California workers compensation is based on a no-fault system to benefit both employers and employees. As a worker, you cannot sue your employer in court, and you do not have to prove your employer was at fault for your injuries. You will have to show it is an injury that occurred in your workplace or is work-related. One industry that presents a lot of opportunity for injuries is in the construction field.
California law has created a series of regulations and rules governing construction site injuries as there is a high potential for serious personal injuries as well as death at these sites. The law is designed to protect construction workers and others who may be present on the site for any number of reasons. If you know of someone, or if you have been injured at a construction site, contact an attorney to ensure you receive full compensation under the law.
Who is Responsible for Accidents at a Construction Site?
California places limits on your rights as a construction worker to sue your employer. This limitation applies to any others who have acted inappropriately to cause a construction site accident. You may; however, be able to file a case on your own behalf, or as a survivor of someone who lost their life due to the accident if any person acted negligently. Contact an attorney who has experience in construction accident law if you have suffered an injury or loss due to another’s negligent acts at a construction site.
The Contractors Liability
A general contractor performing a service for a property owner by supervising his or her employees to do the work has to use ordinary care to the workers. Contractors must provide a reasonably safe work area, maintain the site in a reasonably safe condition, and warn employees of any dangers that are not immediately obvious. If these conditions are not met and followed, the contractor becomes negligent in their duties and may be punishable for injuries that occur.
If the contractor has workers compensation insurance, this will prevent an employee from suing their employer. You are still eligible for compensation for your injuries under the 'Exclusive Remedy' doctrine. Under this doctrine, when you prove your injury occurred at the construction site while you were working, you can receive benefits without having to prove fault.
The downside to collecting workers compensation for construction site injuries is that the benefits are extremely low. What you will receive in compensation will hardly cover the damages suffered from your injury. Construction workers typically fall in the higher wage category for earnings, but the workers' compensation will only pay a fraction of what you would earn working. Workers compensation benefits also do not cover emotional distress experienced from the injury nor your pain and suffering.
Can an Employee Sue an Owner?
In the context of construction site accidents, an employee cannot sue the owner of the construction site under the same reasons that an employee cannot sue a general contractor. This rule falls under the Workers Compensation Exclusive Remedy Doctrine. The exception to this rule is if it can be established negligence was involved in causing an injury.
If you are able to prove negligence on the part of the owner, or of that with a general contractor, you are eligible to sue the party. Contact an attorney if you or someone you know has been injured as a result of actionable negligence at a construction work site.
What is Actionable Negligence?
As an employee of a general contractor, you can sue the property owner if you are able to prove actionable negligence on their part. 'Actionable Negligence' is applied to construction site accidents. To prove actionable negligence under California law means you have to show the general contractor or owner failed to correct a dangerous condition.
If they fail to correct what they knew to be dangerous and obviously a danger to workers on the site as a foreseeable hazard, they can be held accountable under 'actionable negligence'. When you sustain an injury due to this form of negligence contact an attorney to help ensure you receive full compensation for this unnecessary injury.
The general contractor or property owner might not be held responsible for warning you of an obvious danger, but he or she still has the duty to correct the problem under certain circumstances. Their responsibility may also be reduced or eliminated if they've turned the job over to a sub-contractor. If these conditions exist, the liability for the dangerous situation may still be the responsibility of the general contractor or owner:
- If they were aware that their sub-contractors work created a dangerous condition and could reasonably occur again unless precautions are taken to correct the situation
- If they personally or through another employee created a hazardous work condition
- If they should have detected the condition under normal inspection processes and had sufficient control to implement a safety measure but failed to correct
It is common practice at construction site projects that a general contractor turns over all or almost all control of a project to a subcontractor. The law recognizes that regarding the responsibility of following regulations and statues it is up to the contractor to follow these rules and maintain a safe job site.
If you suffered an injury on a construction work site due to negligent, unsafe conditions, contact an attorney who understands California Workers Compensation laws. As a plaintiff, under California's new legislation, you are allowed to introduce evidence of Labor Code safety orders and provisions in a personal injury and wrongful death case. Your attorney will assist you in putting together the proof you need with regards to CAL/OSHA safety regulations to make your case stronger.
Your Rights Under California Workers Compensation Laws
You are entitled to set benefits under the California Workers Compensation Law. One plus is that non-cash benefits and payments are exempt from taxes which are different than other benefits such as unemployment payments. Benefits you are entitled to include:
Disability payments will be paid to you as an injured worker temporarily. These payments will come to you while you are unable to work due to an injury stemming from your job. You will be given payments based on two-thirds of an average weekly wage, with state-mandated weekly maximums from the date the injury occurred.
Temporary disability payments can be paid out to you for a maximum of two years after the date of your injury. Under the law, you can technically be paid for up to 104 weeks with a 5-year time span, and if you suffer from one of the following conditions, payments can continue up to 240 weeks:
- Chronic lung disease
- Hepatitis B or C
- Pulmonary fibrosis
- Certain eye conditions
- Severe burns
Life pension payments are provided for workers who have become 70 to 90 percent disabled. The benefit is paid out in small weekly payments on top of the weekly permanent disability payments. You can receive the life pension payment for the rest of your life.
Permanent disability payments are sent to you if your injury affects your ability to return to your former job position. You are also eligible for this benefit if you are not able to return to the workforce market in any capacity due to your injury.
A permanent disability rating determines the amount you will receive. Your disability rating is dependent on the injury you suffered, your age, occupation, and the restrictions placed on your abilities from your doctor. These permanent disability payments can be received from four to fourteen years depending on the permanent disability rating given you.
Death benefits, including burial costs, are paid to dependents or spouses if you are killed while involved in a work-related accident or activity.
Vocational retraining expenses, also known as Supplemental Job Displacement Benefit will be available if you cannot return to your previous job due to the injury you sustained. This benefit is also possible if your employer does not offer you an alternative to employment for not being able to perform previous work requirements.
The benefit is paid through a $6,000 voucher for education-related retraining at a state-approved school. The benefit will cover fees, books, and the school's tuition.
Medical costs that include expenses for treatments related to medical costs covered by worker's compensation programs. These costs include any medical evaluations, surgeries, and treatments necessary for the injury you sustained. This benefit covers prescription drugs, transportation costs involved with obtaining treatments, and medical aid devices.
Workers in California will be reimbursed for their travel expenses when they need to travel to their medical appointments. The reimbursement will be determined at the current IRS mileage rates at the time of claim.
Other Possible Benefits Outside of Worker's Compensation
There are other possible benefits, and you could be eligible for them outside of what you'll receive by worker's compensation. These benefits include SDI (state disability insurance), SSDI (social security disability benefits), settlements or judgments from court judgments as a result of a lawsuit against a third party responsible for the negligent act which caused injury.
How to File a California Workers' Compensation Claim
If you are injured at the workplace, there are special procedures attached to a separate judicial system for you to report your claim. California requires every employer in the state to purchase workers compensation insurance, and if they do not comply, they will face criminal and civil penalties.
If you have filed a claim regarding an injury at a construction site and are not receiving adequate compensation, you should contact an attorney who can help you deal with the Workers' Compensation Appeals Board. Having to appeal a workers compensation claim is a stressful and confusing time. Having an attorney work with you who understands the process and system can help you file a successful appeal and receive the treatment you deserve.
To file a workers compensation claim, your injury must require more than first aid or requires you to miss more than a day of work. Speak with your employer at the time injury occurs and ask for worker comp forms to fill out. These forms are required to be available in both English and Spanish.
According to the Labor Code 5400, you are required to notify your employer within 30 days in writing that the injury occurred. An exception to this code is Labor Code 5402 which states if your employer discovers the injury happened in another manner, such as you reported to your supervisor, it is the same as providing written notice. You will not lose your chance for recovery by missing the 30-day deadline unless it causes negative consequences for your employer.
When you file your claim, you need to provide the date and time of injury, address and description of where the injury happened, which part of your body the injury effects, and your social security number. There is a notice on the claim form that tells you:
"Any person who makes or causes to be made false or fraudulent statements or misrepresentation for the purpose of obtaining or denying workers' compensation benefits is guilty of a felony."
Your employer will also have a form to fill out when you return your form to their office. It will state their name, address, date they learned of your injury, date you received the form and the date you returned it to them, name and address of the insurance company along with the policy number and their signature.
Once your employer receives the form back from you and fills out their portion, it will be sent to the insurance company. The insurance will then advise you of various rights and notices:
- What happens to your claim form once you submit it
- The procedure that will be used to start the process of your workers' compensation benefits
- What some of the benefits are available for different types of workers compensation claims
- Who you can obtain medical care from for your injury
- What the function and role of the primary physician will be
- Your rights to select or change the physician assigned to your case as stated in the subdivision of Section 3550 and Section 4600
- Where you can seek medical care while your claim is pending
- What your protection against discrimination is provided under Labor Code Section 132a
- What your rights are if you disagree with decisions made on your claim
Is There a Statute of Limitation for Filing a Workers Comp Claim?
The insurance company often uses a statute of limitations as a defense to deny paying benefits. When you file a claim with your employer, it starts the clock ticking on the statute of limitations. This statute applies to your legal rights to receive benefits within a specific time frame. The statue is typically set at one year, but some situations can alter that time. This one-year statute begins at the latest date of whichever of these occurs:
- Your last medical treatment
- Your final payment of disability benefits
- The date of your injury
If your employer has not advised you that you are eligible to file a workers compensation claim, or they fail to provide you with the form to submit your application; the statute of limitations may not apply. If you feel you are being denied a workers compensation benefit unfairly, contact an attorney who understands this process and can help you receive the benefits you deserve.
How is my Claim Investigated by the Insurance Company?
The insurance company has 90 days to accept or deny your claim once you have filed the form. If they go over the 90 days, your claim must be automatically approved. While you are waiting for their decision, you have the right to seek medical treatments up to $10,000 even if it is eventually denied.
The insurance company has the option of questioning you under oath in a deposition and is able to obtain records of any prior medical treatments you've received. They are also able to look at your previous employment records through a subpoena, and they can request an evaluation by a doctor. They are able to make these actions before they deny or accept your claim.
What Happens If Your Workers Comp Claim is Denied?
The insurance company will send you a letter, Notice of Denial. You have one year from the date of the denial letter to file an appeal to this decision. In California, you can appeal a decision by a workers' compensation judge if:
- It will cause you great harm
- You have evidence that does not support their decision
- There is any evidence of fraud
- You have new evidence to present for your case
This appeal is known as a Petition for Reconsideration, or, Petition for Removal and it will be presented in front of a three-judge panel.
A Petition for Removal is filed when a judge denied your claim before trial related to hearing time, location, discovery, evidence, or similar issues. Some of the factors that are taken into consideration when filing a Petition for Removal include:
- Whether or not you must attend a medical appointment as an injured worker
- Whether or not your specific medical records should be given to the insurance company
- When your hearing should take place and who should be present
- Any other issues where a decision was not made at trial
The issues in a Petition for Removal are different than those raised in a Petition for Reconsideration. In order for you to file a Petition for Removal, you must show:
- Reconsideration is not the right action
- Your original decision is prejudicial
- Your original decision will cause you great harm
A Petition for Reconsideration is filed when a judge issued your denial at trial. To understand how a Petition for Reconsideration works, you need to know how a California Workers' Compensation claim can end.
If you are injured and agree with the insurance company on all issues they outlined in your claim, there will be no need for a judge to make a decision on your case as you have made a settlement.
A settlement is an agreement in a workers' compensation case where you will receive injured workers' benefits including permanent disability and temporary disability along with medical care. This settlement can be obtained by a Stipulation with Request for Award or a Compromise and Release.
If you are unable to reach this agreement with the insurance company, a judge will have to make the decision through a trial regarding your case. The decision by the judge during this trial regarding your benefits will be final. You cannot bring up any new requests or appeals unless you file for a Petition for Reconsideration.
If you have been injured at work and lose the petition, your next step is to file a Writ of Review with the California Court of Appeals; if you fail at this level, your final step is to appeal to the California Supreme Court. Going through the appeal process is a stressful and challenging time, especially for someone who is trying to heal from an injury. Contact an attorney who understands this process and can help you achieve a more prosperous and less stressful result.
Find an Attorney Near Me Who Can Help with Construction Site Workers Compensation Claims
If you are dealing with an injury resulting from a construction site accident, contact Workers Compensation Attorney Law Firm at (310)-956-4277. Our attorneys understand the laws and process of filing for Workers Compensation benefits if you have been injured while working at a construction site.
Your employer and the insurance company will be represented by experienced claims adjusters as well as their company attorney. You need a professional who understands this system on your side, or you will be at a serious disadvantage. Call us and discover how we can ensure you receive the benefits you deserve.