Certified Specialist in California Workers' Compensation Law

RELATED CASES and BENEFITS

In addition to California workers' compensation law, an injured or disabled person may be entitled to other legal remedies depending on the circumstances. Some common types of cases and benefits include:

1. State Disability (EDD)
2. Social Security Disability
3. Fair Employment and Housing Act and Americans with Disabilities Act
4. Third Party Cases
5. Serious and Willful Misconduct
6. Unlawful Discrimination Labor Code Section 132(a)

1. State Disability (EDD).

If the insurance company fails to provide temporary disability or other workers’ compensation benefits, the worker can seek payments from the State of California under the State Disability laws by contacting the nearest Employment Development Office (EDD). A worker can qualify for State Disability if he or she has paid into the system and is disabled. While State Disability is typically intended for non-industrial disability claims, State Disability may be available to the worker when the employer or insurance company is denying benefits for an industrial injury. The worker can apply for State Disability (EDD) benefits under those circumstances. However, the State does have the right to file a “lien”. That is, the State has the right to ask for the money back from the worker’s recovery in the workers’ compensation case.

2. Social Security Disability.

If a person is disabled (or is likely to be disabled) for a year or longer, he or she may be entitled to Social Security disability benefits if the worker has made sufficient payments into his or her Social Security account. To obtain Social Security disability benefits the disabled person must show that he or she is disabled from all gainful employment, not just his or her usual and customary employment. An award of Social Security disability for the employee entitles the worker to obtain his or her Social Security benefits earlier than retirement age because of disability. The Social Security disability claims are administered by the Social Security Administration and often require hearings before Social Security Administrative Law Judges. Joseph Waxman can help you pursue a claim for Social Security disability benefits in serious cases corroborated by the medical evidence.

3. Fair Employment and Housing Act and Americans with Disabilities Act.

An injured worker has rights outside of workers’ compensation law. An injured worker may have the right to pursue a physical disability discrimination claim under the Fair Employment and Housing Act (FEHA) or the Americans with Disabilities Act (ADA) if the employer fails to reasonably accommodate a disabled worker.

The Americans with Disabilities Act mandates that if the worker has a disability that qualifies under the Act, the employer has an affirmative duty of “reasonable accommodation,” that is, to modify the work so as to enable the worker to return to employment, unless to do so would cause the employer undue hardship.

The Fair Employment and Housing Act provides protection from harassment or discrimination in employment because of disability (mental and physical) including HIV/AIDS, medical condition (cancer and genetic characteristics), sex, sexual orientation, age (40 and over), ancestry, color, religion, and race.

Although this firm will be representing you only in the workers’ compensation case, in appropriate cases, I may refer you to an attorney with expertise in ADA and FEHA. The lawyer to whom I refer your case will determine whether or not he or she can assist you. Because there are very strict time limits for filing ADA and FEHA claims, I urge you to immediately file a claim with both the State Department of Fair Employment and Housing (FEHA claims) (800 884-1684) and the Federal Equal Employment Opportunity Commission (ADA claims) (415 356-5100 or 510 637-3230). I suggest that you call both offices for appointments. You should also have an experienced lawyer, whether the lawyer to whom I refer you or a lawyer of your choosing.

4. Third Party Cases.

The injured worker may have an additional claim outside of workers’ compensation law if the injury is caused by the negligent acts of a “third party”. A third party is someone who is not your employer or another employee. Examples include a carpenter who is injured on a construction site because of the negligence of a plumbing subcontractor, or a worker who is injured during the course of employment when his/her vehicle is struck by an automobile driven by someone other than the employer, or a worker is injured because of a defective piece of machinery manufactured by someone other than the employer. Exceptions may also include a civil case if the employer does not carry workers’ compensation insurance, or if the employer commits an assault or otherwise intentional act against the employee. If you believe these exceptions to be an issue in your case, please let us know immediately.

If appropriate, I may refer you to an attorney who handles civil liability claims. If the civil liability attorney or personal injury attorney agrees to accept your case upon my referral, I will work with that attorney to make sure that the workers’ compensation case is coordinated, to the best of our ability, with the civil case. You have the right to obtain your own counsel on the third party issue.

5. Serious and Willful Misconduct.

If the employer commits an act or omission that is so wanton or egregious as to almost assuredly cause the injury of the worker, the employer may be held liable for what is called serious and willful misconduct. This requires a showing on the part of the worker of more than employer negligence or even gross negligence. If successful, the award is ordered directly against the employer, and not against the insurance company. It entitles the worker up to a 50% increase in workers’ compensation benefits and up to a $10,000 penalty. Claims of serious and willful misconduct are very difficult to prove and are resisted vigorously by employers. If, in our discussions with you, we learn of facts that would lead to a serious and willful misconduct claim, we will advise you. The statute of limitations pertaining to serious and willful misconduct is one year from the date of the act or omission in question, causing the injury.

6. Unlawful Discrimination Labor Code Section 132(a).

Labor Code Section 132(a) prevents the employer from unlawfully discriminating against or discharging an injured worker solely because he or she has asserted an employee’s workers’ compensation rights. Again, this claim does not go against the insurance company but directly against the employer. It is the only provision in workers’ compensation law that provides for lost wages and reinstatement on the part of the employer. Claims under Labor Code Section 132(a) are extremely hard to prove, as are Serious and Willful Misconduct claims. If we believe that there are facts and circumstances that would lead to a 132(a) violation we will file it on your behalf after discussing it with you. Again, the statute of limitations is one year from the discriminatory act.

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