Frequently Asked Questions Regarding Workers' Compensation

1. Do employees have the right to be treated by their own doctor when injured on the job?
An employer has the right to select the doctor, who will provide care for your employee’s work-related injuries for the first 30 days following an incident, unless the employee has predesignated his/her personal physician.  You have similar control for up to 180 days of treatment (or calendar days if you do not provide health insurance) if you provide occupational health services through a Health Care Organization (HCO) and the employee has not predesignated a personal physician.

2. Are there any types of injuries not covered by workers’ compensation?
An injury is generally not covered under workers’ compensation law if the employee:

Was intoxicated by alcohol or drugs at the time of the injury;
Intentionally inflicted the injury or committed suicide;
Was engaged in an "altercation" in which he/she was the initial physical aggressor;
Was engaged in the commission of a felonious act for which he/she has been convicted;
Was engaged in horseplay on your premises or during a period when he/she was being compensated;
Was engaged in voluntary participation in off-duty recreational, social, or athletic activity not constituting his/her work-related activities, unless those activities are a reasonable expectancy of employment; or
Was going to or coming from work, unless you exercise control over the employee's route, the employee's activities during the commute, or the employee's mode of transportation

3. Are employees covered for injuries that occur off the agency’s premises?
For purposes of workers’ compensation, an injury is deemed to be job-related when it arises out of employment activities and when it occurs in the course of employment.  This is true even if the employee was not on agency property, such as at an off-site meeting or even working at home. There may also be coverage if the employee was on an unpaid meal break if the injury occurred on the employer’s property or occurred during commuting to and from work, if you control the employee’s route of travel or the employee is allowed to engage in work activities during the commute, such as cell phone calls.

4. Can job stress be considered a work related injury?
Yes, but in order to receive workers’ compensation for stress, the employee must show that work accounts for more than 50% of all sources of stress.  An individual who has been employed for less than six months will not be compensated for work-related stress, unless the stress results form a sudden and extraordinary employment condition.  Also, lawful, non-discriminatory, good faith personnel actions (such as discipline and terminations) are not grounds for stress claims.

5. Do first aid cases need to be reported to the workers’ compensation carrier?
If an injured worker requires only first aid treatment and suffers no time lost from work beyond the date of the illness or injury, you may pay the doctor for services directly, and avoid payment by your workers’ compensation carrier.  The Doctor’s First Report form must still be filed.

6. Is aggravation of a previous injury or illness covered under workers’ compensation?
An employer may be responsible for an injury to an employee if that employee’s prior non-industrial medical condition was in any way aggravated by his/her employment, or if the injury occurs as a “compensable consequence” of an earlier industrial injury.

7. Does workers’ compensation coordinate with any company leave of absences?
Organizations subject to FMLA/CFRA should advise eligible employees that workers’ compensation leave runs concurrently with leave under FMLA/CFRA for up to 12 weeks and provide them with the applicable family medical leave notices.

8. If an employee returns on modified duty, must he or she receive their regular rate of pay?
An offer of temporary modified duty to an employee who is receiving temporary disability benefits does not have to be at his/her regular salary.  The pay rate can be appropriate to the modified job and the employee can receive partial temporary disability pay from the workers’ compensation carrier.

9. Does an employer have to continue an employee’s health benefits for the entire duration of the workers’ compensation leave?
Employers with group health plans do not have to continue health benefits for the duration of an employee’s workers’ compensation leave.  Benefits must be continued as long as you would provide them for employees on non-occupational medical leaves.  Thereafter, COBRA rights must be offered.

10. Does an employer have any workers’ compensation responsibilities regarding ergonomics?
California’s ergonomics regulations require employers whose employees report repetitive motion injuries (RMIs) to implement a program designed to minimize RMIs.  The program must include performing worksite evaluations, controlling exposures causing RMIs, and employee training.

11. How long does a job have to be held for an employee who is out with a workers’ compensation injury?
There is no specific time frame for which an employer must hold an employee’s job while he/she is out with workers’ compensation injuries.  However, workers’ compensation discrimination laws must be considered.  Employers are expressly prohibited from discharging, threatening or discriminating in any way against an employee because he/she has received an award from, has filed or even intends to file workers’ compensation claims.  Legal counsel should be consulted when considering terminating an employee with an open workers’ compensation claim.

12. Can an employee be fired while they’re on workers’ compensation?
As discussed above, it is illegal to discharge, threaten or discriminate in any way against an employee because he/she has received an award from, has filed or even intends to file workers’ compensation claims.  If found to be in violation of the law, the employer is subject to financial penalties of up to $10,000.  Further, the employer may be required to reinstate the employee and reimburse him/her for lost wages and benefits.  An employee who is on workers’ compensation may be terminated only if the termination is clearly unrelated to the workers’ compensation claim.

Additional workers’ compensation information and supplies may be obtained at:
http://www.dir.ca.gov/dwc/dwc_home_page.htm

This information is an overview of workers’ compensation and should not be construed as legal advice.  In no event will we be liable for any damages whatsoever resulting from use of this material.  We recommend, because of the potential liability of workers’ compensation, legal advice or other expert assistance is obtained.