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Frequently Asked Questions:
Workers' Compensation ( The following Questions and Answers were provided by the law firm of Goldschmid, Silver & Spindell )
Weingarten Rights
Others
WHAT IS AN INDUSTRIAL INJURY?
1. SINGLE ACCIDENT. Dropping an objected on an employee's foot,cutting a finger, or lifting a heavy object.
2. WORK ACTIVITY EXTENDING OVER A PERIOD OF TIME. Lifting weights and eventually notices pain in the back.
3. STRESS-RELATED ILLNESSES. If work stress aggravates or causes an illness such heart attacks, nervous breakdowns, and high blood pressure it can be related to work stress. If work stress contributes to such an illness, an employee may be entitled to workers' compensation even though the actual attack did not happen at work.
In order for stress to cause a psychiatric injury, it must be based upon the actual events of employment, work-related events must be the predominant cause of the injury, and it cannot be the result of a lawful, good-faith, nondiscriminatory personnel action.
4. DISEASE AND ILLNESS that are caused by, contributed to, aggravated by the employment. For example, exposure to dust, fumes, and chemicals causes an employee to develop lung disease.
5. AN INCIDENT WHICH AGGRAVATES A PRE-EXISTING INJURY CONDITION. Prior back problems or congenital defects employee aggravates or injures his back while lifting on job.
6. An employee may be entitled to workers' compensation benefits even though the injury did not occur while he was actually working. EXAMPLE: An employee injured in the company parking lot on his way to or from work may be considered to have sustained an injury on the job; also lunch hour and company promoted activities.
AN EMPLOYEE IS ENTITLED TO WORKERS' COMPENSATION BENEFITS FOR ANY WORK-CONNECTED INJURY OR ILLNESS REGARDLESS OF WHO WAS AT FAULT.
The Workers' Compensation Appeals Board and the Courts of the State of California are continuously extending the types of accidents and illnesses which are covered by the Workers' Compensation Act.
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WHAT TO DO IN CASE OF AN INJURY?
• REPORT THE ACCIDENT. Failure or delay in reporting the injury to the employer may result in a denial of workers' compensation benefits, and failure to report the injury and receive compensation benefits reduce the amount of time that an injured employee has to file his claim through the Appeals Board to one year from the date of his injury. He may then be denied benefits altogether.
- IF THE EMPLOYER IS NOT AWARE OF INJURY, THEY ARE NOT OBLIGATED TO PROVIDE MEDICAL CARE. The injured employee should always report an accident to his union steward, in addition to the employer, in order to obtain proper advice.
- An employer, upon receiving notice or knowledge of an injury, must promptly provide the injured employee with a Notice of Employee's Workers' Compensation Rights. This is also called a Notice of Claim form or simply a claim form. Within 24 hours, the employer must provide an "Employee's Claim for Workers' Compensation Benefits" form. A copy signed by the employer must be given to the employee.
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Getting Treatment
MEDICAL EXPENSE. Under the provisions of the Workers' Compensation Act of the State of California, an injured employee can see his own doctor at the employer's expense* under the following circumstances:
As of January 1, 2004, the employer is only responsible to pay up to the amount indicated in the Medical Treatment Fee Schedule and only for medical treatment that is within the current medical treatment guidelines. These guidelines change from time to time, but there always are guidelines in effect
- Starting with the first day of the injury, if the employee registers the name of his doctor with the employer before the date of injury. (The pre-designated doctor must be the employee's regular physician/surgeon and the employee's primary care physician who has previously directed the medical treatment and retains the employee's records. Finally, the physician must agree to be pre-designated.
- After 30 days following the injury. However, as of January 1, 2005, if the employer or insurance carrier has contracted with a medical treatment network approved by the Workers' Compensation Appeals Board, the employer can require the injured worker to receive all care after 30days at that network. The network must have physicians in all medical specialties that pertain to the injury/ injuries being alleged, and the geographic location of the network must be within 25 miles of the injured worker's residence. Note that the injured worker does have the right to select a physician within the designated network.
- With the employer's permission.
- If the employee has requested medical care and it is denied.
- In a true emergency.
- With the filing of a claim form and a demand for medical treatment, starting with the date of injury, the employer is required to provide medical treatment to the injured worker. This treatment shall continue until such time as the employer has either denied the injury, accepted the injury, or paid a total of $10,000 for medical care.
At all other times, the employer can control medical treatment.
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MEDICAL UTILIZATION REVIEW
All requests for authorization of medical treatment can be disputed by the employer. In such a situation, the employer has 14 days from the date of the treatment request to submit the request to a Utilization Review Committee to make a determination about whether to authorize, modify, or deny the request.
If the UR Committee denies the request, then the injured worker and the employer must either go to an Agreed Medical Examiner (AME) on the issue of the treatment requested or to a Qualified Medical Examiner (QME).
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MEDICAL EVALUATION
After January 1, 2005, injured workers will no longer have the right to select their own medical experts. All issues in dispute, whether it is the issue of injury at work, the need for medical treatment, temporary disability, permanent disability, vocational rehabilitation, and/or future medical treatment, shall proceed through the following process: The employer and the injured worker shall select an AME to resolve the dispute or the matter will be submitted to the Administrative Director of the Division of Industrial Accidents to select a three-doctor panel submitted to both the employer and the injured worker. Either side shall have the right to strike one of the three doctors, and the remaining doctor is the one who will resolve the dispute.
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What Are My Rights to Representation (Weingarten Rights)?
Your right to representation (Weingarten Rights)
If management requests a meeting with you and you believe it may result in discipline, know your rights. You do not have to go it alone, you have a right to union representation at that meeting.
Called "Weingarten Rights," they give employees the right to representation but only if they ask for it.
After the request the employer must choose one of three options
- Grant the request and delay the questioning until a union representative can be present. At which time the employee should be given reasonable time to consult with their union representative; or
- Deny the request and end the interview immediately; or
- Give the employee a choice of
- Having the interview without representation or
- Ending the interview
If the employer denies the request for Union representation and continues to ask questions, it is committing an Unfair Labor Practice. The employee has the right not to answer. The Employer may not discipline employee for such refusal.
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What is an Unfair Practice charge, according to PERB?
When filed by a union against an employer, unfair practice charges usually involve one of the following arguments.
- "Discrimination" against employees for having engaged in conduct protected by the Meyers-Milius-Brown Act (MMBA). This law legalized unions and collective bargaining in California
- "Interference" with rights protected by the MMBA
- Unilateral change in a topics within the scope of bargaining (wages, hours and other terms and conditions of employment) without giving the union an opportunity to bargain
- Failure to meet and confer in good faith;
- Failure to provide information necessary to the union to perform its collective bargaining obligations
Contact your union representative if you think this applies to your circumstance
The Public Employment Relations Board (PERB) is a quasi-judicial administrative agency charged with administering the collective bargaining statutes covering employees of California's public schools, colleges, and universities, employees of the State of California, employees of California local public agencies (cities, counties and special districts), trial court employees and supervisory employees of the Los Angeles County Metropolitan Transportation Authority.
Effective August 16, 2004
PERB jurisdiction expanded to include Trial Court Employment Protection and Governance Act and Trial Court Interpreter Employment and Labor Relations Act; Board submits emergency regulation package to Office of Administrative Law
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