Lawyer Monthly Magazine - May 2019 Edition

81 SUPER LAWYERS MAY 2019 www. lawyer-monthly .com When do you think an injured worker should see an attorney? Visiting an attorney and hiring an attorney really should be two separate decisions. As I said above, knowledge is power and we believe that injured workers should be empowered to know what’s going on in workers’ compensation and when would be the best time for them to hire an attorney. We also tend to let sleeping dogs lie, meaning if everything is proceeding normally, i.e., the person is receiving their temporary disability, receiving their medical care and there are no problems in the case, they don’t need an attorney. They may never need an attorney. We sometimes look at an injured worker hiring an attorney as entering the fight. We do not want to enter a fight until a carrier has started it, and then we want in. When looking for an attorney, they should absolutely pick an attorney that has an office near their local Workers’ Compensation Appeals Board. Hiring an attorney you have never met is just a bad choice; it’s also bad lawyering. People should also look for a certified specialist. The attorney should also have a strong connection to CAAA. That shows they’re up to date on all they need to know. Can you be terminated after filing a worker’s compensation case? Another issue that people come to see us about is how their employers are treating them after the industrial injury. The law tells us that there shall be, “no discrimination against industrially injured workers,” but that level of protection is not the reality inworkers’ compensation. In fact, we’ve found that workers’ compensation laws protecting injured workers from discrimination are so watered down we steer people in a different direction. We have an attorney in our office named Benjamin Karpilow. He takes and works cases of discrimination law under the Fair Employment and Housing Act (FEHA). The FEHA has real penalties for employers for discriminating against disabled workers and it provides for the payment of attorney’s fees. Ben is a solid attorney. He can’t take all of the discrimination cases we find, but in our office, he gets to see many cases. He finds those that are the best and most viable cases which are the ones that end up being filed in court. What benefits are available to injured workers? There are four basic benefits available to injured workers. First is temporary disability. That pays you up to 66% of your lost wages while you’re off of work and recovering. There is a cap of 104 weeks, meaning that after 104 weeks your temporary disability stops. If you’re out of work longer, EDD may provide another year of protection. If you are out of work for more than three years, many workers have only Social Security to help. Then there is permanent disability. Permanent disability used to mean the percentage of loss that you had in the labor market, but that meaning is pretty much lost. It is now more of an algorithm meant to pay injured workers for the disability that they receive. It’s the equivalent of pain and suffering in a civil suit, but it’s very much disconnected from the pain and suffering the injured worker goes through. There is also medical care which we’ve already mentioned. The employer is supposed to provide all the care that is necessary to cure or relieve the effects of the industrial injury but, as you know, that has been seriously damaged. Finally, there is a small vocational rehabilitation benefit. It’s called the SJDB. It’s a $5,000 grant directly from the State of California for cash, basically, and then up to $6,000 in benefits paid for by the carrier. Those monies are to be spent in an attempt to return to work, or to obtain an education. Attorneys are not allowed to participate in that system, or at least get paid for participating in that system. We do help people with that, also. What happens to people who are independent or freelance workers? Do you think there will be any change in this area? There has been a recent case that is helpful but was not intended for worker’s compensation. However, all the laws are supposed to work together and we also Contact Richard Meechan Law Office of Richard Meechan 703 2nd St Suite 200 Santa Rosa, CA 95404 Phone: (707) 528-4409 Fax: (707) 528-3381 Richard Meechan Richard Meechan has over 30 years of experience in dealing with industrially injured workers. He works hard to guard the rights of injured workers in Sonoma, Mendocino, Marin, Napa, and Lake Counties in California. have some great tools to help us define whether an injured worker is, in fact, an employee or an independent contractor. The agreement between the parties has some power, but we actually look much deeper as to who is controlling the work; whether the worker is being paid on an hourly basis or paid by the project; do they have business cards and are they working for other employers with the same skills. Is the business required to have these types of workers in order to do this business? All these things tend to point to the person truly being an employee rather than an independent. So, if you’ve had a serious injury and the employer is saying you’re an independent contractor, it really is important to seek legal advice. Can you sue your employer? If you’re suing for an injury from work, workers’ compensation is the exclusive jurisdiction for litigating that injury. So, basically, if it’s covered by worker’s compensation there is not another cause of action against the employer for the injuries. It’s all under workers’ compensation. LM Another issue that people come to see us about is how their employers are treating them after the industrial injury.