Am I Suing My Employer?

By Mark Edelstein, Esq.

Many of our new Workers’ Compensation clients ask us if they are “suing” their employer by hiring an attorney in a Workers’ Compensation case. My answer: There are no “lawsuits” in Workers’ Compensation. 

Here’s how it works. An employer pays premiums to an insurance company (or in some cases an employer is approved to be self-insured, setting aside a sum of money) to insure its workers in case of a work injury. This is similar to you paying an insurance premium to a company for insurance on your automobile. When a worker is injured and reports the work injury, a Workers’ Compensation claim is filed with the insurance company (or administrator).   

Workers’ Compensation is a no-fault system; benefits are paid for injuries on the job regardless of fault. There is no lawsuit or civil action against your employer. Any dispute concerning what benefits are owed is heard by an administrative law Judge at one of two dozen Workers’ Compensation Appeals Boards (i.e., court) throughout the state of California.

Injured workers are entitled to have an attorney assist them with their claim, guiding them through the system and advocating on their behalf. It is unlawful for an employer to discriminate against workers for claiming an injury or hiring an attorney to assist them.

Given the complexity of the present law, we have found that, in many cases, having a skilled Workers’ Compensation attorney is more important now than ever to ensure that proper benefits are received.  The law is continuing to develop in response to the significant changes in the 2004 Workers’ Compensation “reform,” which was intended to limit medical treatment and reduce benefits.

Which doctor you can treat with depends on an understanding of the complexities of the rules that can enable an employer to limit your choice of physician. Two recent court decisions allow questioning of doctors to obtain a more accurate interpretation of determining permanent disability benefits. The decision in another recent case stipulates that in some circumstances, economic loss can be taken into account to affect the overall permanent disability rating. 

These and other important issues can increase greatly the benefits received after a workplace injury. In most cases, the insurance company is not going to volunteer changes in the law that might result in increased benefits to the injured worker.

Attorney’s fees are written in the law, and usually are approximately 15 percent of the permanent disability benefits received.  No up-front money is allowed, and if no benefits are recovered, there is no fee.

If you have a question about a work injury or any other legal matter, and would like to speak with an attorney, call 213-739-7000 or click here.

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