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Felix P. Montero, Attorney

About | Workers Comp

Our offices handle workers’ compensation cases and represent employees that qualify to obtain this benefits at the Worker’ Compensation Appeal Board in the state of California.

Workers’ compensation is a type of insurance program that insures employees for illnesses and injuries that arise out of the job. The program is mandated by the state, and the state establishes rules for when an employer must acquire such insurance.

After sustaining an injury or illness that is work-related an employee may become eligible for benefits under this insurance coverage by receiving medical care and temporary disability benefits if is unable to work while undergoing medical treatment or recuperating time. Injured employees receive a certain portion of their wages while they are off work for the treatment of such injury or illness, for up to 24 months on the state of California. States also establish their own rate of compensation when an employee loses a member, is permanently disabled or dies as a result of the work-related accident.

Workers’ compensation is a no-fault insurance program, meaning that the injured employee does not have to go the traditional tort route of proving negligence in order to recover. In exchange, the employee generally cannot sue the employer for his or her injuries.

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Covered Employees

Under the Workers’ Compensation Law, most individuals providing services to a for-profit business will be deemed an employee of that business and therefore must be covered by the employer for workers’ compensation insurance. This applies unless those services are specifically excluded as employment under the WCL.

For workers’ compensation insurance purposes, the term employee generally includes day labor, leased employees, borrowed employees, part-time employees, unpaid volunteers (including family members) and most subcontractors (specific exclusions listed under Identifying an Independent Contractor).

Many factors are used to decide whether an individual is an employee under the Workers’ Compensation Law. If a business meets any of the criteria listed below, and the individual hired does not meet the criteria listed under independent contractors, or the services rendered are not specifically exempted as employment under the WCL, then that business must obtain a workers’ compensation insurance policy. 

The factors that are considered to determine whether an individual is an employee within the meaning of the WCL and thus must be provided with workers’ compensation insurance coverage by the employer include:

Right to Control– The degree of direction and control a person or organization exercises over someone they contract with to perform a task is always a central issue in determining an employer-employee relationship. A person or organization controlling the manner in which the work is to be performed indicates that the task is being performed by an employee. If the person doing the labor controls the time and manner in which the work is to be done this may indicate that the task is being done by an independent contractor. If an individual is truly independent, the individual generally works under his/her own operating permit, contract or authority.

Character of Work Is the Same as Employer– Work being done that is consistent with the primary work performed by the hiring business indicates that the labor is being done by an employee. Work done by a person that is different than the primary work of the hiring business may indicate the task is being performed by an independent contractor. (For example, someone installing shingles for a roofer is generally considered the employee of that roofer. Conversely, a plumber hired on a one time basis to fix a broken pipe for a retail store owner is generally considered an independent contractor,)

Method of Payment– Employees tend to be paid wages on an hourly, daily. weekly, or monthly basis. Naturally, employment is indicated if the hiring business withholds taxes and/or provides other employee benefits (Unemployment Insurance, health insurance, pensions, FICA, etc.) Whether the labor is paid using a W2 or 1099 Form for tax purposes does not matter in determining an employer/employee relationship for workers’ compensation purposes. A business paying cash to an individual for services usually indicates that the individual is an employee. Payment made for performance of the task as a whole may indicate the task is being done by an independent contractor.

Furnishing Equipment/Materials– A business providing the equipment and/or materials used by people in performing the work tends to indicate an employer-employee relationship. 

Right to Hire/Fire– A business retaining the authority to hire and fire the individuals performing the work indicates an employee is performing the work. An independent contractor retains a degree of control over the time when the work is to be accomplished and is not subject to be discharged by the hiring entity because of the method he chooses to use in performing the work. Naturally, an independent contractor’s services may be terminated if the services rendered do not meet contractual requirements,)

All factors may be considered and no one factor alone determines whether a person will be considered an employee under the Workman’s Compensation Law.

Covered Injuries

Workers’ compensation coverage is meant to compensate employees who sustain work-related injuries. The state of California further expands this definition to include illnesses that are work related. Other states only allow specific illnesses to trigger coverage.
The work-related injury may not have to be caused by a single incident. For example, repetitive stress injuries or an illness that results because of continued exposure to certain chemicals in the work environment may trigger a workers’ compensation claim.

Employees do not necessarily have to be at work to be covered under such programs. If they are completing a work-related task at their employer’s request and are injured in the process, workers’ compensation may cover these injuries. However, workers driving to and from work who are injured are generally not considered to be work-related accidents.

Additionally, some states allow employers to conduct a drug or alcohol test after an accident and will hold the employer blameless if the employee fails such a test. Workers’ compensation also does not  cover self-inflicted injuries or intentional acts of the employer or other employees.

Benefits

The types of benefits that are available to an injured worker depend on the nature of the injury, state requirements and the benefits included as part of the policy. In addition to the payment of medical expenses and wage replacement, workers’ compensation may also include vocational rehabilitation, compensation for permanent injuries and survivors’ benefits.

States vary as to how medical providers are assigned to the case. Many states allow employers to send the injured employee to the medical provider of their choosing. However, some states allow injured workers to visit their own healthcare providers if they formally make such a request. 

Claims Process

Both employers and employees have a number of obligations under the workers’ compensation system. Employers are required to carry workers’ compensation insurance. This may be achieved by purchasing the insurance from an insurance broker registered in the state or through self-insurance. If the employer fails to carry the necessary coverage, it can be fined and may face an employee lawsuit in court.

Injured employers must report their injuries to the employer. There may be a specific form that they must submit to the employer. If the employee does not report the injury within a certain period of time, the employee may lose his or her right to receive benefits. Employers may also be required to provide employees with fact sheets or pamphlets regarding their rights and responsibilities that employees should review. If the employee is confused about his or her rights or responsibilities, he or she can contact the state agency that is responsible for administering the workers’ compensation program.

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