What do you do if you’re injured on the job? Are you entitled to compensation? How do you get it? What happens if you can’t work? Is your only recourse to sue your employer? Is there no other way? California and every other state have a system of compensation of “workers’ compensation” which is set-up as an alternative to costly, and slow litigation. This post will go over workers’ compensation, how it was developed, how it interrelates with litigation, and how you can recover for scaffolding injuries.
History of Workers’ Compensation
California was a pioneering state for workers’ compensation. In the late 1800s, many corporations (specifically railroads and steel) were subject to numerous lawsuits relating to the injuries their workers’ suffered as a result of working for their various employers. This system was untenable because it was bad for everyone involved. Corporations didn’t like this system because each claim was expensive to litigate; even if the corporation wasn’t at fault. Workers didn’t like this system because it could take years to resolve their claim, they couldn’t collect income while the claim was pending, and they needed to prove their employer was at fault for their injury; which was a difficult burden to meet. California was one of the first states to pass workers’ compensation with the Boynton Act of 1913, which started the shift in workers’ compensation from adversarial to investigatory and cooperative.
Workers’ Compensation and Civil Lawsuits: the Relationship
The groundbreaking change between workers’ compensation and civil litigation is that it changes the adversarial relationship. Under the old system, you needed to prove that your employer was at-fault which encourage your employer to “clam up” and refuse any further cooperation (i.e., assisting with medical issues) for fear that it could result in an admission. The result is that everyone spends more money and the claim takes years to resolve.
Workers’ compensation changed the system from adversarial to cooperative. Now, employers pay into a statewide workers’ compensation insurance fund which is used to pay for worker injuries. Workers can apply to this insurance for compensation for their injuries, lost wages, and other costs related to their injury. Workers no longer need to prove that their injury was due to their employer’s negligence – they only need to prove that they were working for their employer, in the ordinary course of the duties, when the injury occurred.
Workers’ compensation was one of the first “no-fault” insurance schemes. Under no-fault, you don’t need to prove that anyone caused your injury to recover – you only need to prove that your injury occurred and insurance takes care of the rest. Employers get to save money on litigation and workers’ get quicker payouts for their injuries. The one big sacrifice employees give up is that they can only recover economic damages (i.e., damages that you can measure with receipts; you cannot recover for pain and suffering, loss of companionship, or other non-economic damages). This post will discuss more fully on what is recoverable under workers’ compensation below by analyzing it in the context of a scaffolding injury.
Construction Injuries Generally
Construction is one of the biggest sources of workers’ compensation claims both for the high number of workers employed in the construction sector and the high rate of injuries due to the nature of the job. As you are probably aware, construction jobs run the gamut from laborers clearing fields in preparation for a job to specialized, skilled, trade-employees such as electricians and plumbers. All of these individuals are at risk of injury due to fallen objects; trench collapses, electrocution, malfunctioning equipment, and many more causes. In 2012, an estimated 183,000 workers were injured on the job, and about 775 were killed in construction-related accidents.
Common sources for construction injuries
The Occupational Safety and Health Administration (“OSHA”) is responsible for studying workplace safety, investigating bad actors, punishing them if necessary, and promulgating new rules to improve worker safety. As part of its duties, OSHA also studies common workplace injuries to identify potential policy areas that could serve a place to draft new rules or institute programs to improve safety.
OSHA identified the four most common sources of fatal injuries:
- Falls: accounted for 381 of 971 construction deaths in 2017 (approximately 40 percent of all deaths). A significant source of those falls is from workers off of scaffolding which will be more fully discussed
- Hit by falling object: Dropped objects are another common source of fatal injuries and resulted in a little more than eight percent of fatal
- Electrocution: Another major source of fatal injuries is electrocution because of the uncertainty of open and closed currents during an ongoing construction project – account for 71 deaths in 2017.
- Caught/trapped between objects or barriers: Getting caught between two barriers (i.e., crushed, stuck, or compressed), or equipment is another major source of fatal injuries resulting in 50 fatalities in 2017. This category includes a broad range of accidents including getting caught by equipment, crushed by collapsing structure, or compressed by materials.
Common violations for employers
Employers are required to use safety equipment in compliance with OSHA and state rules. These rules are prepared to minimize worker injury while also not burdening industry with onerous expenses. These rules are prepared by experts, in response to studies, and after extensive review, therefore, they are worth following because they represent the culmination of dozens of experts opinions as to how to improve safety.
Unfortunately, despite these rules, there are many employers who disregarded these minimum safety standards and continue to violate them. OSHA is charged with investigating and punishing employers who violate these rules and also studies the most common rules that are broken to improve the detection and punishment of offenders. The ten most common offenses:
- Fall protection: employers are required to give their employees safety harnesses and other protective equipment to catch workers in the event they fall. Workers should have access to this equipment and training as to how to properly use it.
- Moreover, workers cannot be compelled to work in dangerous areas without this protective, fall equipment. Specifically, workers who are working six feet or higher must have safety equipment. Approved safety equipment includes guardrails, nets, and harnesses to catch workers.
- Hazardous materials communication: OSHA requires employers to educate their workers about dangerous chemicals and other hazardous materials to improve worker handling and use of these dangerous Think about it, if you don’t know what you’re handling is extremely dangerous – you’re not as likely to take safety as seriously.
- Scaffolding: employers must use scaffolding that is rated to support the weight of its workers (remember, more than one of you might be standing on that scaffolding so it must support all of your weight). Moreover, the scaffolding must include weights and counter-weights to ensure that when you’re walking on it, it doesn’t tip over and spill you off the side. The scaffolding must be erected by someone with training who knows how to set it up. There are many more rules regarding how scaffolding is set-up, and all of them are done to improve safety.
- Respiratory protection: another common issue faced by workers, especially on construction sites, is inhaling dangerous materials; therefore, employers are required to provide their workers with respiratory gear to filter out dangerous
- Control of hazardous energy: control of hazardous energy sounds like an esoteric, physics problem, but the reality is that many machines build-up energy and when activated may release that energy all at once on unsuspecting workers. Employers must utilize technology that minimizes the rapid release of energy to protect workers. This is a common issue on construction sites, oil and gas wells, and other sites that bottle up energy.
- Ladders: yes, even ladders are heavily regulated, and yes since ladders are on this list employers do not use them safely or correctly. Proper ladder safety is especially important on construction sites, and OSHA has specific rules regarding how much weight ladders must be capable of bearing, devices that prevent them from slipping, and other rules.
- Industrial trucks: OSHA also institutes rules for the proper operation and maintenance of industrial trucks (think forklifts, platform lift trucks, tractors, ). These machines work closely with other workers which mean they need to be used safely. Most motorized cars and trucks do not interact with people; they interact with other cars on the road. However, these machines, especially on construction sites, are used in close proximity to workers which means one false move could seriously injure or kill a fellow worker.
- Training for fall protection: you may notice that fall-related activities appear on this list four times (fall protection, scaffolding, ladders, and training) and that is because falls are, by far, the largest source of severe and fatal injuries across all industries. All the fall protection equipment in the world is worthless without the training to use it properly.
- Machinery equipment protection: these rules are the inverse for industrial truck protection rules. These rules focus on providing ensuring employers use safety equipment and guarded areas to separate workers from machines wherever possible to minimize the interactions only to those situations in which it is necessary.
- Face and eye protective equipment: your face and eyes are among the most vulnerable points on your body and the most susceptible to severe damage in the event of an accident. Helmets, safety goggles, and masks can mean the difference between blindness and a minor concussion. These protections are especially crucial for construction where small particulates are flying through the air all the time, and a few errant slivers of steel can severely damage a worker’s eyesight.
Recovering for Scaffolding Injuries
As established above, your employer is required to ensure that the scaffolding you and your fellow workers stands on is sturdy and reliable. There are specific rules regarding who can set-up the scaffolding, how to set-up the counter-weights, how it should be arranged to ensure maximum stability and other requirements. However, despite all these rules, falls still account for the vast majority of construction injuries and scaffolding is one of the top ten most frequent violations by employers. Therefore, if you are injured due to a scaffolding accident, the following is a guide as to how you should seek compensation, the steps you need to go through, the procedures, your evidentiary burden, and what you can recover.
Is your injury covered?
The first thing you need to determine is if you are covered by workers’ compensation. In general, your injury is covered if (1) you are an employee; and (2) you were injured while performing your work duties. For many people, this test is easily met. However, if you are classified as a 1099 employee or some sort of contractor – it is likely your employer may contest your workers’ compensation claim application. In this case, the dispute centers around whether you are an employee or a contractor. A lawyer can help you investigate and prove that you are an employer.
Next, you need to show that you were injured in performing regular work duties. In general, this means you were “on the clock” and doing your job. For example, if you were injured on the way to your job site – that is not a workers’ compensation injury. However, if you were injured driving between job sites – that is a workers’ compensation-covered injury. Also, you are still protected even if you were injured because you weren’t paying as close attention as you should have to your job or even if you were careless. For example, if you’re working but also making jokes and messing around and are injured because of it; you may still recover for your injuries.
The process to get your claim going
If you are injured, the first you should do is seek immediate medical attention. Go to a doctor, get treated, and make sure that nothing more serious has occurred. Keep in mind that your employer may have a specific doctor you must see; so make sure your supervisor confirms for you where to go. But, if you aren’t in a position to decide where to go, then wherever emergency medical is provided is good. Moreover, go to the doctor even if you think you don’t need medical attention. Your employer’s insurer may require you to see a doctor as a pre-requisite to paying out any claim.
Once you are injured on the job, your employer must give you a claim form within 1-day of receiving notice of your injury. For most construction-related injuries your employer should know immediately that you were injured because they were likely involved in securing your medical attention and care.
The employer will furnish you with a form which asks you to confirm your name, job, what you were doing, the injuries you sustained, and where you sought treatment (among other information). You must file your claim within one (1) year of your injury. If you are late, you are forever barred from seeking compensation through workers’ compensation for your injury (and you may even be barred from filing a personal injury lawsuit). You need to submit your filled-out claims form to your employer within 30-days. This is a hard deadline; if you miss it, it will be harder to secure compensation for your injuries.
Once your employer receives your claim form, it will fill out its section of the form and send it to its insurance company. The insurance company has 14 days to review the claim and either approve or reject it. If your claim is rejected, you have one year to file an application for adjudication of claim with the Workers’ Compensation Appeals Board (“WCAB”). The WCAB is responsible for overseeing workers’ compensation claims and will intervene if it believes that the insurance company unlawfully denied the claim, if the employer did not follow its duties, or if there is any other issue with the claim.
What you can recover
You can recover for any injury that is related to work (i.e., work that was done for your employer on company time). You can recover compensation for the following:
- Medical costs related to treatment for the injury, these costs must be substantiated with receipts;
- Recovery and treatment costs, such as physical therapy;
- Costs to travel to and from the hospital or treatment facilities; and
- Lost wages because you are unable to work.
Basically, you can recover for anything that for which you can get a “receipt” and everything else – you cannot. Classic examples include pain and suffering and loss of companionship. Furthermore, you may continue to recover compensation even if you return work.
A common question that workers have is if they return to work – do the benefits stop? The answer is that it depends. If you return to work and you are unable to assume your same responsibilities, forcing you to accept a pay cut, you can continue to receive workers’ compensation for the difference between what is earning and what you would have earned if there was no injury. However, if you return to work and are able to resume the same at the same pay, then your benefits should stop (unless you have ongoing medical treatment).
What do if your claim is denied
If your employer is honest and submits the claim form, and the insurance company approves your claim – then you have nothing to worry about. However, if anything along the way hinders your ability to seek compensation; then you may want the assistance of a workers’ compensation lawyer. However, before you do that, you should begin gathering and saving evidence. Specifically, you should get names of individuals who witnessed the accident, gather receipts for your medical bills and other costs (i.e., taking a taxi because you can’t drive), evidence as to the date and time of injury, any other persons who were involved in the accident, and how the accident occurred. That may mean collecting your company’s incident report, taking down names, or even recording your own recollections. You may also want to do this with a lawyer to ensure that the evidence you gather is protected by the attorney-client privilege.
Once you get a lawyer, he will file an application with WCAB and file the accompanying documents. You are also required to file a declaration stating that you are ready to proceed on your claim and to give notice to the other parties that you are seeking WCAB’s intervention. These documents get the WCAB process going to review your claim as soon as possible. Once your application is submitted and accepted (i.e., nothing is missing), then WCAB will schedule a mandatory settlement conference to give you and the other parties an opportunity to work out any disputes before it goes to a trial.
If you are unable to settle the case at the conference, then you will need to prepare documents which describe the issue, the witnesses you will call in your case, and what you will argue at trial. Basically, it is a summary of the entire case for the court to review. Thereafter, an administrative law judge will review the evidence, conduct the trial, and issue a ruling.
Help Finding a Workers’ Compensation Lawyer Near Me
Workers’ compensation is an entire subset of legal practice in California. It has its own set of courts, rules, and procedures; therefore, you may want the assistance of counsel to guide you through the process. A workers’ compensation attorney can investigate your claim, substantiate your allegations, and firm up your claim. If you need assistance, don’t hesitate to call the Workers Compensation Attorney Law Firm at 310-956-4277 today! The Workers Compensation Attorney Law Firm serves clients throughout Los Angeles County from downtown to the Valley. They handle all things workers’ compensation; if you have a weird case or an unusual injury, they will know how to help you and prove your claim. Call the Workers Compensation Attorney Law Firm today!