If you are injured at work you may be entitled to compensation as a result of those injuries. You are also entitled to any medical treatment reasonably necessary to cure the effects of a work injury at the employer’s expense. Employers are required by California law to maintain Workers Compensation Insurance to pay for injuries suffered by employers. Workers Compensation Claims filed with the Workers Compensation Appeals Board is generally the exclusive remedy for workers. There are certain exceptions discussed later.
Types of Injuries
In California there are 2 types of injuries for which a Workers Compensation Claim may be pursued. These include Specific Injuries and Cumulative Trauma Injuries.
Specific Injury: This is the injury most people regard as being a “true” injury. These can include slip and falls, lacerations, being hit, or other events commonly referred to as an accident.
Cumulative Trauma Injury: This is the second type of injury for which one may pursue a Workers Compensation Claim. This type of injury typically occurs as a result of repetitive work such as constant bending, lifting, pulling, pushing, grasping or other work activities resulting in chronic pain or stress. This type of injury may also include a repetitive exposure to a harmful working environment such as heat, cold, chemicals, or a stressful work environment. Common examples include situations of harassment or abuse by a co-worker or supervisor. This can also include sexual harassment.
California law requires that an employer advise an employee of their workplace rights including the right to medical treatment at the employer’s expense in the event of an injury. Additionally an employee is required to immediately notify their employer in the event of an injury. This should be done in writing and include the use of a Claim Form. (Form DWC-1)
Unfortunately many employees choose simply to notify their supervisor of their injuries orally and without writing. In many instances these reports are ignored by the supervisor. Additionally many times an employee’s request for medical treatment is ignored.
In addition to not obtaining any needed medical treatment the result is the employer is made aware of a potential injury claim. This frequently results in that employee being terminated or being pressured to quit. (Employers do not like to have to report workers compensation claims to their insurance companies as this can cause an increase in their insurance expense through raised premiums.)
Many employees are reluctant to report an injury for fear of being fired, “taken off the schedule”, or otherwise suffering an economic consequence. In many instances workers have personal knowledge or second hand knowledge of other employees being punished for reporting their injuries.
The end result is that many workers bring a Workers Compensation Claim after they have been fired or otherwise terminated. This is known as a “post termination claim”.
Post Termination Claims
Generally claims filed after an employee is terminated or given notice of termination are not allowed pursuant to California Labor Code Section 3600(a). Claims filed after termination are regarded as being retaliatory in nature, not brought in good faith, or are otherwise without merit.
The Reporting Dilemma
Workers are often placed in a situation where they face retaliation by an employer for reporting an injury. They are therefore reluctant to report the injury out of economic necessity. While reporting the injury to the employer is the best way to secure an employer’s Workers Compensation Rights, there are certain actions an employee may take to preserve their rights. These include:
1. Going to your own physician or clinic. This allows the injured worker to obtain documentation to support their injury claim as well as to obtain medical relief. Many employers provide their employees with health insurance. This is a good way to obtain documentation to help avoid facing a Post Termination Claim Defense by the employer. If you choose to go to your own doctor or clinic it is important that your injuries or complaints are reported in writing by the doctor or clinic. The doctor’s records should clearly reflect that you are claiming an injury as a result of work.
2. Loss of Time from work. If your injuries are such that you need to take some time off you should notify the employer that the time is lost due to an injury. Again, this poses a risk in that it tips off your employer that a workers compensation claim may be forthcoming.
Termination or Firing as a Result of Reporting a Workplace Injury
California Labor Code Section 132(a) prohibits an employer form firing or otherwise discriminating against an employee as a result of filing a claim for Workers Compensation Benefits. If an employer terminates an employee after filing a Workers Compensation Claim then that employee may be entitled to additional compensation as a result of that firing.