Answers to Frequently Asked Questions About Workers' Comp & Personal Injury Litigation
If you were hurt in a personal injury or workplace accident, you probably have a number of questions about your rights and legal options. Fortunately, Attorney Mark Blane has answers. Browse answers to FAQs here.
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DISCRIMINATION: What if my employer discriminates against me for filing a San Diego work comp claim? What do I need to know and what can I do?
Your employer obviously is not suppose to discriminate against you for filing a bonafide work injury claim. If he or she does, you are protected under California law.
First, find yourself a good San Diego work comp attorney to get a consult. Second, your lawyer can file what is a called a "Section 132(a) action." Which is basically a motion governed by a California workers' compensation law that prohibits discrimination against you because you filed a workers' compensation claim, and against co-workers who might testify in your case.
DWC1 WORK COMP CLAIM FORM: What is the DWC1 Claim Form and why is it important in my San Diego workers' compensation claim?This is the claim form you need to fill out, sign and date, when you report your work injury or work related illness to your employer or supervisor. Remember, California law mandates your employer give you this form (the DWC1) within 24 hours of reporting a work related injury or illness.
The DWC1 form comes from the Division of Workers' Compensation, Department of Industrial Relations, with the state of California. It is a very important form as it starts your work comp injury case with your local work comp appeals board.
COMPROMISE AND RELEASE (CR): What is a Compromise and Release in regards to my San Diego workers' compensation case?
This is a type of settlement in which you (the injured worker) receive a lump sum payment and become responsible for paying for your future medical care. A settlement like this must be approved by a workers' compensation judge, and it is a common type of settlement for a work comp case. The other kind of settlement is known as a Stipulations with Request for Award (Stips).
STIP FOR AWARD: My uncle Bob told me his San Diego work comp attorney mentioned something about wanting to "stip his work comp case," what is he talking about?
This is simply a type of work comp settlement in which the parties agree on the terms of an award (settlement), and it may include future medical treatment. Payment takes place over time, and this agreement is put into writing, and this written document is provided to the judge for final review. Another type of work comp settlement is called a Compromise and Release (C&R).
WORK COMP BENEFITS: Okay, if I have a valid San Diego work comp injury case, what benefits are available?
California (San Diego) workers' compensation insurance provides six basic benefits (you should review these benefits with a qualified San Diego work comp lawyer):
- 1. Medical care: Paid for by your employer to help you recover from an injury or illness caused by a work related injury or illness;
- 2. Temporary disability benefits: Payments if you lose wages because your injury prevents you from doing your usual job while recovering from your work injury;
- 3. Permanent disability benefits: Payments if you don't recover completely from your injury;
- 4. Supplemental job displacement benefits (if your date of injury is in 2004 or later): Vouchers to help pay for retraining or skill enhancement if you don't recover completely and don't return to work for your employer;
- 5. Vocational rehabilitation (if your date of injury is before 2004): Job placement counseling and possibly retraining if you are unable to return to your old job and your employer doesn't offer other work;
- 6. Death benefits: Payments to your spouse, children or other dependents if you die from a job injury or illness.
LEGAL ANSWERS: Can you syndicate your legal answers to various legal questions from real people you have answered from avvo.com?
Yes. Here it is:
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FILING A WORK COMP CLAIM: Okay, how do I go about filing a San Diego workers' compensation claim if I believe I have been injured on the job?
As soon as you, the worker, knows or even suspects that you have a work or job related injury or medical illness, you should immediately report it to your employer. Under the California labor code, within one day (24 hours) after the injury is reported by you (the injured worker), the employer must give you a workers compensation claim form.
This is only the first step in "filing a work comp claim" in San Diego, California. Waiting to report an injury or illness can cause a delay or denial of workers' compensation benefits, so you should not wait. The sooner you report it, the better. Evidence is better preserved, and any witness testimony is sill fresh.
MEDICAL MALPRACTICE: How would you define "medical malpractice?" What does that mean in California?
The phrase "medical malpractice" is a broad legal term generally used to describe any medical care, or medical treatment, lack of medical treatment, or other departure from the reasonable accepted standards of medical care in the community, or safety on the part of a health care provider that causes harm to a patient for a number of different things. In fact, examples of medical malpractice are too numerous to list here for this FAQ answer. This definition is true in all of the states, not just California.
You should know that medical malpractice can include the following items: a misdiagnosis, improper treatment, failure to treat, delay in treatment, failure to perform appropriate follow-up, prescription errors, or the like. In many instances, medical malpractice is not obvious to a lay-person and requires the review and analysis by medical experts, and special time frames apply in California in order to file a lawsuit against a negligent doctor, or medical provider or facility. Even more reason to contact a California medical malpractice lawyer in your area to help you.
MEDICAL MALPRACTICE LEGAL CLAIM: If I had a lawsuit against a California medical doctor, or any heath care provider for that matter, what would I have to prove in order to win my medical malpractice lawsuit against that doctor or medical provider?
Please keep in mind, there are many different types of medical malpractice claims out there; but, generally speaking, a claimant (person who files a medical malpractice lawsuit) must usually show the following items to win:
- 1. The health care provider owed a duty to the patient (duty of reasonable medical care);
- 2. The health care provider breached that duty (fell below the reasonable standard of medical care);
- 3. The patient suffered an injury, (actual damages as a result of the breach), and
- 4. The patient's injury was a proximate cause (legal cause) of the health care provider's breach to the patient - this just means "but for" the breach happening, the claimant would have otherwise been without injury.
A medical physician owes a duty of reasonable medical care (medical care that any patient would readily find in the community) to a patient once a "doctor-patient" relationship has been formed (this forms when the patient and doctor enter into an examination, or when the physician agrees to care for the patient, as examples). Nonetheless, even if it is established that a duty existed and the health care provider breached that duty (eg. failed to meet the requisite standard of care), a claimant may not recover unless the claimant suffered injuries that were a direct result of the breach. This is a three part punch. If the breach (duty owed) resulted in no harm to the patient, a claimant generally has no right to a legal recovery to anything. Also, keep in mind, special time frames to file a lawsuit apply in any medical malpractice legal action - you should consult an experienced California medical malpractice lawyer!!
HEAD INJURY: What is a California head injury? Also known as a concussion type injury, closed or open head wound, brain trauma or diffuse axonal tissue injury?
Any person who has suffered an injury to the head area or brain due to an accident, gunshot wound, slip and fall, trip and fall, auto, motorcycle or truck accident or an assault, or even a sporting injury, is said to have a head or brain injury or sometimes (depending on the severity) a traumatic brain injury. Keep in mind, the brain injury might have resulted from a lack of oxygen to the brain (a result of a drowning, or choking) or a lack of blood supply to the brain (a result of a heart attack), or in the case of a severe auto, motorcycle, bus or truck accident, the brain injury might have been caused by several factors involved with the bio-mechanics of that collision. The above definition is obviously true regardless if the injury happened in California or not.
BRAIN INJURY RECOVERY TIME: This may seem like a silly question, but people who have brain or head injuries, do they recover from the injuries?
No, it is not a silly question, and the answer is quite positive! Yes, people with brain injuries or head type injuries can and do fully recover from their injuries. The time it can sometimes take for such a medical recovery is calculated in either: weeks, months, and even years (rare cases). Many times, there is a fast recovery time soon after the injury, but as time moves forward, medical recovery time slows down. The brain is a very sensitive organ. Some people who have suffered or sustained severe head type injuries show no noticeable problems, while others need constant care for the remainder of their lives! I talk about this situation in the following quick video:
Sometimes a person with a brain injury can remain unconscious and it then becomes impossible to predict how long they will remain this way or when they will regain full consciousness. These of course are in severe accident cases. It becomes very difficult for the doctors to know because the brain is so sensitive, and other factors can influence what happens next. The milder the brain or head injury then, generally speaking, the shorter the time frame for full recovery of consciousness. Likewise, the more severe the head injury, the longer the time frame is for a person to regain full consciousness! It is all about the severity of the head injury.
SWELLING OF THE BRAIN: My brother got into a bad San Diego car accident, and the doctors said he sustained severe brain injuries, and they noticed some swelling. Although he is doing better now, I was wondering what is brain swelling?Brain swelling is the common name of what is medically called a "cerebral edema" It is usually the result of many different kind of injuries to the brain. Many times, brain swelling is unavoidable and if it is not controlled can lead to death because of the excessive pressure in the head (intracranial pressure). The swelling is caused by damaged tissue to the brain trying to take in more blood (oxygen rich nutrients) to repair the damaged axonal tissue. The problem becomes the pressure because the skull is an enclosed environment.
BRAIN INJURY: What are some common causes of brain injuries that you see in your San Diego California brain injury law practice?
I have been practicing in injury law in California since 1999. I have seen many kinds of head injuries. The majority of brain injuries occur when something (an object) strikes a person in the head causing head injury. Falling merchandise, hands, fists, bullets and falling debris at the workplace all have the potential to cause brain injury.
A person can also strike his or her head on a steering wheel from a car accident, a motorcycle accident or a silp and fall injury can also cause some to strike their head causing injuries. For an unborn child, oxygen deprivation during birth can also cause brain injury.
CONSTRUCTION SITE WRONGFUL DEATH: What are some examples of wrongful deaths happening in or around a California construction site?
If you are a California construction worker, then you know more than anyone else that working high above the ground and handling potentially dangerous equipment throughout the day, you are at a higher risk of injury than those employed in most other professions. It shouldn’t come as any surprise, then, that fatal accidents occur more frequently at construction sites than in most other workplaces through the United States, and of course, including California.
Fatalities or wrongful death accidents at construction sites can occur in the following situations:
1. Construction workers falling from scaffolding or ladders;
2. Scaffolding collapse;
3. Welding accidents or burns;
5. Heavy equipment falls; causing fatal head wounds or the like;
6. Walls, roof or other parts of a structure collapse;
7. Defective equipment;
SCAFFOLDING ACCIDENT: What are some statistics regarding scaffolding accidents occurring on job or construction sites?
According to recent statistics from the Occupational Safety and Health Administration (OSHA) data, scaffolding accidents at job sites or construction sites account for approximately 80 deaths annually and this comes to over 10,000 injuries a year! All told, 900 construction site fatalities occur every year, according to OSHA, so this means that scaffolding accidents alone account for nearly 10% of all construction deaths! Construction workers need to be careful on scaffolding as the statistics show the truth as these systems of support can be extremely dangerous!
Here are some follow up questions you can find answers to on my website:
How do these on-the-job or construction site accidents happen? Who can be to blamed? What can you do if you got hurt on a construction site or if you lost a loved one to a fall or some other type of fatal injury producing job accident?
FALLING OBJECTS: What do I need to know about falling objects in connection with a California construction site injury or accident?
If your injured by a falling object at work (at a job or construction site, or any where you are working), then you will have claim for California workers' compensation, and possibly a third party if the falling object was due to the negligence of a third party not connected with your employer.
The truth is construction workers generally don’t work in a vacuum, and they use painting machinery, cranes, and cleaning equipment while up on scaffolds. Things can fall and cause severe head wounds. Also, construction work may be going on simultaneously on different parts of the site. If a person above you drops a bucket of tools or accidentally spills paint, you could lose your balance and fall off the scaffold; thereby causing injury.
A good California construction lawyer will review the facts of your "object falling on you injury" to see if there is also a third party to pursue for legal damages in addition to any California work comp remedies.
IMPROPER SUPERVISION: My husband got injured at a Chula Vista Construction site and we believe it was due to improper training or supervision; we are not sure which is the greater to blame. Does my husband have a legal claim for this type of accident?
Yes, he possibly can.
Construction is inherently dangerous work, and it is well known that in San Diego, California or Chula Vista for that matter, construction sites can get very busy. However,those dangers can be managed with good safety protocols that are employed at the job site. If your supervisor failed to provide you with good instructions about how to operate machinery, or for inadequate supervision for a job site procedure for instance, he or his company can be liable for injuries and damages under California law.
CALIFORNIA WRONGFUL DEATH ACTION: Where does a California wrongful death lawyer file a lawsuit for a wrongful death legal action? Which California court house does he or she file the lawsuit?A California wrongful death lawyer would file the wrongful death lawsuit in the California county where the defendant (at -fault party) resides OR in the county where the injury causing death occurred. The lawsuit would be brought in the nearest courthouse to the zip code where the wrongful death happened in California state court if the legal action is in state court. Check out my video on zip codes and why they are relevant injury actions in California. For example, if a wrongful death occurred in San Diego, near the downtown area, then the Superior Court of California in the County of San Diego located at 330 W. Broadway would be the appropriate state court to file the wrongful death legal action.
PARTIES TO A CALIFORNIA WRONGFUL DEATH LAWSUIT: Under California law, who can bring a legal action for wrongful death?
Under California law, the legal right to file a wrongful death lawsuit is determined by what is called a "legal hierachy." The spouse of the deceased has the first right of refusal to sue, followed by children, grandchildren, parents, and siblings; this is the order usually followed.
COMPENSATION: What types of legal compensation can I expect from my California wrongful death lawsuit?
California law is fairly open on legal damages on such lawsuits. Depending on the nature of the relation between you and your loved one, you may be eligible to collect compensation for lost past and future wages, past medical expenses, funeral expenses, pain and suffering (both yours and the victim’s, but there are narrow exceptions in this category), anguish, loss of consortium, loss of support, and other losses and expenses.
An experienced California wrongful death attorney will be able to identify those losses and expenses that may extend into the future and, in their pursuit, present a compelling case against the responsible party. This includes the narrow exceptions for pain and suffering as mentioned briefly above.