Workers' Compensation

Conclusive Presumption of Total Dependency in a Workers Compensation Case

Attorney Kevin Cortright — Wed, 17 Apr 2013 17:49:41 +0000

Under LC3601, certain dependents are entitled to a presumption of total dependency. The presumption applies to minor children. SCIF v. WCAB (Asher) (1993) 58 CCC 760,762. It ensures that a child or spouse who is entitled to the presumption will be considered a total dependent regardless of the extent of actual dependency. Hubbell v. Thatcher Glass Company (1982) 47 CCC 764, 766. If an applicant satisfies the conditions of LC 3501, he or she is entitled to a conclusive presumption of total dependency, even if he or she was not, in fact, dependent on the decedent. Douglas Aircraft Co. Inc. v. IAC (Meehan) (1944) 9 CCC 182, 184. Stated otherwise, an award of compensation under the statute on account of the death of an employee is made to a child as a total dependent when the acts giving rise to the presumption exist, regardless of actual dependency. Smith v. WCAB (1966) 31 CCC 307, 309.

The benefit of establishing a presumption of total dependency is that you do not have to prove or produce evidence of dependency, it is basically automatic. Meeting the presumption helps establish and ensure that the dependent or dependents of a deceased workers obtain the death benefits that they are entitled to.

California Labor Code Section 3601 States the following

3601. (a) Where the conditions of compensation set forth in Section
3600 concur, the right to recover such compensation, pursuant to the
provisions of this division is, except as specifically provided in
this section, the exclusive remedy for injury or death of an employee
against any other employee of the employer acting within the scope
of his or her employment, except that an employee, or his or her
dependents in the event of his or her death, shall, in addition to
the right to compensation against the employer, have a right to bring
an action at law for damages against the other employee, as if this
division did not apply, in either of the following cases:
(1) When the injury or death is proximately caused by the willful
and unprovoked physical act of aggression of the other employee.
(2) When the injury or death is proximately caused by the
intoxication of the other employee.
(b) In no event, either by legal action or by agreement whether
entered into by the other employee or on his or her behalf, shall the
employer be held liable, directly or indirectly, for damages awarded
against, or for a liability incurred by the other employee under
paragraph (1) or (2) of subdivision (a).
(c) No employee shall be held liable, directly or indirectly, to
his or her employer, for injury or death of a coemployee except where
the injured employee or his or her dependents obtain a recovery
under subdivision (a).

Various Exceptions to Employee Definition For Workers’ Compensation

Attorney Kevin Cortright — Thu, 16 Aug 2012 22:16:48 +0000

In addition to the general definition of an employee for workers’ compensation purposes, there are more definitions as defined judicially.

These employment relationships have the possibility, for various reasons, of including students, jurors, judicial branch employees, union members, workfare recipients, those that do community service instead of paying fines, homeowners association employees, and referral agencies. If specific requirements are met, these types of people are considered to be employees just as any normal employee, and is considered to deserve workers’ compensation benefits for an injury on the job.

Definition of Employee in Workers’ Compensation

Attorney Kevin Cortright — Thu, 16 Aug 2012 22:07:58 +0000

An employee can still receive workers’ compensation in some situations for an injury on the job even if they have not entered into an official contract of hire with the employer.

What must be present is the knowledge that work being done for the employer was not gratuitous and that it benefited them in some way. Because of this aspect, in some situations such as tryouts or off seasons, it is even possible for injured persons to receive workers’ compensation benefits for their injuries. This includes those that are unlawfully employed, or otherwise have come to illegal employment through fault of their employers for factors such as age or citizenship.

Workers’ Compensation and Contract of Hire

Attorney Kevin Cortright — Thu, 09 Aug 2012 20:50:12 +0000

Employees are usually classified so under contract of hire with an employer.

This contract of hire can be oral or written, but would in most cases include consent of both the employer and employee for the job to be given and under what circumstances they are given under. The employee is considered to have accepted a contract of hire when they agree to giving an employer any form of service that benefits the employer, and is therefore protected under workers’ compensation laws of the state. Usually, volunteers are not able to receive workers’ compensation because they are not paid for their services in any way, including non monetary compensation. In any of these situations, a contract of hire between an employer and an employee is grounds for workers’ compensation benefits whether it is express or implied.

Employees and Workers’ Compensation

Attorney Kevin Cortright — Wed, 08 Aug 2012 21:30:28 +0000

Any employee has the right to be awarded workers’ compensation for their medical expenses when injured on the job.

An employee is classified as anybody that is appointed to a position within a company in either an oral or written contract. This also includes paid public officers and those that are appointed to their positions.

Employers and Workers’ Compensation

Attorney Kevin Cortright — Mon, 06 Aug 2012 23:10:25 +0000

Employers, whether they are public or corporate, must follow certain rules in order to keep up with their responsibilities regarding employees such as securing workers’ compensation insurance.

With regards to public employees, those that are injured by another public employee are not able to file a civil claim but only workers’ compensation claims. This is because all state employees are considered to be under the single entity of the state as an employer. Corporate employers are considered to be one person so that workers’ compensation claims can be filed against the company as a whole. The definition of an employer does not include nonprofit organizations.

Workers’ Compensation Fraud

Attorney Kevin Cortright — Thu, 02 Aug 2012 21:49:59 +0000

Workers’ Compensation Fraud is a serious subject because not only does it raise prices of workers’ compensation insurance coverage premiums for employers, but it also lowers legitimacy for employees that actually have been injured in the workplace.

To be considered fraud one must either knowingly commit or help another commit any spoken, written, or material evidence for or against the claim and compensation. There can be workers’ compensation fraud on all sides of the situation including from the employer, insurer, and most commonly, the employee. If found guilty of workers’ compensation fraud, that person can be subject to criminal convinction including imprisonment and fines, loss of compensation, and may also have the responsibility of paying restitution to the victim along with fees for the investigation. Per the Workers’ Compensation Truth in Advertising Act, any entity that advertises filing a claim for workers’ compensation must include certain language that states the illegal nature of fraud.

Employer and Insurer Relations With Workers’ Compensation Insurance Claims

Attorney Kevin Cortright — Thu, 02 Aug 2012 21:32:10 +0000

When it comes to relations between the employer and their insurer, sometimes the situation can get sticky.

If the employer does not cooperate with the insurance company with proceedings on workers’ compensation claims, then the insurer has the right to opt out the employer and continue with all proceedings without needing approval from them. However, the employer is usually notified of any decisions that are made in relation to the case because they might affect their insurance premium. If the insurance carrier breeches the good faith of their workers’ compensation insurance contract, then they are subject to civil actions brought forth by the employer.

Insurers Defending Workers’ Compensation Claims for Employers

Attorney Kevin Cortright — Thu, 02 Aug 2012 21:18:40 +0000

When an employer has a workers’ compensation insurance carrier they are responsible for not only covering the compensation but if a claim against the employer can possibly need coverage, then the insurance company has the responsibility to defend.

If they do not carry out this duty to defend the employer, they can be subject to pay the costs of the attorney fees and other damages incurred from the situation. This all needs to be done if the workers’ compensation insurance contract between the employer and the insurance provider has language that covers defense.

Claims Adjusters for Workers’ Compensation

Attorney Kevin Cortright — Thu, 02 Aug 2012 19:09:48 +0000

Claims adjusters, otherwise known as claims administrators, examiners, supervisors, or managers, have the responsiblity of investigating a workers’ compensation claim from an injured employee, working with the case for the duration, and getting the worker the compensation they deserve.

Claims adjusters have to be qualified in the areas of establishing claims reserves, hiring professionals such as lawyers and investigators, scheduling medical exams and following up on the medical status of the employee, notifying them when necessary, and negotiating settlements in order to work in the field. Claims adjusters can be audited, and if in any way it is found that their job has been done incorrectly, they are subject to civil and administrative penalties along and can even civil suits from employers