so with assistance from a trained attorney. The first order of business will be to figure out why your claim was denied. Reasons your claim might have been denied include: 

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Santa Clara County Workers' Compensation LawyersLosing a limb is among the most dreaded types of permanently disabling injuries that one can suffer in the workplace. When you have lost an arm or a leg, or even a finger, it can take a long time for you to get back to a point where you can perform your normal activities of daily living. You will likely need extensive physical therapy, with or without a prosthesis, before you can do things like dressing yourself or cleaning your home. Having a limb severed also tends to come with a lot of pain - the pain alone associated with this injury can keep you from returning to work. While you may eventually be able to adjust to a new way of doing things, you may never be able to return to the type of work you were doing before the injury. Because this is such a major type of Workers’ Compensation claim, it is best to have an attorney handle your case. 

What You Should Know About Workers’ Compensation After Losing a Limb

While some people do very well with a prosthetic limb, others do not. At no point should you feel any obligation to be “inspiring.” Physical and mental recovery after the loss of a limb is an intensely personal affair. You deserve to receive compensation so that your injury does not come with a big financial hit. This is what Workers’ Compensation is for. 

Here are few considerations you should keep in mind as you explore your available options:

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California work comp lawyerBrushing off a “minor” injury in the workplace can come back to bite you. Some injuries or accidents may seem like no big deal in the moment, only to become a very big deal later on. If you report the injury right away and have the accident thoroughly documented, then you will have solid evidence that you got hurt at work should you need to pursue a Workers’ Compensation claim later on. However, if you fail to report what happened, it might be more difficult to establish that your injury is a workplace injury.

There are a number of reasons that people do not report workplace accidents, ranging from embarrassment to a belief that the injury will quickly heal on its own. Reporting the injury anyway can preserve your claim just in case. 

Why You Should Report Every Injury, Every Time

“Minor” injuries can turn out to be a much bigger deal than you may have anticipated. Reasons that you should always report every workplace accident or injury include: 

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Gilroy workers compensation lawyersSome workplace injuries are much more serious than others. After a simple injury like a sprained ankle, you may need a few weeks off to recover before returning to work. In that case, your claim would be fairly straightforward - you recover lost wages and medical expenses, and you are back at work like nothing happened. However, some workplace injuries can be much more serious. A serious accident that causes a spinal cord injury or traumatic brain injury can leave you permanently unable to return to work. You may have to change career paths, which often involves taking a serious pay cut. Or, you may never be able to work again in any capacity. In these instances, you may be eligible for permanent disability benefits. If you are in this type of situation, it is crucial that you reach out to an attorney for help applying for Workers’ Compensation

When Am I Eligible for Permanent Disability Benefits?

Applying for permanent benefits can be trickier than applying for temporary benefits. You will need some patience, as you cannot apply immediately. It is impossible to prove permanent disability until a doctor has determined that your injury is no longer improving and is unlikely to improve in the future. Depending on the injury, this could take months. A worker with a traumatic brain injury may spend up to a year in a rehabilitation facility while slowly improving as time goes on. Of course, in other cases, it is fairly clear that improvement is unlikely to occur. For example, if an accident leaves you paralyzed or missing a limb, your condition is not likely to get better. 

If your doctor determines that your condition is as good as it is likely to get, but you are still not able to return to work, you might be eligible for permanent disability payments. 

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b2ap3_thumbnail_private-investigator-work-comp.jpgIn our last blog post, we discussed the role of a Workers’ Compensation investigator. These private investigators are assigned to Workers’ Compensation recipients who have been out of work. Their job is to verify that the recipient appears to have the injury they claim and the physical limitations they claim. Just because one of these investigators has been assigned to your case does not mean that anyone necessarily thinks that you are faking. That said, if you suspect that a Workers’ Compensation investigator is following you, there are a few steps that you can take to protect yourself. One of the first steps you should take is to contact an attorney who can offer you more specific advice that pertains to your individual situation. 

Know the Signs of Being Under Surveillance

You may notice signs if a Workers’ Compensation investigator is watching you. Look for vehicles you do not recognize sitting parked on your home street near your house, especially if the vehicle is occupied. If you notice the same vehicle while you are out and about, it is likely that you are being watched. While driving, try making three right or three left turns. If the same car is still behind you, you are very likely being followed. 

Also, try to pay closer attention to the strangers you see out in public. If you see the same individual repeatedly in multiple locations while you are out of work on Workers’ Compensation, it could be an investigator. 

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Gilroy workers compensation lawyerIf workplace injuries are more common in your line of work, you have probably heard the horror stories. Someone else in your industry got hurt at work, filed a Workers’ Compensation claim, and was awarded temporary disability pay. Then, some private investigator jumped out of the bushes in front of his house, snapped a picture of him doing something innocuous like sweeping his porch, and suddenly his claim has been denied. There is some truth—as well as some misleading implications—in stories like this.

While a Workers’ Compensation investigator may be assigned to your case, your claim is not likely to be denied unless you are seen doing something that your injury should prevent you from doing. If you suspect that one of these investigators has been assigned to your case, it is important that you speak with a lawyer right away and follow their instructions. 

The Role of a Workers’ Compensation Investigator

The goal of these investigators is to identify fraudulent claims. While the vast majority of workers who file a claim through Workers’ Compensation are perfectly legitimate, there are some people who try to take advantage of the system by claiming that they cannot work when they could. 

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California workers compensation lawyerWorkplace violence is a nationwide problem. Anyone in any line of work could experience an assault while on the job. In the last few years, health care workers have been particularly vulnerable to being attacked by patients or their family members. Some lines of work may inherently involve some level of violence - for example, if you are a bouncer at a nightclub then it is far more likely that you may be injured intentionally while working. In other lines of work, assaults are far less likely but do still happen. The good news is that if you were attacked while working, you are likely eligible to receive Workers’ Compensation. Depending on who the assailant was, you may also have additional options for pursuing a claim. 

Getting Workers’ Compensation After Experiencing Workplace Violence

No one should be attacked while they are trying to do their jobs. Even if you were not seriously injured physically, you may still have suffered a significant emotional injury. Being assaulted can be traumatic for anyone. The costs associated with a workplace assault are likely to involve both medical treatment and counseling or therapy. 

Whether the injuries you sustained in your workplace were caused by an accident or by an assault, Workers’ Compensation is most likely available. You will need to show that you were working when the attack happened. This means that you must have been actively engaged in your job duties or on the clock at the time you were attacked. If the assault happened while you were working, it does not matter whether the assailant was someone you work with or a third party. 

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California workers comp lawyersFor as straightforward as Workers’ Compensation may seem, actually receiving it can become quite a challenge. Workers’ Compensation is a type of insurance program for employers, designed to help cover expenses when someone gets hurt on the job. Workplace injuries can happen to anyone, whether you work on a construction site, in a medical facility, or at a desk. One fact that often surprises injured workers is that they do not need to prove that their employer was at fault for the accident. Even if an employer follows the correct safety protocols for the type of work being performed, injuries can still occur. This is why you are not required to show that your employer was negligent in any way. 

However, there are a few things that you do need to prove before you can collect Workers’ Compensation benefits. Our lawyers will help you begin collecting the evidence you may need right away, so it is important to call us as soon as you can after a workplace accident. 

What You Need to Prove in a California Workers' Compensation Case

In order to be eligible for Workers’ Compensation in California, you must be able to show that you were: 

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Gilroy workers' comp attorneyMore and more people are doing the bulk of their shopping online rather than in a brick-and-mortar retail store. This has resulted in warehouses and order fulfillment centers popping up everywhere. These centers can employ hundreds of people and often have high turnover rates. A high percentage of warehouse employees are new to the job and may not have received adequate training in safety practices.

Anyone who has spent time working in a warehouse or order fulfillment center can tell you that safety training is essential when you are working in an enormous building filled with rows of products stacked to the ceiling. It is no surprise that workplace injuries are not uncommon in these locations. If you are injured on the job, you are likely entitled to financial help through Workers’ Compensation. An attorney can help make sure that you receive the full amount of compensation you deserve. 

What Are Some Common Causes of Injuries in Order Fulfillment Centers?

Accidents that occur in order fulfillment centers tend to fall into one of a few categories, including: 

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b2ap3_thumbnail_work-truck-vehicle-accident-liability.jpgDetermining liability after a car accident can be tricky - even trickier if the accident was work-related. As a general rule, if you were actively carrying out a work-related task, you can probably use Workers’ Compensation to recover damages. However, depending on what happened, there could be a liable third party you could pursue compensation from. A number of circumstances and factors can affect liability when an auto accident is work-related. In some cases, you may have multiple options. If you were hurt in a car accident at work, you will probably need to contact an attorney who can assess your case and determine how best to go about getting you compensated. 

What If I Get in an Accident on My Commute?

If you were merely commuting to or from work, you were probably not on the job for purposes of getting Workers’ Compensation. This does not mean you are out of luck - you will just need to pursue compensation from the responsible driver or their insurance company. The same applies to accidents that occur while you are on break. 

There is an exception to this rule. If you were driving a company vehicle and your accident was caused by a vehicle defect, then you may be able to pursue Workers’ Compensation. 

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San Jose workers' compensation attorneyThe Occupational Safety and Health Administration (OSHA) sets out safety standards for a good reason. Without these federal standards in place, quite a few more workers would be trying to do their jobs in an unsafe environment. OSHA standards exist to force employers to take employee safety seriously and put measures in place to minimize the occurrence of workplace injuries. However, there are some employers who still stubbornly refuse to comply with OSHA’s safety requirements. When a violation occurs, everyone on the job site could be at risk.

Each year, OSHA publishes a list of the most commonly cited safety violations. Sadly, these violations are often not discovered until someone gets hurt and needs workers’ compensation. Note that you do not need to prove that your employer was at fault or in violation of a safety law to receive workers’ compensation. However, a violation does increase the chances that an injury will occur. Any time you suffer a workplace injury, the smart move is to immediately contact an attorney. 

What Are the Most Common Categories of OSHA Violations?

While it is possible to get hurt at work even when all safety procedures are correctly followed, injuries are more likely to occur when they are not. Some of the most common types of safety violations include: 

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California workers comp attorneyNo one wants to end up in a position where they need to rely on Workers’ Compensation. You would almost certainly prefer that the workplace accident or incident that left you injured had never happened. Being sidelined due to a workplace injury can bring a lot of new anxieties and struggles into your life. On top of trying to recover physically and emotionally, you are probably worried about recovering financially as well. The expenses associated with a workplace injury can add up very quickly when you stop to think about it. The good news here is that Workers’ Compensation should cover most if not all of your expenses related to the accident - including future costs you may not even be thinking about yet. A Workers’ Compensation attorney can help you come up with a complete list of your accident-related costs that could be compensable. 

Compensable Expenses After a Workplace Accident

Generally speaking, just about any expense or loss you incur as a result of your workplace injury should be compensable. It is important to have an attorney help you take a thorough accounting of your costs related to the accident. You probably know that your current medical bills and some lost wages can be recovered, but you could also be compensated for: 

  • Future medical care - Rarely can a major workplace injury be treated in just one trip to the ER or Urgent Care. You may not have a complete understanding of what kind of medical care you will need going forward yet. In some cases, you will need to wait and see if an injury improves with conservative treatment before more drastic interventions like surgery are decided on. 
  • Job training - If you will not be able to return to the job you had due to your injuries, but you are not totally disabled, you could potentially receive funding to help pay for vocational training or education that can help you start a new career. 
  • Disability - Whether you are permanently, temporarily, partially, or totally disabled, you can receive compensation for your lost present and future earnings due to the disability. An attorney can help you calculate the amount of income you would have earned going forward before and after the accident. 

These are just a few costs and losses you could be compensated for through workers’ compensation. Make sure that you speak to an attorney before you consider accepting a settlement offer. 

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California workplace injury lawyerWorkplace accidents can happen when you least expect them. What starts out as a perfectly normal day at work can end in a disaster. Whether your job is largely considered “dangerous,” like types of construction work, or mostly safe, like retail work, the fact is that a workplace injury can happen to anyone. Even people with desk jobs have been injured at work. This is why it is so important for everyone to know exactly how to respond just in case it does happen to you. The way you handle the situation as it unfolds can be extremely important later. Making a mistake could harm your case when it comes time to seek compensation, while handling everything correctly could make it much more difficult for your employer to deny your claim. One of the most important things you can possibly do after a workplace injury is to contact an attorney who can offer you further guidance. 

The Moments After the Accident Matter

Everything you do from the second the accident happens counts. While the most important thing is to prevent further harm and get to safety, some other helpful tips for reacting to a workplace accident include: 

  • Follow procedures - If your company has a policy or procedure to follow during this type of accident or incident, like “if a fire starts, hit the emergency shutoff and clear the floor,” follow it. Failing to follow your company’s safety protocols can be used against you to argue that you made your injury worse by not taking the right steps. 
  • Stay down - Unless you absolutely need to move to get out of harm’s way, it is generally best to remain as still as possible until first responders arrive and tell you otherwise. Back and neck injuries can be worsened, sometimes drastically, if you get up too quickly. 
  • Watch your words - Avoid saying things like, “I am okay,” or “It was not your fault.” It is generally best to avoid making any sort of assertion about your physical condition or how the accident happened until you have met with an attorney. 
  • Get care - Even if you do not think your injuries are particularly serious, it is best to let a doctor check you out. Adrenaline, the chemical involved in your body’s fight-or-flight response, can act as a natural painkiller so that you do not realize how badly you have been hurt right away. Besides, your workers’ compensation should cover your initial medical bills, so you have little or nothing to lose by seeking prompt care. 
  • Take notes - Try to remember and make at least a mental note about everything that happened before and during the accident. 

Once you safely can, it is a good idea to get in contact with a qualified workers’ compensation lawyer. Even if you anticipate a relatively smooth claims process, having a lawyer handle it for you can give you some much-needed time to rest and recover. 

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Santa Clara County workers compensation attorney

Originally published: March 31, 2021 -- Updated: April 27, 2022

UPDATE: In cases where workers experience mental disorders, they may struggle to perform work and meet all the requirements of employment. Because of this, they may experience negative consequences, and they could even lose their jobs. However, California law allows workers to pursue workers’ compensation claims in these situations even after the termination of employment, as long as the circumstances that led to the injury occurred before the termination took place.

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b2ap3_thumbnail_gilroy-workers-comp-attorney.jpgA workplace accident or injury can lead to multiple types of difficulties that may affect a victim’s personal and professional life. While workers’ compensation benefits will usually be available to anyone who has suffered a work-related injury, there are some situations where workers may be hesitant to pursue these benefits out of fear that they will face consequences at their job. However, worker’s are protected against workers’ compensation discrimination, and they should be sure to understand their rights in these cases. This can ensure that they will be able to receive the benefits they deserve while preventing their employer from taking illegal actions against them.

What Is Workers’ Compensation Discrimination?

Every employee has the right to file a workers’ compensation claim and receive medical benefits, temporary or permanent disability benefits, or other applicable benefits following a work-related injury. It is illegal for an employer to penalize an employee for filing a workers’ comp claim, reporting a work injury, or otherwise asserting their rights. 

Workers’ compensation discrimination can take multiple forms, including:

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b2ap3_thumbnail_santa-clara-county-workers-comp-lawyer.jpgWhen a person is injured in a workplace accident or experiences injuries, illnesses, or other health issues that arose out of the work they had performed, they will usually be able to receive workers’ compensation benefits. Most of the time, these benefits will be available no matter who was responsible for an injury. An employee will not need to show that their employer acted negligently or otherwise caused them to suffer harm, and as long as they can show that their injuries were work-related, they will be able to receive medical benefits and temporary or permanent disability benefits. However, there are some situations where an employee may be able to receive additional compensation if they can demonstrate that they were injured because of “serious and willful” misconduct by their employer. 

What Is Serious and Willful Misconduct?

If an employer knowingly acted in a way that put their employees at a significant risk of harm, an injured employee may file a serious and willful misconduct petition with the Department of Workers’ Compensation (DWC). These types of claims may only be filed if a person has an open appeals case with the Workers’ Compensation Appeals Board (WCAB). If a person can show that their employer engaged in misconduct that was considered to be serious and willful, the amount of workers’ comp benefits they can receive will be increased by 50. For example, if the total amount of a person’s benefits for a work-related injury were calculated to be $100,000, their employer would be required to pay an additional $50,000 in benefits on top of the original $100,000.

Showing that an employer’s actions were considered to be serious and willful can often be difficult. While these cases may involve situations where an employer purposely acted in a way meant to cause a person to suffer an injury or other forms of harm, most of the time, an employee’s claims will be based on safety violations by an employer. There are multiple types of violations that may occur, and to show that a specific violation was serious and willful, an employee will often need to provide evidence that the employer violated regulations put in place by the Division of Occupational Safety and Health (Cal/OSHA). 

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For people who are injured while at work, workers’ compensation can provide them with benefits that address the effects of their injuries. To ensure that they will be able to make a full recovery, medical benefits will fully cover all expenses related to the treatment a person receives. If a person will miss work or lose income because of their injuries, they may qualify for temporary disability benefits while they are recovering, or they may receive permanent disability benefits to address an injury that will affect their ability to work and earn income in the future. While these benefits will be available for injuries that are considered to be work-related, some confusion may arise about whether a specific type of injury is covered by workers’ comp.

Understanding Work-Related Injuries

Generally, a person will qualify for workers’ compensation if they suffer an injury that occurred while they were working. Work-related injuries include:

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b2ap3_thumbnail_shutterstock_1167692650.jpg Truck drivers and delivery drivers are an increasingly important part of our economy. The volume of trucks on the road has been increasing in California and is projected to continue to grow. If you drive for a living or driving is part of your job, you know the risks you run every time you get behind the wheel. You can face danger not just from other vehicles on the road but also from the repetitive stresses of driving and from loading or unloading cargo.

Types of Injuries Truck Drivers and Delivery Drivers Suffer

 Traffic-related accidents account for most of the serious work-related injuries and deaths of truck drivers. If you are involved in a traffic accident, your injuries may have a wide range of severity, including:

  • Minor cuts and bruises

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gilroy work injury lawyerWhen a person suffers a work-related injury, they will usually be able to receive workers’ compensation benefits. Employers are required to maintain workers’ compensation insurance, and their policies provide coverage for all employees who are injured in workplace accidents or for other reasons that are related to the work they have performed. Workers’ comp provides multiple types of benefits, including medical benefits that pay for all treatment a person receives following an injury, as well as disability benefits that address their loss of income. In many cases, disability benefits are temporary, and they will allow a person to continue receiving pay while they are recovering from their injuries. However, in cases where injuries will affect a person for the rest of their life, permanent disability benefits may be paid.

When Will a Person Receive Permanent Disability Benefits?

While a person is recovering from a work-related injury, they may receive temporary disability benefits, and these benefits will generally pay two-thirds of the wages that they earned before they were injured. A person can receive temporary disability (TD) until they reach the point of maximum medical improvement (MMI) or their doctor determines that their condition is permanent and stationary (P&S). If the person’s injuries will continue to affect them after reaching this point, their doctor will submit a report to the workers’ compensation claims administrator stating that they have a permanent disability, and the person will be able to begin receiving permanent disability (PD) benefits.

How Are Permanent Disability Benefits Calculated?

After receiving a report of permanent disability, the Disability Evaluation Unit (DEU) will review reports from the doctor or another qualified medical examiner and determine the person’s PD rating, which will be used to calculate the amount of benefits they will receive. A PD rating is determined using multiple complex formulas, and these formulas will take into account the part of the body that was injured, the extent of impairment affecting that body part, how the injury will affect a person’s future earning capacity (FEC), the person’s occupation, and their age. If multiple parts of the body were injured, the ratings for each body part will be combined to determine a total PD rating.

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