Workers' Comp Laws in California

Deadlines first: what you must do, and when

Deadlines are the part of a California workers' compensation claim that most often goes wrong, so here they are up front:

• Tell your employer, in writing, within 30 days of the injury. California Labor Code section 5400 says a claim generally cannot be maintained unless the employer is served with written notice within 30 days. If you are already past 30 days, do not assume your claim is dead. Labor Code section 5402(a) says the employer's knowledge of the injury, obtained from any source - including a managing agent, superintendent, foreman, or other person in authority - is equivalent to service of that notice. And Labor Code section 5403 says a failure to give notice, or any defect or inaccuracy in one, is not a bar to recovery if it is found as a fact that the employer was not in fact misled or prejudiced by the failure. Report in writing as soon as you can anyway - and if you are late, report anyway and ask DWC's Information and Assistance Unit about these exceptions.
• File a formal claim within one year. Under Labor Code section 5405, the period to start proceedings is one year from the date of injury, from the end of any period covered by disability payments, or from the last date medical treatment was provided for the injury.
• If an old injury gets worse, you may have five years. Under Labor Code section 5410, nothing bars an injured worker from starting proceedings within five years after the date of injury on the ground that the original injury has caused new and further disability - and the appeals board keeps continuing jurisdiction during that period.
• If a judge rules against you, petition for reconsideration within 20 days of the decision being served on you (25 days when it is served by mail to a California address).

Calendar these the day you are hurt. Missing them is the single most common way a valid claim falls apart - but a missed notice deadline is not the same as a lost claim, so never walk away without asking.

What to do first if you're hurt on the job in California

1. Get medical attention. If it's an emergency, get emergency care first and tell the provider it's a work injury.
2. Report the injury to your employer - in writing - right away. For an occupational disease or a gradual, cumulative injury, Labor Code section 5412 sets the date of injury as the date you first suffered disability from it and either knew, or with reasonable diligence should have known, that the disability was caused by your employment. Both parts have to be present - simply suspecting years ago that a condition was job-related does not start the clock if you were not yet disabled. A written note, email, or completed claim form all serve as written notice - keep a copy.
3. Ask your employer for a workers' compensation claim form (DWC-1) and complete the employee portion. Under Labor Code section 5401(a), within one working day of receiving notice or knowledge of an injury that results in lost time beyond your work shift or in medical treatment beyond first aid, your employer must give or mail you the claim form and a notice of potential eligibility for benefits.
4. Keep copies of everything - the claim form, medical records, and any correspondence with your employer or its claims administrator.

Do not wait to see whether the injury "gets better on its own" before reporting it. Reporting late is one of the most common reasons claims run into trouble.

California's workers' compensation agency

The Division of Workers' Compensation (DWC), part of the California Department of Industrial Relations, administers the state's workers' compensation system. DWC provides free help to injured workers, adjudicates disputes through workers' compensation administrative law judges, and publishes the claim forms and injured-worker guides referenced here. Its official site is dir.ca.gov/dwc, and DWC publishes a free guidebook for injured workers.

Who is covered

DWC states that all California employers must provide workers' compensation benefits under Labor Code section 3700, and that a business with one or more employees must satisfy that requirement. There is no small-employer headcount exemption - an employer cannot simply decide not to carry coverage for its employees.

There is, however, a narrow exclusion list. Labor Code section 3352 excludes certain people from the definition of "employee," and several of those exclusions are elective: a qualifying corporate officer or member of the board of directors who owns enough of the company's stock, a general partner of a partnership, a managing member of a limited liability company, an owner of a professional corporation, and an officer or director of a qualifying cooperative corporation may each execute a written waiver of their rights under the workers' compensation law (subject to the statute's conditions, including health coverage requirements and acceptance by the insurer). Section 3352 also excludes, among others, a person employed by their parent, spouse, or child, and certain volunteers and people working in return for aid or sustenance only. If you think one of these categories might describe you, ask DWC rather than assuming.

Employers meet the coverage obligation by buying a policy from an insurer authorized to write workers' compensation in California, by buying from the State Compensation Insurance Fund (a state-created nonprofit insurer that both competes with private carriers and serves as the insurer of last resort), or by obtaining a certificate of consent to self-insure. Because employers may choose among private carriers, California is not a monopolistic state-fund state.

California's definition of "employee" reaches every person in the service of an employer, whether lawfully or unlawfully employed. If you're unsure whether you're covered - for example, if you were labeled an "independent contractor" - ask DWC's Information and Assistance Unit. Misclassification is a common and disputable issue.

The deadline to file your claim

Under Labor Code section 5405, you generally have one year to begin proceedings to collect benefits - measured from the date of injury, from the expiration of any period covered by disability payments, or from the last date medical treatment was furnished for the injury.

When does the clock start for a gradual injury? For an occupational disease or a cumulative injury, Labor Code section 5412 defines the date of injury as the date on which the employee first suffered disability from the condition and either knew, or in the exercise of reasonable diligence should have known, that the disability was caused by present or prior employment. Both elements are required. If you suspected long ago that your repetitive-strain condition came from work but only became disabled by it recently, the date of injury is not the day you first suspected - so do not assume you are time-barred.

If an injury gets worse later: Labor Code section 5410 gives an injured worker five years from the date of injury to start proceedings on the ground that the original injury has caused new and further disability, and the appeals board retains continuing jurisdiction during that period. This is the classic situation where an accepted injury deteriorates after benefits stopped. The one-year period in section 5405 is not the only clock, and a worker in that position should ask DWC's Information and Assistance Unit about section 5410 rather than concluding they are too late.

The one-year period is separate from - and longer than - the 30-day notice deadline above. Don't count on the full year, though. Filing the DWC-1 claim form promptly, right after you report the injury, is what actually starts benefits moving and protects your rights if a dispute arises later.

Medical care: who picks your doctor

This is one of the most misunderstood parts of the system. According to DWC and Labor Code section 4600:

• Your employer or its claims administrator generally selects the primary treating physician you see for the first 30 days. If the employer or its insurer has a Medical Provider Network (MPN) - a group of providers approved by DWC's administrative director - your care is generally directed within that network.
• If there is NO MPN, you get free choice on day 31. Labor Code section 4600(c) says that unless the employer or the employer's insurer has established or contracted with an MPN, after 30 days from the date the injury is reported the employee may be treated by a physician of the employee's own choice, or at a facility of the employee's own choice, within a reasonable geographic area. DWC says the same thing in its medical care guidance: once the first 30 days pass, if there is no MPN (and you did not predesignate), you may be treated by a doctor of your choice. Many employers do not have an MPN - so if you have been told you are stuck with the insurer's doctor forever, check whether an MPN actually exists.
• Predesignation gets you your own doctor from day one. You may treat with your own physician from the start if, before the injury, you gave your employer written notice naming your personal physician (or medical group), that doctor agreed in advance to treat you for work injuries, and you had health coverage for non-occupational injuries and illnesses. A separate, similar notice process applies to predesignating a chiropractor or acupuncturist.
• Changing doctors inside an MPN. If your employer does use an MPN, you can generally switch to a different physician within that network if you're not satisfied with your treating doctor.

So the short version: if you predesignated, you choose from the start; if there is an MPN, your choice is generally within that network; and if there is no MPN and you did not predesignate, your employer or its claims administrator directs care for the first 30 days, after which you may choose your own physician or facility within a reasonable geographic area. See DWC's medical care page, and ask DWC's Information and Assistance Unit if you're not sure which rule applies to you.

Wage-replacement benefits

If your injury keeps you off work, you may qualify for temporary disability (TD) payments. DWC states that TD pays two-thirds of the gross (pre-tax) wages you lose because of the injury. That figure is subject to a statewide weekly maximum and minimum that are set by law and adjust every year - check with DWC for the current amounts rather than relying on a number you saw elsewhere.

Waiting period: under Labor Code section 4652, no temporary disability is payable for the first three days after you leave work because of the injury - unless your temporary disability continues for more than 14 days, or you are hospitalized as an inpatient. If either exception applies, you are paid from the date the disability began. The first TD payment is due no later than 14 days after the employer has knowledge of the injury and disability, and later payments are made every two weeks.

The 90-day rule: DWC states that if the claims administrator does not accept or deny your claim within 90 days after you submit the completed DWC-1 claim form, your injury is presumed to be covered. That's one more reason to file promptly and in writing.

Permanent disability

If your injury leaves lasting impairment once your condition is "permanent and stationary" (also called maximal medical improvement), a physician evaluates and rates it. That impairment finding is converted into a permanent disability rating, and the rating can be apportioned if part of the disability is due to a non-work cause. The rating process is technical and case-specific, and the rating schedule itself is detailed - confirm how it applies to your injury with DWC's Disability Evaluation Unit or Information and Assistance Unit.

If your claim is denied

A denial is not the end of the road:

• You (or your representative) can file an Application for Adjudication of Claim with the Division of Workers' Compensation, which puts the dispute before a workers' compensation administrative law judge at a DWC district office.
• If you disagree with the judge's decision, you can file a Petition for Reconsideration with the Workers' Compensation Appeals Board (WCAB) - a seven-member judicial body (Labor Code section 111) whose commissioners sit in panels of three to decide these petitions. Under Labor Code section 5903, the petition must be filed within 20 days after the decision is served on you; that is extended to 25 days when the decision was served by mail to a California address. The petition must actually be received within that time, so do not wait until the last day.

Missing the reconsideration deadline can cost you the appeal. Calendar it the day you receive an unfavorable decision.

Where to get free help in California

• DWC's Information and Assistance (I&A) Unit provides free help to injured workers, including answering questions about your rights and reviewing paperwork. Call 1-800-736-7401, or find your local office through dir.ca.gov/dwc. Many district offices also hold free informational workshops for injured workers.
• DWC's injured worker resources, including fact sheets and the guidebook, are at dir.ca.gov/dwc/injuredworker.htm.
• Legal aid organizations in California may be able to help with related employment issues, especially if you believe you were fired or retaliated against for filing a claim.

Filing a workers' compensation claim is using a benefit that exists for exactly this situation. Report the injury accurately and completely - describe what happened and how you feel, without minimizing or overstating it - and let the process work.

This article provides general legal information about California workers' compensation law, not legal advice for your specific situation. For guidance on your own claim, contact DWC's Information and Assistance Unit or a qualified professional.