San Jose is often called the capital of Silicon Valley, an area known for its high concentration of engineers, tech workers, and expensive real estate. Repetitive motion injuries gained from long hours at the keyboard – like carpal tunnel and tendinitis – are common throughout the area.
However, low-wage jobs are responsible for a large portion of workers comp claims in the area.
“We have more technical people in the Silicon Valley area, although they tend not to get injured as much as lower-wage workers do,” Michael Grimes, a workers compensation attorney based in San Jose, said.
Slips, trips, and falls are among the most common types of injuries reported in workers comp claims. It’s no surprise that a worker who spends their shift on their feet may exert themselves more physically than someone sitting behind a desk.
“Restaurant employees and retail clerks are injured more frequently than others are,” Grimes said.
Reasons to Hire a San Jose Workers Comp Attorney
Hiring a workers comp attorney can secure benefits you were not aware you qualified for. After an injury, it’s important to contact an attorney without delay to avoid pushback from insurance companies or your employer. The longer you wait, the greater the chance of complications arising that can postpone your treatment or settlement.
“There’s a statute of limitations involved and you certainly don’t want to mess with that,” Grimes said. “When a worker’s injured they should contact an attorney as soon as possible.”
In California, you have one year from the date of your job-related injury or illness to file for workers compensation benefits. This may seem like ample time, but the longer you wait, the harder it becomes to verify details of the case and confirm the events that led to your injury.
“The attorney needs to get working on the case as soon as possible so that evidence is not lost,” Grimes said.
Not every case requires an attorney. There are times when your job and insurance company are willing to push through the case without much resistance. If you feel confident with how things are moving forward, you may not need a lawyer. Most workers compensation attorneys will let you know if your case calls for professional aid during a free pre-consultation meeting.
Here are some signs that your case could benefit from the help of a workers compensation attorney in San Jose:
- Your employer doesn’t report your injury or doesn’t provide you the form to report it.
- You are not sure you’re getting all the benefits you should be receiving.
- Your employer denies the injury happened at work.
- Your employer refuses to accommodate work restrictions.
- You have a pre-existing condition affecting the same part of your body that was injured at work.
- You have been denied treatment or benefits.
- You were fired after reporting an injury.
- You are being asked to return to work before you have fully recovered.
What Does a Workers Comp Lawyer in San Jose Do?
A workers comp attorney is trained in a complex niche of the law that most people don’t have much experience with. These attorneys have a grasp of the layers and nuances that make up each case. This comes in handy when you need a specialized doctor or simply someone who can negotiate on your behalf.
“An attorney uses their judgment when picking qualified medical evaluators,” Grimes said. “If a worker is unrepresented, they won’t have a clue which of the doctors is going to give them the best advantage. A workers comp attorney normally knows all the qualified medical evaluators by reputation.”
There’s also the paperwork to sort through, which can pile up depending on the severity of the injury and the number of parties involved. And then there is the process of an appeal which may involve a hearing before a judge and a demand to cite case law at the hearing.
“When treatment is denied, an experienced attorney will be in a better position to put together evidence necessary in an appeal,” Grimes said. “Negotiating with the other side, he/she can usually get a better deal than somebody who is not represented. Just knowing the system and how it works, is usually quite the advantage.”
Here are some things a worker’s comp attorney can do for you:
- Depose doctors involved in the treatment.
- Depose claims adjuster representing insurance company.
- Handle all preparations and meet all deadlines if the case goes to a trial.
- Call witnesses and cross-examine opposing witnesses.
- Conduct settlement negotiations with the insurance carrier.
- Know the grounds for appeals, if the case gets that far.
- Conference with doctors treating the injury.
- Get a full understanding of prior injuries and claims and how that impacts the current situation.
How Much Does It Cost to Hire a Workers Comp Lawyer in San Jose?
Clients don’t pay workers comp attorneys directly and the initial consultation is always free. This allows you to go over details of the case and determine ahead of time whether you will need professional aid.
Attorneys in workers compensation must first win your case before they’re awarded any compensation. Their fee is a percentage of your settlement. In California, this ranges between 9%-15% and varies by the complexity of the case and overall outcome.
A judge must authorize any compensation made to a workers compensation attorney. Some lawyers may have their clients sign fee agreements before they take on a case, however, the same rules apply. The attorneys will still need a judge to sign off on their payment before they can be compensated.
The benefit of having a workers comp attorney often reveals itself in the settlement amount. Usually, workers represented by an attorney receive larger settlements than workers representing themselves.
Filing a claim without an attorney may feel like an economical approach, however, it may result in you leaving money on the table.
How to Handle a Workers Comp Case on Your Own in San Jose, CA
Most claims do not require the help of a workers comp attorney. When the system works as intended, you simply have to notify your employer to kickstart the process of filing a workers compensation claim. If things do not work out in your favor, you have the option to appeal a claim denial. This will require the help of a workers comp lawyer, but for reference, the step-by-step guide is detailed below.
How to File a Workers Comp Claim in San Jose
Employees injured on the job in San Jose should notify a supervisor immediately to ensure receiving benefits, including medical care. If the injury or illness developed gradually, it should be reported to the employer as soon as you believe it was caused by your job.
To protect your rights, file a claim form as soon as possible. Your employer must give or mail you a claim form within one working day after learning of your injury or illness. The California claim form can be downloaded online. Workers also can contact the Department of Industrial Relations’ Information and Assistance Unit online or by calling 1-800-736-7401.
Once you have the claim form, fill out the “employee” section, sign and date it, and send it to your employer right away. Always keep a copy. The claim form should be returned to the employer in person or by mail. If you mail the claim form, use certified mail (“return receipt requested”) so there is a record of the date it was mailed and received.
Failure to return the completed form to your employer puts you at risk of losing your right to benefits. If your employer does not give you a claim form, contact an information and assistance officer.
Employers Responsibility in San Jose Workers Comp Claims
Employers are responsible for completing the “employer” section of a claims form and forwarding the completed claim form to the insurance company. Employees should receive a copy of the completed claim form from their employer; if you don’t, request a copy and keep it for your records.
Deadlines for San Jose Workers Comp Claims
There are multiple deadlines for all parties a San Jose workers comp case and following them is essential to make sure your claim is processed efficiently.
The most important deadline for injured workers is reporting an injury or illness within 30 days of when you believe it incurred on the job. For most workplace maladies, determining when the injury occurred is simple enough, but repetitive-stress injuries or occupational diseases that occur gradually, can make that determination complicated.
For those cases, the timeline for reporting and filing your workers comp claim starts when the following happen:
- You first missed work or saw a doctor for the injury or illness
- You knew or should’ve known that it was caused by your work, generally because the doctor explained that to you.
Once your injury is reported and your completed claim form submitted to the insurance company, your employer must authorize medical treatment for you within one day, to a maximum of $10,000, while your claim is investigated. If that authorization is not provided, you should immediately contact California’s Information and Assistance Unit for help.
When the claim is submitted, the insurer has 14 days in which to mail you a letter with the status of your claim. Contact the insurer if you don’t receive a letter within 14 days.
If your employer does not deny your claim within 90 days, you can presume that your injury is covered. If the injury or illness forces you to miss work, you should begin receiving temporary disability benefits within 14 days after the insurer learns about the injury and your temporary disability. If the insurer doesn’t start the payments by then or respond to the claim by denying it or asking for more information, it will be required to pay a 10% late penalty on the disability payments.
How to Appeal a Claim Denial in San Jose
If your workers comp claim is denied, you can file an appeal with the state Division of Workers Compensation Appeals Board using this form. After completing the form, you must file it at the San Jose DWC office. You must serve the appeal to all other parties.Phone: (408) 277-1246
100 Paseo de San Antonio, Suite 241
San Jose, CA 95113-1402
The DWC office will send you a notice confirming that it has been filed. The notice will include your assigned case number, which will begin with the letters “ADJ” followed by a sequence of numbers. Use the assigned case number on all documents and correspondence.
Next, you must file a Declaration of Readiness to Proceed to request a hearing before a workers compensation administrative law judge. Your case will be scheduled for a hearing called a mandatory settlement conference (MSC). At the hearing, workers will want an experienced workers comp attorney in their corner.
The judge will discuss the case with you and your claims administrator and try to assist the both of you in reaching a settlement. If your case is not settled at the MSC, you will need to prepare documents that outline the dispute, identify the items each party will present at trial and the names of the witnesses that each party will ask to testify.
The trial will be held before another judge, and you will be required to attend. The judge will issue a written decision after the trial and send it to you by mail, usually 30-90 days after the trial. If either you or the claims adjustor disagrees with the judge’s decision, a Petition for Reconsideration can be filed.
If there is a disagreement between you and your claims administrator over the diagnosis of your injury by your treating physician or treatment plan, you most likely will need to request a qualified medical examiner (QME) to review your case and issue a medical-legal opinion. These are doctors that meet additional educational and licensing requirements
If the worker is represented by an attorney, the attorney may try to convince the claims administrator to agree to a doctor to review the case, known as an agreed medical examiner (AME).
“The panel QME process is very detrimental because it slows things down terribly,” he said.
What to Do If Your Employer Does Not Have Workers Comp Insurance
It is illegal for an employer to run a business in San Jose without carrying workers compensation insurance. Those that fail to do so are subject to steep fines, having their business shut down, criminal charges, and even jail time for the employer.
If you believe your employer is not insured, contact your local Department of Industrial Relations Division of Labor Standards Enforcement (DLSE) office and make a complaint. Go to www.dir.ca.gov/dlse to find a local office.
About The Author
Bill Fay has touched a lot of bases in his 45-year career. He started as a sports writer, gaining national attention for work on college and professional sports. He had regular roles as an analyst on radio and television and later became a speech writer for a government agency. His most recent work is as an internet content marketing specialist. Bill can be reached at firstname.lastname@example.org.
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