One worker’s compensation question we have been receiving recently at the Law Offices of Marc Francis, from injured workers is:
“I was off work for my industrial injury, then returned to light duty for a few weeks, then the manager told me there was no more light duty work because of COVID-19 problems, and she told me I should go apply for unemployment instead of workers compensation. The insurance claims adjuster told me they were not responsible to pay benefits to me ‘because of the virus.’ What should I do?”
The first thing is that injured workers who are in this situation should be sure they have filed an Employee’s Claim for Workers Compensation Benefits (Form DWC-1) with the employer immediately if they have not already done so. The employer must offer the injured worker a claim form as soon as the worker reports the work injury. There are very important time deadlines that apply that can prevent recovery of benefits if the claim form is not filed on time. These time deadlines can be quite short but they can be extended depending upon the fact of your case. That’s one reason injured workers should immediately consult with a Santa Rosa worker’s compensation lawyer. Filing the claim form with the employer protects the injured worker’s right to claim medical treatment and disability benefits for the work injury.
Secondly, it’s important to discuss the specific facts of the injured worker’s case with a workers compensation attorney to determine whether a weekly disability benefit check should be paid by the worker’s compensation insurance carrier, or whether the correct source of funds is unemployment through the State of California Employment Development Department. Like so many aspects of the COVID-19 crisis, this presents new issues for injured workers. Some worker’s compensation insurance carriers and employers are taking the position that if the employer’s business is shut down or on limited operation because of state or local restrictions then the injured worker should apply for unemployment. Obviously they would prefer that the state pay benefits in place of the insurance carrier, but this is incorrect in many situations.
In California, worker’s compensation law has long been the rule that if an employer does not provide light duty or modified work within the work restrictions imposed by the injured worker’s doctor then the worker’s compensation insurance carrier must pay weekly workers compensation benefits. At the Law Offices of Marc Francis, our position in these cases is that this rule still applies regardless of whether the reason for the unavailability of light duty or modified work is COVID-19 virus business closures or other reasons that result in a lack of available work, unrelated to the virus.
On the other hand, if the injured worker had returned to work after a work injury and was performing their regular full-duty job without restrictions and the employer has a reduction in available work that results in layoff or furlough, the correct remedy may be unemployment benefits.
Of course, every case is unique and the facts of your case should be discussed with an attorney as soon as possible in order to avoid loss of your rights to benefits.
Call the Law Offices of Marc Francis, premier workers compensation attorneys in Santa Rosa, for a free consultation today at (707) 664-9675. For years, Marc Francis has been helping workers retain their rights in Santa Rosa and the greater Sonoma, Marin, Napa, and Mendocino County areas.