Law Office of Michael K Wax, APC

Protecting the rights of today’s workers

Frequently Asked Questions

We have established our reputation as effective, tenacious, credible advocates for our client’s worthy cause.

As part of our firm’s longstanding commitment to the working people of San Diego County, we have attorneys who specialize in the practice of Workers’ Compensation law and a dedicated staff who assist them in their efforts on behalf of injured workers.

California’s Workers’ Compensation system is designed to assure every California worker certain basic rights when injured in the course of employment regardless of fault. There are generally two categories of workplace injuries: those resulting from a specific incident, such as a fall from a ladder; and those resulting from a continuous or cumulative trauma, such as repetitive typing on a keyboard.

In some situations, an injured worker has a right to receive compensation under both the Workers’ Compensation law and under the civil law. Here are some examples:

When an injury occurs as a result of the worker’s use of a tool, piece of equipment or machinery if it was defectively designed or manufactured or inadequate warnings were given to the worker as the end user of the product. In such cases, the manufacturer or another party — in addition to your employer — may be responsible under the civil law for the harm caused.

When an injury occurs as a result of the negligence or fault of another person outside your place of employment — such as another driver when you are on the road in connection with your employment, or as a result of the negligence or fault of a person working for another employer — such as a worker on a construction site working for one subcontractor when you work for another. In such cases, the other party or other party’s employer — in addition to your employer — may be responsible under the civil law for the harm caused.

When an injury or its long-term consequences are made significantly worse by the negligence of a doctor or other medical provider who treats the injured worker. In such cases, the medical provider — in addition to your employer — may be responsible under the civil law for the harm caused

To protect your rights under the civil law — in addition to your rights under the Workers’ Compensation Statute — it is often critical that evidence be preserved, inspected and photographed on a timely basis. On these occasions, getting competent legal representation can make the difference between a complete and only a partial recovery for all the harm done. 

Whether or not another party will or may become accountable for the harm you have suffered, your employer remains responsible for your injury under California’s Workers’ Compensation law regardless of fault. You have five basic rights under the Workers’ Compensation system.

Your Five (5) Basic Rights

  • The right to receive a weekly compensation benefit while you are temporarily, totally disabled.
  • The right to have 100% coverage for the medical care required to treat your injury.
  • The right to compensation for any permanent disability.
  • The right to future, lifetime medical care to treat the effects of your injury.
  • The right to receive certain retraining benefits, depending upon the date of your injury.
Enforcement of these five basic rights can involve complications — for example, when an employer denies that the injury occurred in the course of the worker’s employment or when an injured worker has a preexisting medical condition; and there are often disagreements about the extent of a worker’s permanent disability and whether or not he or she can return to the same work.
On-the-job injury claims must be timely reported and filed with the Workers’ Compensation Appeals Board (WCAB) in the appropriate County in California. Generally, a claim must be filed within one year from the date of the injury or within one year from the date of the last payment of Workers’ Compensation benefits for the injury, whichever of these two events occurred last — but, in any case, must be filed no more than five years from the date of the injury. If an employer accepted an injury as work-related and settled it using the legal device known as a “Stipulation and Award,” then the injured worker has five (5) years from the date of the injury to file a Petition to Reopen with the WCAB in his or her County in order to obtain further benefits for the injury.
Making a full recovery from a workplace injury is the most important objective and getting quality medical care can make a difference in achieving this objective. The employer/insurance carrier is obligated to provide you with a doctor within 72 hours of your report of injury and your request to see a physician. The employer may require you to be treated within their Medical Provider Network (which is a group of doctors that are in the employ of the employer/insurance carrier). It is important to know who those physicians are and whether or not they can provide the care you need. If a full recovery cannot be achieved, the physician who treats your injury will have considerable power to affect each of your five basic rights — favorably or unfavorably. Not all medical providers are created “equal” — not with regard to their skills and abilities as treating doctors or surgeons and not with regard to their thoroughness and accuracy in assessing the long-term consequences of an injury and the level of likely disability. Having a skilled medical provider — who is fair and objective — may make the difference in how well you “recover,” not only from the injury itself but under the Workers’ Compensation system as well.
If you do not retain an attorney soon after your injury occurs, at least take advantage of the opportunity to have a free consultation with one of our firm’s Workers’ Compensation experts before your treating doctor releases you from care. Once you are released and you have reached, “Maximum Medical Improvement,” your injury will be rated and this rating determines the amount of permanent disability compensation you are entitled to. This is determined by the use of the AMA Guides, which does not take into account your work or ability to work in determining your impairment; rather it is supposedly based on objective factors, such as measurements as well as how your injury affects your, “activities of daily living.” Establishing the permanent disability rating for your injury is a critical event in your case and you deserve sound legal advice before this happens.

Special penalties apply when an injury results from an employer’s serious and willful misconduct.

An employer also may not discharge or discriminate against an employee who is injured on the job because he or she filed a Workers’ Compensation claim, received a rating, award or settlement of a claim, or testified in another employee’s case. An employer who does so commits a misdemeanor entitling the employee to reinstatement, back pay, and half of the Workers’ Compensation benefits to which he/she is entitled up to $10,000.

When an employer discharges or discriminates against an employee based on his/her work-related injury (regardless of his/her participation in claim proceedings), a civil damage remedy under California’s Fair Employment and Housing Act may also be available. See Disability/Pregnancy Discrimination..

We handle Workers’ Compensation cases on a contingency fee basis — meaning that an injured worker does not pay any attorney’s fees unless there is a recovery of money. A judge must approve any attorney’s fees to be paid to the attorney for the injured worker and these attorney’s fee awards are a percentage of the permanent disability recovery or of weekly benefits paid during the injured worker’s participation in vocational rehabilitation services, usually ranging from 12% to 15%.

Consultations, however, are free until a representation agreement is made and a fee Disclosure Statement is reviewed explained and signed by the injured worker. Take advantage of the opportunity for a free consultation to make sure you know your rights and get the benefits you deserve and have earned as a California worker..