Are you suffering from a head injury after a work-related accident? Even a minor fall or slip can result in serious and enduring damage to your brain among other life-altering consequences. The qualified attorneys at The Workers Compensation Attorney Group in Orange County understand the complexity of workers' compensation laws. We help our clients receive the compensation they deserve for the pain, suffering, medical bills and acute rehabilitation expenses that are a result of a workplace accident injury.
What is Head Injury?
The head injury occurs when your brain is damaged suddenly, for instance, after a slip and fall in a construction site.
Head injuries could be mild, moderate or severe depending on the circumstances of the injury. Minor injuries are curable with proper medication. Severe injuries, on the other hand, can lead to death, traumatic brain injuries or concussions that have enduring effects on motor skills and other essential functions. This is because brain cells don't replace themselves, leading to permanent damage to brain cells or brain tissues.
Workers are exposed to circumstances that can result in head injuries. As a result, all workers in California suffering from head injuries due to their employer's negligence or other job-related factors are eligible for worker's compensation.
Head Injuries Statistics
According to a report released by the Center for Disease Control and Prevention (CDC), traumatic brain injury is the leading cause of disability and death in the country. Approximately 2.8 million head injuries deaths, hospitalizations, and emergency department visits were reported in 2013 alone. Falls were the main cause of the head injuries accounting to 47% cases. Whereas being hit by and against a hard object came second, accounting to 15% of the reported cases.
Industries like construction, fishing, emergency medical services, agriculture, and forestry pose a greater risk of accidents resulting in head injuries compared to other sectors. The construction site industry is the most hazardous. The common reasons for head injuries include failing to put on a wear hardhat or wearing a poor quality hardhat, falling objects, falls, and slips.
Occupational Safety and Health Administration (OSHA)
The numbers reported by the CDC are significantly high. The Occupational Safety and Health Administration (OSHA) has imposed regulations that specify the right headgear to use while on the job. Your employer has the responsibility to protect you and offer you with all the equipment and information that guarantee safety in your workplace.
Additionally, victims suffering from a traumatic brain injury resulting from breaking OSHA guidelines are entitled to file workers' comp claim. Victims can also request an inspection from OSHA without fear of losing their job.
Violation of OSHA regulations is enough proof to bring a workers' compensation lawsuit. It is therefore important to know these regulations because you will able to detect potential safety violations and come up with ways to avoid these dangerous working conditions. These regulations include:
Your boss should offer a conducive working environment as well as comply with all regulations that control the firm's trade. For instance, in the construction industry, an employer should follow a specific code of practice relating to heavy equipment and scaffold.
All employees should offer daily inspections on areas and equipment that are susceptible to fatal conditions
Employers should provide all workers with safety info. The employers should have OSHA labels, posters among safety signs.
Employers should offer training in the workers' preferred language. This will help the employees handle their normal tasks and be informed on how to handle hazardous situations.
Additionally, employees must ensure their workers put on hardhats while working. There are three (3) types of hardhats recommended by OSHA. They include:
Conductive helmet (Class C) – a lightweight helmet that offers safety against flying things
Electrical helmet (Class E) – it protects you against flying substances and 20,000 volts
General helmet (Class G) – this helmet offers protection against 2,200 volts as well as heavyweight impacts
Types of Traumatic Brain Injury
There are two main categories of head injury:
Penetrating injuries occur when something penetrates into your skull and damages your brain. More often than not, the penetrating object remains lodged in the brain and cause further bleeding, damage and can impact more than one area of your brain. Just like any injury, these brain injuries are fatal and should be treated immediately.
Common causes of this form of head injury are falls, car accidents, and gunshots.
Closed Head Injuries
Typically this type of head injury occurs as a result of a strong or sudden blow to your head that doesn't pierce your skin. In layman's language when your brain makes forceful contact with your skull. These injuries can be caused by vehicle crashes, falls or sports injuries.
Closed head injuries cause two types of brain damage:
Primary brain damage
Primary brain damage manifests immediately after the accident. This could be:
Concussion- This is a minor head injury that has a temporary impact on how your brain functions
Skull fracture- This is an injury which breaks your skull
Bruises/contusions- frequently happen in the areas of impact
Blood clots/hematomas- a mass of clotted blood that forms between your brain and the skull or inside your brain
Damage to the nervous system- Nerve injury originates from shearing or cutting force that destroys nerve cells in your brain connecting nerve fibers
Lacerations- This is the tearing of blood vessels in the temporal and frontal lobes or inside your brain. The tearing occurs when the accident makes the brain rotate across the skull ridges.
Secondary Brain Injuries
Sometimes brain injuries can be "silent injuries" when the injuries don't appear immediately after the accident. It is, therefore, crucial to be watchful for any subtle indications of brain injuries anytime your head is hit. This is because it could result in chronic health conditions. They include anemia, intracranial infection, edema (brain swelling), epilepsy, nausea, numbness, severe headache, mood swings, experiencing difficulties with speech, and hypertension.
Workers' Compensation in California
In any event, you sustain head injuries while working you are entitled to compensation benefits that include payment for lost wages and medical bills. Provided you qualify, you will be compensated irrespective of who is responsible for the injury. In exchange, you can't file a claim against your boss for damages.
There are four eligibility requirements for workers' compensation benefits:
Your employer must have workers' compensation insurance
The law in California requires all employers with at least one worker to be covered by workers' compensation insurance.
You must be an employee
Not everyone is an employee as far as workers' compensation eligibility is concerned. For instance volunteers and independent contractors such as consultants, freelancers are not entitled to these benefits.
If you work as a domestic or agricultural worker, you may think you are not eligible for workers' comp insurance. In any case, your boss isn't running a business. But under the law, you are entitled to these benefits if injured while working.
The head injury must be work-related
If you are doing something for the benefit of your company and sustain head injuries; as a result, it is job-related. For instance, your injuries are work-related if you were hurt your head while loading boxes as part of your warehouse responsibility.
Reporting and Filing Deadlines
Even if you meet all the three other qualifications, you may lose your right to receive your compensations if you don't meet reporting and filing deadlines.
How Workers' Compensation Benefits are Determined
After you notify your boss of your injury and file a workers' compensation lawsuit, your company's insurance provider should start paying your medical bills benefits. You have a right to payment for all medical procedures and treatment that is reasonably needed to relieve or cure the injury without any deductible to you. This includes hospital bills, doctor's bills, acupuncture treatment, medical supplies, and sessions with an occupational or physical therapist.
In case your boss has a specified doctor for workers' comp treatment, you should go to that doctor. However, there are exemptions to this law that include when you already have a primary care medical practitioner or when you require emergency treatment. Before you get any form of treatment suggested by your physician, you should get approval to check if it is medically necessary.
Temporary disability benefits (TD)
If the doctor says you are not fit to perform your job responsibility for some time because of the job-related head injury, you have a right to receive temporary disability benefits. Temporary disability benefits are designed to compensate some of the lost wages.
During that time you will receive two-thirds of your average weekly wages. Average weekly wages can be defined as your total weekly gross income when the accident occurred including wages from several jobs and overtime.
Permanent Disability Benefits
You also have a right to permanent disability benefits in case your doctor says your medical condition is stationary and permanent. That means the medical condition is not expected to improve in the near future, with or without more medication. You will then be issued with a permanent disability rate that puts your age, occupation and your impairments into consideration.
Supplemental Job Displacement Benefit
A victim also qualifies for supplemental job displacement benefit if their boss fails to offer them a regular, alternative or modified job within sixty days after been issued with a medical report that the head injury led to partial permanent disability. This benefit comes with a voucher worth $6,000 which one can pay for training to obtain certification and skills required to enter another profession.
You are eligible to death benefits if you're a surviving dependent of a worker who succumbed to a job-related head injury. The amounts you receive depend on the date of the injury and the total number of eligible survivors.
How and When to File a Workers' Compensation Lawsuit in Orange County
The clock starts ticking on the date when one's head is injured. The date is simple to tell if one was injured while working. But it can be complex if one is suffering from secondary brain damages. In such cases, filing and reporting the case starts when the following happens:
You visited a physician for the head injury and
You realized your medical condition was caused by the work-related accident after the doctor told you that.
Report the injury
You should seek immediate medical attention after the accident. Unless it is an emergency, one can visit any hospital. Otherwise, your employer has their medical provider where you should go. Make sure you notify the treating doctor that your head injury is work-related.
Moreover, you should issue your boss with written notice of your injury within thirty days after you are hurt.
Filing Form DWC-1
Your company should issue you with a Form DWC-1 (workers' comp claim form) together with details about your responsibilities and rights, eligibility for benefits, and details on worker's compensation process within one working day after notifying them of your injury. You can also download the DWC-1 form from the forms section of California's Workers' Compensation official website.
File out the employee's section on the DWC-1 form. Make sure you follow the instructions. Don't forget to list every body part that was hurt. After you are done, deliver the workers' comp claim form to your boss. It could be either through certified mail or in person.
Your boss should fill their portion and submit the form to their insurer for payment authorization. Ensure you collect a copy of the completed form from your boss.
The Insurance Provider Response
While your workers' comp claim is being looked at, the insurance firm should pay a maximum of $10,000 for your medical bills even if it denies the claim in the end. Also under Cal. Labor Code 5402 (2018), if the insurer does not deny your claim within ninety days of filing, the law assumes you are entitled to the benefits.
If the doctor says you can't perform your daily responsibilities for a while, the insurer should pay you temporary disability benefits within fourteen days after being notified of your head injury and inability to perform normal responsibilities.
In any event, the insurance company does not start making the payment within 14 days, deny the claim or ask you to provide more details; they will pay a late penalty. The late penalty is an additional ten percent on your TD benefits.
What to Do After your Workers' Compensation Claim has been Denied
All employees can appeal if their workers' compensation claim has not been accepted or if they disagree with the insurer about their case. The appeal process is very complicated and time-consuming hence paramount to hire an experienced attorney. The appeal process entails:
Application for Adjudication of Claim
You may think that everything is okay when the insurance company starts paying both your temporary disability and medical benefits. That might be the case as long as your head injuries are minor and you will recover fast and completely.
But medical conditions are bound to change. Even if you file a case with your boss, you will not be in a position to settle any disagreements unless you open a claim with the California Workers' Compensation Appeals Board by bringing an Application for Adjudication of Claim.
You should bring the Application for Adjudication of Claim within a year after:
The date your head hurt,
The last day you got medical benefits from your employer, or
The time when you stopped receiving temporary disability benefits
It is wise to bring this claim even after the insurer has accepted your claim. This way you will not miss the deadline in case you disagree with the insurer later on as a result of a new or further injury. You have five (5) years to ask your claim be reopened.
Those dependents of a victim who succumbed to work-related head injuries pursuing death benefits have a year from the date of the decedent's death to bring their claim.
Declaration of Readiness to Proceed
If you feel you are ready to have a hearing with a judge, you should bring a Declaration of Readiness to Proceed together with letters from the insurer about the disputes and all essential medical records.
Other reasons you might need to file the form in question include penalties for delayed payments, you differ with the physician's recommendation (for instance you think you require a surgical procedure, but the doctor specified by your employer's insurance company thinks otherwise), or you differ with the permanent disability rating.
Before getting to the court hearing, you must participate in a compulsory settlement agreement where both you and the insurer will talk over the dispute in front of a judge and make an effort of resolving the issue. If you fail to resolve the dispute the case proceeds to a pretrial conference and a hearing.
Workers' Compensation Hearing
A workers' compensation hearing is the same as a trial with no jury. All parties present evidence, give witnesses an opportunity to testify and present their arguments about your case. It is worth noting that you can't present new proof that was not shared in the settlement conference.
Petition for Reconsideration
After the workers' comp hearing, the judge will send you their written decision through the mail. If you are not satisfied with the decision, you can bring a petition for reconsideration with WCAB within twenty days. The WCAB will then grant or deny the reconsideration depending on the evidence given. If the reconsideration is accepted, the panel will grant a verdict that either affirms, alters or reverses the judge's verdict.
In case the WCAB denies the claim, you can file your petition with the California Court of Appeal in your county. And if the court of appeal denies your reconsideration, you can file a petition with the California Supreme Court.
Frequently Asked Questions on Workers Compensation Head Injuries
Is it possible for you to have both a personal injury lawsuit and a workers' comp lawsuit at the same time?
It's not only possible but also happens more often than you might think. This occurs in scenarios when an employee sustains head injuries while working but the head injury is as a result of the negligence of a person not directly associated with their employer. These scenarios include defect products such as industrial equipment not manufactured by your boss or equipment or truck accident caused by a third party.
Are head injury victims entitled to other benefits for their injuries besides workers' comp?
Depending on the type of head injury sustained, you can obtain Social Security Disability Insurance (SSDI) benefits alongside workers' compensation benefits.
It is also important to note that you cannot receive California State Disability Insurance when your injury is work-related. But you can receive interim benefits from CASDI when your employer's insurance provider delays or denies paying your benefits. In any event, you collect the workers' compensation benefits later, CASDI has a right to reimbursement for what it awarded you.
What happens when an employee does not have workers' compensation insurance?
Every employer in California should have workers' compensation insurance either through an accredited self-insurance program or an insurance firm. If your employer has violated the law by not having the cover, you can sue them in court. In that case, you will collect your damages by filing a personal injury lawsuit.
Moreover, you can still bring a workers' compensation lawsuit against an uninsured boss. Under California Labor Code 3715 and 3716 (2018), you can get money from the Uninsured Employers Benefits Trust Funds if you are awarded benefits in the case, but your boss did not pay.
Find Legal Assistance Near Me
If you sustained a head injury in a job-related accident, you could secure disability and medical benefits through California's workers' comp. At The Workers Compensation Attorney, we have many years of experience representing job-related injury victims and their loved ones throughout Orange County. We understand workers' comp is a no-fault system and companies together with their insurer often make it hard for victims to receive benefits which they are entitled to. Call our Orange County Workers Compensation Lawyer today at 562-485-9694 and schedule an initial consultation to know more about your rights.