Law Offices of Michael G. Dias 
Law Offices of Michael G. Dias 
Labor, Workers' Compensation, Social Security Disability & Personal Injury Law 

1372 A Street, Hayward, California 94541
Tel.: 510-886-4348
Fax: 510-886-0462
Serving Northern California since 1978
Michael G. Dias, Esq.
Thurman R. Martin, Jr., H.R.

Injured Worker
  • Introduction To Workers Compensation Law 
  • Basic Features of Workers Compensation 

  • a. The Compensable Injury Requirement  
    b. Fault Is Irrelevant With Workers Comp  
    c. Employee vs. Independent Contractor  
    d. Workers Compensation Temporary Total Disability Comp  
    e. Permanent Disability Compensation  
    f. Death Benefits Compensation  
    g. Medical Benefits  
    h. Statutory Immunity - Third Party Claims  
  • Covered Injuries vs. Occupational Diseases 
  • Types of Workers Comp Disability Compensation 
  • Summary 
  • Return to Homepage Click here to ask us to represent you or to ask us a question. 


    I.   Introduction to Workers Compensation Law:

            Workers Compensation is a no-fault system of social legislation, first instituted in the United States shortly after the turn of the century,  in response to serious societal problems caused by a dramatic rise in the number of people injured in industrial settings. Prior to the enactment of workers comp laws (called workmens compensation in earlier days) the only means for an injured worker to recover any compensation to pay for his/her medical expenses and loss of employment income, was to hire a lawyer and bring a law suit in Civil Court accusing the employer or some other party of negligence and seeking just compensation. The Civil Courts were bogged down with a multitude of such law suits, and even if the worker's lawyer was able to establish negligence on the part of the employer or another party, which was often not the case, the road to recovery was drawn out and expensive, and a worker might well lose his/her home, health and family waiting for relief. Supporting a large number of indigent, injured workers was a drain upon society. Lawyers in state legislatures across the United States began to propose the adoption of workers comp laws designed to withdraw law suits against employers from the Civil Court system, and to provide some measure of swift compensation to the injured worker, regardless of fault. Thus, it is often said that workers' comp laws were a very early instance of no- fault legislation. Each state enacts its own workmans comp law, and there is no Federal control over individual states' workers comp laws. In general, each states' workers' comp law provides compensation consisting of disability compensation and medical care for individuals injured in the course of job connected activities.  Workers comp laws vary from state to state, so it is important to consult with an experienced workers comp attorney in the state of the workers injury, but there are many features that are fairly common to a typical workers comp statute.

    II.    Basic Features of Workers Comp

           The typical Workers Compensation statute has the following features:

      A. The Compensable Injury Requirement - A worker is automatically entitled to certain compensation whenever he or she suffers from an accidental personal injury (or in some states occupational disease) arising out of and in the course or scope of employment. There are differences among the states as to the exact language employed to qualify the injured worker for workers comp benefits, with some states having peculiar meanings to some of the same wording. The word "accident" is interpreted differently among the comp laws of states. Not all states even have that word in their statutes. The meanings of the phrases "arising out of" and "in the course" or "scope" of employment are also different between the states, thereby giving new meaning to the cautionary instruction that the injured worker should always seek an experienced workers compensation attorney in these cases.
      "Arising out of " - The injury was caused by a risk to which the worker was subjected by his or her employment. 

      "In the course of " - This is a term of art involving consideration of the time, place and circumstances of the accident in relation to the employment. Thousands of state court decisions can be found discussing such issues as going to and from work, walking into the plant from the parking lot, coffee breaks, lunch breaks, trips between employment locations, company sponsored picnics or sporting events, etc. 

      B. Fault Is Irrelevant - Fault on the part of the employer and/or the worker is largely immaterial, although a body of cases has arisen over such issues as horseplay, intoxication, and willful disobedience to the instructions of the employer.

      C. Employee vs. Independent Contractor - Coverage is limited to those having the status of an employee, as opposed to an independent contractor. Again, a large body of cases has arisen over the distinction between an employee and an independent contractor, and this distinction is in many cases, hazy, at best. Due to extremely favorable tax considerations (no social security tax, no withholding taxes, no unemployment tax) for labeling a worker as an independent contractor, not to mention the savings on workers comp insurance premiums, many employers seek to call their workers independent contractors. However, workman's comp laws generally permit the attorney for the injured worker to challenge whether the status of the employee was that of employee, rather than independent contractor, and an adjudicatory officer in a workers comp claim may overrule the employer's characterization of the worker as an independent contractor. The employers failure to deduct taxes from the workers paycheck and even a written contract calling the employee an independent contractor are not determinative. The attorney representing the injured worker may be able to demonstrate that despite a written agreement, the worker was, in reality, an employee and not an independent contractor, thereby qualifying the worker for workman's comp benefits.

      D. Workers Compensation Temporary Total Disability Comp - Lost income compensation to the worker during the period the worker is out of work under active medical care (called temporary total disability ) of anywhere from one-half to two-thirds of the worker's average weekly wage . Insurance carriers seeking to terminate a workers' temporary total disability compensation often seek what is called an "independent medical examination," but the term "independent" is more often than not misplaced, and a more accurate term would be defense medical evaluation.

      E. Permanent impairment or permanent disability compensation - Most states provide some form of workmans compensation to the injured worker for certain categories of permanent injury. These are not to be mistaken for general damages for pain and suffering such as are awarded in civil damage claims brought by attorneys within the court system. There is a great deal of variance among the workmans comp laws of the various states as to the type of injuries which qualify for permanent impairment or permanent disability compensation, as well as the amounts of money allowed for permanent injuries. An attorney experienced in handling workers comp claims in a particular jurisdiction must be consulted to accurately describe the compensation structure of that state and to estimate the "value" of a particular workers' comp claim.

      F. Death benefits compensation - Most states provide some form of compensation for survivors of workers who are killed as a result of job related accidents. Most often the compensation is an effort to replace the lost stream of income to the decedent's surviving dependents.. However, there is great variability among the comp laws of the various states on who can qualify as a survivor entitled to be compensated for the death of the worker and how much the survivors are entitled to receive. It is important to note that unlike a civil damage claim in the Court system, in workers' compensation the focus is not upon grief, mental pain and suffering, or loss of society and companionship. The focus of the lawyers in workers comp claims is upon the loss of income being produced by the deceased worker for the surviving beneficiaries.

      G. Hospital, medical and vocational rehabilitation expenses - Generally, all reasonable and necessary compensation for medical care required by the injured worker is covered, including prescriptions, medical appliances, etc.. Needless to say, the medical condition requiring treatment must be causally related to the injury. Some states regulate the amounts the medical care providers may charge for treatment, and make charges in excess of the permitted amounts unenforceable by the medical care provider. States differ on the right of the injured worker to choose the person(s) who will provide his/her medical care, with some states leaving this choice entirely up to the claimant and other states heavily regulating it by requiring that physicians be chosen from panels or selected by the employer.

      H. "Statutory Immunity" of the Employer - Third Party Suits - The worker, in exchange for the certainty of receipt of workman's compensation regardless of fault, under most states' laws is deemed to have given up his or her common law right to sue the employer for negligence and damages for any injury covered by the statute. This is called the "statutory immunity" of employers. It was one of the historic trade-offs legislatures made to justify requiring employers to pay workers comp regardless of whether they were at fault. Most states retain the right of the worker's lawyer to sue an outsider (a person or company other than the employer) for negligence or any other tort theory of liability, such as product liability or medical malpractice (associated with the rendering of medical care for the workers comp injury). These are called third party suits. There are widespread differences among the states as to who constitutes a third-party, what portion of the recovery from the third party suit the worker may keep and what portion of the compensation for damages in the third party suit must be repaid to the employer and its workers comp insurance carrier. Workers comp attorneys familiar with the law in a particular jurisdiction should be consulted to ascertain the worker's rights with respect to third party suits.
      I. Administration of workers compensation claims is typically in the hands of administrative agencies or commissions. Rules of procedure and evidence are generally relaxed in front of these agencies. A Commissioner or administrative law judge presides over workers compensation hearings and makes rulings on objections and procedural issues raised by the lawyers, similar to a judge in a law court.
      J. Insurance -- In most states the employer must secure insurance coverage against workers comp claims through the purchase of private insurance or state-fund insurance. Many states have a procedure for authorizing larger, more secure employers to be their own self-insurer.

    III.   Distinction Between Covered Workers Comp Injuries and Occupational Diseases
    A. Covered Injury - In many states an injury must be an event taking place within a relatively short time frame, producing physical harm to the injured worker. Some states require a form of trauma. Some states with laws containing the term "accidental injury" will disallow claims for lifting or strain injuries not produced by a traumatic event such as slipping, tripping and falling, unless the amount of lifting required of the employee can be shown to be unusual for the particular employment. Maryland had just such a peculiar, court-created definition of the term "accident," until it was overturned by a well reasoned decision of the Maryland high court in June, 2003. Other states are not as strict, and will allow almost any claim for an injury which is causally related to work activity. An injured worker should never assume his/her injury is clear cut or covered and should always seek an experienced attorney as soon as possible after the injury. 

    B. Occupational Disease - The common element in most occupational disease statutes is a disease or condition which is characteristic of the trade or occupation of the worker, and is shown by medical evidence to be causally related to the trade.  In other words, diseases which might be contracted in other occupations or in everyday life apart from employment are usually not compensable. 

    IV.   Types of Workers Comp Disability Compensation
    A.   Temporary Total Disability - This benefit is payable when the injured worker is unable to work during a period when he/she is under active medical care and has not yet reached what is called "maximum medical improvement". By virtue of simple common sense, once "maximum medical improvement" has been reached the condition can no longer be categorized as temporary. Disputes often arise both on the issue of whether the injured worker is, in fact, disabled from work and on the issue of whether maximum medical recovery has been reached. States differ on how they treat situations where the worker is released to light duty work, but the employer will not offer light duty, or those situations where the employer declines to permit the injured worker to return to his job, even after a full duty release. In most states, compensation is paid at two-thirds of the employee's average weekly wage, not to exceed statutory weekly maximums above which no worker is entitled to compensation. It is not unusual for a worker's temporary total disability weekly benefit to be capped by these statutory compensation limits. 
    B.   Temporary Partial Disability - A worker may be eligible for temporary partial disability compensation when he or she is able to do some work but is still recuperating from the effects of the injury, and is, thus, temporarily limited in the amount or type of work which can be performed compared to the pre-injury work. 

    C.   Permanent Partial Disability - Compensation is awarded for certain types of permanent conditions which do not cause the worker to be totally unable to work. As previously indicated, there is a wide variety of different ways the various states treat permanent injuries, and it is necessary to consult lawyers in your state experienced in handling workers compensation claims to understand your states' rate structure for permanent injuries. 

    D.   Permanent Total Disability - In order to receive this type of compensation it must generally be  shown that the employee is unable to return to work in any capacity, and that this is a permanent problem. On the other hand, there are rulings in many states to the effect that a worker who can perform only occasional, sporadic or undependable work, may still be deemed to be permanently totally disabled. Frequently a states' workers comp law permits attorneys to offer evidence of a workers age, education, training and experience in seeking to prove that the worker is incapable of substantial gainful employment. 

    E.   Disfigurement/Mutilation - A states' workers comp law may permit the employee to be compensated for disfigurement or scarring, frequently in the absence of any actual impairment, and sometimes in addition to actual impairment. 

    V.   Summary:

    The Workers' Comp system in most jurisdictions is a highly complex statutory scheme with great variation, depending upon the particular jurisdiction in which a worker is injured. The system is generally designed so that anyone can afford to have a workers compensation attorney, and there is virtually no reason why any injured worker should not immediately seek an experienced lawyer. In the jurisdiction in which we practice, California, attorneys for the Law Offices of Michael G. Dias have handled hundreds of workers comp cases over a period of 25 years, and we would welcome the opportunity to provide a consultation on your workers compensation claim. If you have a workers' compensation, Social Security Disability (SSD/SSI), vetrans disability, or disability retirement claim, and have a question or would like to inquire about the possibility of having us represent you, please feel free to email us, or telephone us.

    *IMPORTANT: It is important to note that there are few instances when any two states agree on a particular statutory entitlement or on decisions interpreting those entitlements. This document is intended to provide only an overview of workers compensation in general, and it is not intended to substitute for experienced legal counsel or be relied upon in the handling of a particular case. Workers compensation is fraught with danger to the inexperienced lay person, as well as to the inexperienced attorney. It is strongly recommended that any injured worker reading this page in an effort to understand workers compensation who is not already represented by experienced legal counsel immediately seek experienced legal advice.