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 include:
Third Party Cases
Remember that typically the only remedy the injured worker has against the employer is workers' compensation law and the degree of negligence of either the employer or the employee, neither restricts nor enhances the benefits that an injured worker is entitled to. However, if the injury is caused by a third party, that is, someone other than the employer or a fellow employee, then the injured worker may have a dual remedy both in workers' compensation and in the civil courts.
For example, a construction worker on a jobsite while working for a plumbing subcontractor, who is injured because of the negligence of the general contractor on the jobsite, may have a civil claim against the general contractor in addition to the workers' compensation claim against his employer. Other examples include on-the-job automobile accidents, product defects (such as faulty machines), or premises liability.
In appropriate cases, the law offices of Joseph C Waxman may make a referral to an attorneys who specialize in these areas if the injured worker requests.
California workers' compensation law requires that all employers provide workers' compensation insurance for their employees. If a worker is injured while working for an uninsured employer, then the injured worker can sue the employer for civil damages in the civil courts in addition to claiming workers' compensation benefits. The injured worker, in many circumstances, may be able to obtain benefits from a State of California administered fund called the Uninsured Employers Fund.
California law prohibits an employer from discriminating against or retaliating against an injured employee because he or she has made a claim for workers' compensationbenefits. Claims for discrimination against the employer are usually hotly contested by the employer and are not insurable -- meaning that if the injured worker recovers for unlawful discrimination, the employer must pay directly and cannot look to its insurance company for reimbursement. The penalties for unlawful discrimination by an employer against an injured worker because of an industrial injury include lost wages and reinstatement, as well as penalties.
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 paymentsinto 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 beforeSocial Security Administrative Law Judges. In appropriate cases, the law offices of Joseph C Waxman can help you pursue a claim for Social Security disability benefits in serious cases corroborated by the medical evidence.
Serious & Willful Misconduct
While workers' compensation law does not allow the injured worker to sue the employer for negligence (remember that workers' compensation law is the only remedy that the worker has against the employer and the benefits are awarded without regard to fault), if the injury has been caused by the serious and willful misconduct of the employer additional penalties may apply against the employer, usually amounting to a 50% increase in workers' compensation benefits.
A serious and willful misconduct can be found if the employer had advance notice of a dangerous condition, yet did nothing toremedy the situation and the employee was injured as a result of the employer's failure to act on the dangerous condition. Advance notice is usually an important consideration. Serious and willful misconduct may also be found if the employer violates California Safety Orders leading to the work injury, but again, serious and willful misconduct is different and distinct from negligence or even gross negligence on the part of the employer.
If an injured worker dies as the result of an industrial injury and leaves dependents, those dependents can claim death benefits before the Workers' Compensation Appeals Board. The amount of death benefits is determined by the number of dependents and the degree of dependency, as well as whether or not the injured worker has left minor children. The standard for death benefits at the Workers' Compensation Appeals Board is whether or not the work injury has "caused or hastened the injured worker's death." Medical evidence is essential to prove the dependent's claim for death benefits on behalf of the injured worker's family.
Burial expenses of up to $10,000 are available to the surviving members of the family as well as death benefits to surviving dependents ranging from $250,000-$320,000 or ongoing payments to a minor child of an injured worker whose death is job related until that child reaches the age of 18.
If the injured worker is the victim of an intentional tort, such as an assault at the hands of the employer, then the injured worker may sue the employer in the civil courts in addition to claiming workers' compensation benefits.
Federal law (The Americans With Disabilities Act or ADA) and California State law (theFair Employment and Housing Act or FEHA) mandates that an injured worker or disabled person be reasonably accommodated by an employer if the modification or accommodation does not create "undue hardship" on the part ofthe employer.
If the injured worker or disabled person believes that the employer can accommodate or modify his employment so as to allow a return to work but is refusing to do so, the worker may bring a claim in the civil courts under the ADA or FEHA in the appropriate circumstances. The Law Office of Joseph Waxman specializes in workers' compensation law and Social Security disability cases and does not represent injured workers or disabled people in ADA or FEHA cases. But, in a appropriate case, the law offices of Joseph C Waxman will work with acivil lawyer and make a referral to that lawyer for pursuing such a claim if there is an agreement to do so.