Before the enactment of California’s workers’ compensation laws, an injured worker had no choice but to sue their employer to be compensated for the damages caused by an on-the-job injury. This meant that the injured worker would first have to prove that the employer’s negligence caused the injury to obtain compensation. Often, an otherwise negligent employer would be able to use their superior resources to dodge liability, leaving the injured worker without recourse.
Workers’ compensation was a way to even the playing field. Under workers’ compensation, all an employee had to show to obtain compensation was that the injury in question occurred on the job and in the course and scope of their employment. There was no requirement that the employer’s negligence be proven prior to obtaining relief. The idea was to simplify the process of getting much-needed benefits into an injured employee’s hands.
It should come as a surprise then to learn that today, a large number of California workers’ compensation claims are routinely denied by the employer’s workers’ compensation insurance carrier. This even occurs in cases where the facts clearly show that an injury occurred in the course of employment. So, if your California workers’ compensation claim has been denied by the insurer, what are the next steps that you should take to protect your interests? Let’s take a look.
Let’s start by discussing a bit of prevention/protection. Within one working day of receiving notice that a worker has been injured on the job, an employer is required to provide that worker with a workers’ compensation claim form. This claim form asks for the employee’s personal information, as well as where and when the injury occurred and the nature of the injuries involved. It also must contain minimal information about the workers’ compensation process after the form is completed and returned to the employer.
The workers’ compensation claim form is important because once the completed form is returned to the employer, they or their insurer have 90 days to investigate the claim and either accept or deny it. If the employer, or their insurer, does not accept or deny the claim within 90 days, the claim is presumed to be compensable. The timely use of the claim form can force the employer to be proactive when it comes to making a decision on a claim. It won’t prevent a denial of the claim, but it will keep the claim process moving forward.
In addition, once the claim form has been filed, the employer must authorize treatment of the injuries caused by the workplace accident. This treatment limit will continue until the claim is either accepted or denied, up to a limit of $10,000. However, if the claim is accepted, then the right to treatment for the industrial injuries would continue and the above limit would no longer apply.
Once the employer, or their insurer, has reviewed your workers’ compensation claim, they will either accept the claim or deny it. If the claim is denied, you will receive a letter formally denying the claim. At this point, you will be able to challenge this denial before the California Division of Workers’ Compensation or DWC.
The first step in appealing a denial of a California workers’ compensation claim is the timely filing an Application for Adjudication of Claim form (along with supporting documents) with the DWC district office closest to where you live. The Application for Adjudication of Claim must be filed within one year from the date of your injury. To make sure that your Application for Adjudication of Claim is timely filed within one year from your date of injury, rather than just mailing it to the DWC District office for filing, the better practice is to hand file your Application and supporting documents with the DWC District Office and obtain a conformed copy of the documents filed so that you can prove when you filed them. You must also file a proof of service that shows you mailed a copy of the Adjudication of Claim to your employer and employer’s workers’ compensation insurer.
Once the DWC has received your Application for Adjudication of Claim, they will send you a Notice of Application confirming receipt. They will also assign your claim a case number which will appear in that notice. Once you are ready for your case to proceed to hearing, you can request a hearing by filing a Declaration of Readiness to Proceed with the DWC. As was the case with the Application for Adjudication of Claim, you will have to file a proof of service that shows you mailed a copy of the Declaration of Readiness to Proceed to all parties, including your employer’s workers’ compensation insurer. You should also attach a copy of all of your medical records relating to the evaluation and treatment of your on-the-job injury that you are relying on to establish your case, as well as all correspondence you’ve had with your employer’s insurer.
In addition, when there is a dispute as to whether your claim is covered by workers’ compensation, you may request to be evaluated by a qualified medical evaluator (QME) to assist the parties in addressing the issues involved. If you are represented by an attorney, then your attorney and the claims administrator might be able to reach an agreement on an Agreed Medical Evaluator (AME) to resolve any medical disputes.
During this process, it is important to remember that neither your employer or their insurer has the final authority over whether your workers’ compensation claim remains denied. A judge at the DWC/WCAB is the only person who can decide if your claim will ultimately remain denied or be approved. If your workers compensation claim ultimately found compensable (approved), then you would be entitled workers’ compensation benefits for your industrial injuries.
When your Declaration of Readiness to Proceed has been filed with the Board, you will have an opportunity to request a mandatory settlement conference. If you do, you and your employer insurer’s representative or attorney will meet with the DWC judge in charge in your case. The judge will attempt to get you and the insurer to agree to settle the case. However, if the case does not settle, then it will usually be set for trial and a date for the hearing/trial will be provided to the parties.
The hearing will proceed similar to a court trial in a civil case before a Workers’ Compensation Judge. Your employer’s insurer will usually be represented by an attorney. You have the right to be represented by an attorney, as well. Both sides will present evidence to the Judge hearing the case at the trial, and will have the right to examine and cross-examine any witnesses listed in the Pre-Trial Conference Statement completed by the parties at the time the case was set for trial. A court reporter will make a record of everything that is said. Once both sides have finished, the judge will take the case under advisement/submission and make a decision, usually within 30 to 90 days.
If the DWC judge denies your workers’ compensation claim, you can appeal this decision to the Workers’ Compensation Appeals Board or WCAB. This is done by filing a Petition for Reconsideration with the WCAB within 20 days of the judge’s decision.
If the WCAB upholds the judge’s decision, then you can make a further appeal to the California court system. However, it should be noted that the State Court will not hear new evidence. It will only review the record for errors in the judge’s application of the law to the facts of the case as presented.
Appealing the denial of a workers’ compensation claim is a complex process. To protect your interests, you need to contact a qualified workers’ compensation attorney like Todd Tatro and let him assist you with the burden of this entire process. Mr. Tatro’s law practice focuses entirely on the handling of workers’ compensation claims and with representing injured workers before the WCAB, so you know he’s an authority. In fact, he is a Certified Workers’ Compensation Specialist with the State Bar of California. All he does is workers’ compensation – not civil personal injury cases, not medical malpractice, and not divorces or bankruptcies.
Put your future in the hands of one of the absolute best. Your workers’ compensation claim is far too important to be put into just any attorney’s hands. Contact Mr. Tatro’s office at (559) 431-0123 or through his online contact page.