Head Injury

Due to the number of head injuries reported by the CDC, there are a couple of laws that protect employees, who are working under given conditions. These laws and regulations are implemented and regulated by the Occupational Health and Safety Administration (OSHA). The agency has over the years implemented various regulation that targets protective headgear, while at work. In case of an accident, especially involving head injuries, the employee has the right to request an OSHA inspection without the intimidation of employment discrimination. The corporation and employer should have the concern of protecting and keeping you safe. If any of the following regulations are violated, then you are entitled to workers’ compensation. It is very important to understand these OSHA regulations, for you to categorize and identify safety violations. The proprietor accountabilities under the OSHA agency include;

1. The employer has the responsibility of providing a safe working environment, this means that they must follow all the regulations that administer the company’s trade. Example, if you work in a construction environment, then the corporation must follow specific guidelines that relate to the field, heavy machinery and any other regulations that focusing on safety to their employees.

2. The employer should give a daily inspection to the hazardous conditions and equipment while making sure they are in line with the OSHA standards.

3. It's the employer's duty to provide you with the safety information, the process usually involves hanging OSHA posters, labels or any safety signs. The main reason for this is to provide employees with easy access to information.

4. The corporation or employer should provide basic training, for you to be able to handle the tasks and also so that you are knowledgeable about how to deal with the dangerous situations. The employer has the responsibility of providing a safe working environment, this means that they must follow all the regulations that administer the company’s trade. Example, if you work in a construction environment, then the corporation must follow specific guidelines that relate to the field, heavy machinery and any other regulations that focusing on safety to their employees.

5. For some of the corporations that involve tasks such as construction or mining, they are to provide headgear or hardhats for their employees. The OSHA agency gives the three type of hardhats according to the work you are doing:

   • Class C- the conductive Helmet – this type of helmet is lightweight and doesn’t cover any type of protection from electrical hazards and from any flying material. Its purpose is to provide little protection from small debris

   • Class E: electrical helmet- the element has the ability to provide protection against flying objects and electrical protection of up to 20,000 volts

   • Class G: General Helmet – protects you from heavy impacts and for electrical protection, it can handle up to 2200 volts.

1. Federal Employer’s Liabilities Act (FELA)

   Employees who work on railroads are not covered by worker compensation laws and protection. For some of the workers, this can be difficult for them to claim compensation in case of head injuries. The lack of unawareness on this law leads to many of the workers filing the wrong claim for workers’ compensation.

   The OSHA regulations are in line with this federal act, which means, they should go at par with the standards offered by OSHA. In case of any head injury, the railroad worker has no obligation to speak to their employer or even give a statement on the events that happened. From the collective bargaining agreement or your contract, the right move is for you to talk to your union representative or supervisor about your incident for time off. The worker will need to fulfill all the contractual obligations, they should also withhold any formal statement in writing or verbal from the railroad representative itself.

2. Labor Code Section 3600

   This sets the basic rules on the injuries covered under workers’ compensation in the state of California. The statutes details the benefits workers get in case of injuries and disease that arise from their working environments. The status also describes some other circumstances when the compensation doesn’t cover the injuries.

3. Labor code sections 5400 to 5405

   The labor codes give a set of procedures and deadlines for reporting on the injuries to your employer and the filling of a worker’s compensation claim. If the deadlines aren’t met by these deadlines, there is a chance you might lose the rights to your benefits.

4. Labor code section 4600

   The section gives the worker the right to receive necessary medical treatment for the head injuries. The labor code also gives the rules of when to and not to choose your own doctor for the treatment.

5. Labor codes section 5500 to 5507

   This labor code deals with appealing claim denials, it states that the claim presented by an injured worker will be valid if the insurance company doesn’t explicitly reject the claim within ninety (90) days after it was filed. If the insurance denies the claim, the worker can challenge that decision by getting a hearing in front of a workers’ compensation judge. The first procedure is to open an official case by filing an application for adjudication of the claim. The labor code 5500 to 5507 will give the detail filing requirements for the hearing and also the procedure that is required for the hearing of the dispute.

6. Labor code 4060 to 4062 and 4616.3

   The law provides different statutes that give an outline for the rules concerning a disagreement between you and the insurance company on medical evaluations. The issues in the case involve the following:

   • If the head injury you received is covered under workers’ compensation which is the labor code 4060

   • The recommendation of your treatment or diagnosis given by your doctor

   • If you have or don’t have a permanent disability as a result of the head injury

7. Labor section 4650 to 4654

   The section code gives the details of the rules for determining how much you will receive in case of a temporary and permanent disability.

8. Labor code 4650

   The labor code details the deadlines for payments of all the temporary and permanent disability benefits you will receive if the insurance doesn’t send that check on time.

Labor code 5400 states that the injured individual should notify their employer in writing within the 30 days, however, the 5402 section states that the employer can learn of the head injury in other ways, which include the supervisor and is considered as written notice. The employer should thus not be given room to investigate the claim. They must provide a claim form within one (1) working day. The following will be details you will fill in the document:

• Your social security digits.

• Type of injury or the body part affected, in this case, it's a head injury.

• Date and the time the injury occurred.

• Your address and a clear description of where the incident took place.

You are required to ensure that the employer fills their part of their document with their details.

In the state of California, any employee injured during work is generally limited to seeking recovery by filing a workers’ compensation claim. Once you file the claim, you can't sue your employer in a civil court. Nevertheless, there are a few primary exceptions where you can sue the employer for the head injury involved in the workplace. The conditions include the following

1. The employer caused the head injury by a willful physical assault.

2. The head injury is aggravated by issues related to the occupation, that the employer deceitfully covers.

3. Dual capacity

4. The injury is from a power press machine that won't set properly

5. The employer doesn't have workers’ compensation insurance when the head injury occurs.

Assault from your Employer

The worker's compensation covers the head injury, only if the event leading to it was accidental unless the result of that injury is from a conscious and deliberate intent. At the civil court, you will have to show the evidence, that your employer was conscious to do it, this includes a physical act. You will also have to prove that he/she did it to harm you. If the two factors aren't proven in court, it will be considered as a work injury and will be in the legal terms of the worker's compensation system.

The head injury is related to fraudulent concealment

Fraudulent concealment is when you as the employee is exposed to certain conditions that your employer knows about and doesn't share the information to you and the other employees. If this is the case that leads to your head injury, then your employer has committed fraud, simply by not disclosing the facts, they are supposed to disclose.so you can hire a worker’s compensation

Dual capacity

The head injury is from a defective product manufactured by your proprietor and is either retailed, rented or transferred in return for a valuable consideration to an independent third party, and that product is provided to you to use by a third person. If this situation is presented to a workers’ compensation lawyer, then this can be forwarded to a civil court to sue the employer.

The lack of compensation insurance

In the state of California, the employer is required to have insurance dedicated to his/her employees. Then if the employer doesn’t secure the payment with regards to the compensatory damages, the injured employee has the right to take the employer to court for the damages. But how do you know if your employer has insurance? First, they should have information on whom to contact, in case of a work-related injury. As an employee, you have the right to ask the insurance name and contact information number. The insurance company will have to confirm that you are indeed covered on the date of your head injury if not, you can claim workers’ compensation and sue your employer in a civil action. This is clarified under the California labor code 3715. When you sue your employer, you don't have to prove that it was the employer's fault, but it’s the employer’s duty to prove themselves. Also, they can’t state that it was the employee partial fault on not having insurance covers.

In case you file a workers’ compensation claim and you aren't insured, the uninsured employers benefit trust fund step in and pay the benefits so that you can receive the benefits in a timely manner.

It's a three-step process in the state of California

1. Reporting the head injury

2. Filing the actual claim with your employer

3. Filing another application with the Workers’ Compensation Appeals Board (WCAB). It's known as the "application for adjudication of the claim".

Workers in the state of California receive compensation when they get head injuries or another type of injuries on the job. But some of the insurance companies often deny this employees claims or sometimes, they don't award full benefits. The state of California gives the injured worker the rights to appeal to the reasons as to why they haven't received the benefit. Here are some of these legal reasons why they deny you compensation.

1. Missing of the deadline to file the compensation

   You are required to file the compensation file within the thirty (30) days after the accident happens. The insurance company has the right to terminate the claim after those thirty days, though you have the right to appeal it. The claim should be in writing, also reporting immediately helps avoid delays in getting your compensation. This law is under the California labor code, section 5400.

2. Denials for the head injury isn’t work-related

   In regards to California's workers’ compensation, it only covers injuries that arise out of and in course of the employment. Simply dictated as; you were performing services to our employer and those services are the reason as to what resulted in the head injury. This statement is the source of so many disputes over the worker's compensation claims. Though the California law spells out the conditions, the head injury won't be considered as work-related:

   • You were drunk or you were under a controlled substance

   • You started, got yourself into a fight or you hurt yourself on purpose. The fight is a result of the felony that you got convicted for.

   • You were voluntarily participating in off-recreational activities that weren't work-related.

   • When you were commuting to or from work

3. No medical treatment

   In case you didn’t receive any medical treatment and you are claiming for compensation; the insurance company won’t give the compensation. You have to get medical treatment for you to receive the compensation benefits.

4. An injury is not compensable

   In case the claim of the head injury is related to a stress injury, it must be proven that it was a work situation that caused it. Although California also covers stress-related injuries.

5. Denial based on employment

   The employer can deny that the injured individual worked for the insured Employer. This is the case if you are under an independent contract agreement.

1. What are the types of benefits I will receive?

   Medical care: this will involve our health, hospital services, doctor visits, medical equipment or any other medical attention that is required under section 4600 of the labor laws.

   Temporary disability payments: these are the wages you lost while you were in recovery, it is estimated as two-thirds of the pre-tax wages and does not pass the one hundred and four (104) weeks. The payments are classified under section 4650.

   Permanent disability payments: Payments if the head injury resulted in measurable, permanent physical or any type of mental impairment and resulted to not recovering.

   Retraining: If you are unable to return to your previous employment you will receive these payments.

   Death benefits: This will be paid if your loved one died from the head injury that was work-related.

2. What if I lose my job before I claim?

   For the head injury, if you claim after you have been let go or notified that they will be laying you off, you have to prove relatable evidence which will include the following:

   1. That your employer was given a notice of the head injury prior to the layoff

   2. The medical records prior to the layoff will give proper evidence of the injury.

   If you claim that the head injury is related to psychiatric injury, the rules under code 3208 will be a little different. You have to show the following:

   • The event that occurred was sudden or extraordinary.

   • That your employer was given a notice of the head injury prior to your layoff.

   • Medical records of the incident were prior to the termination is a form of evidence.

   • There was either sexual or racial harassment related to your head injury.

3. How will the insurance company inspect my claim?

   If you have filed the claim, they have ninety days to accept or deny the claim, if they pass the ninety (90) days the injury becomes accepted automatically.

   Until they come up with a decision about the claim, the insurance company has to provide you with up to ten thousand ($10,000) dollars, even if the claim ends up being denied.

   They may get prior medical treatment and employment records through a subpoena. They may also ask you questions under oath but that is in a deposition. The insurance company might ask you to be evaluated by a doctor.

4. Do I need workers’ compensation insurance if I am self-employed?

   In the state of California, it’s optional for most self-employed workers to have workers’ compensation insurance. Under the state, if you are under the c-39 license, you are authorized to have a workers’ compensation insurance. Furthermore, if you have the responsibility for carrying workers’ compensation as a self-employed individual, they need to have and present proof of the insurance to their customers. The failure to do so will result to license revocation and you may be liable for criminal prosecution.

5. What are the death benefits?

   If the head injury resulted in the death of a loved one, then you will receive death benefits. But the benefits will depend on how many people, the individual took care of. The individuals can get up to three hundred and twenty thousand dollars ($320,000) to divide between themselves, also they will receive up to ten thousand dollars in burial expenses.

If you are facing any problems with workers’ compensation, it is necessary to find a qualified worker compensation attorney. Experience is the key factor when dealing with these unique cases, it could be the difference between getting the full benefit and not getting any at all. That is why the Workers Compensation Attorney Group in Long beach focuses on making sure you receive your full compensation. Call our Long Beach Work Injury Attorney today at 714-716-5933 and talk to an experienced lawyer concerning your workers’ compensation today.