Legal Question in Workers Comp in California
Cause of action: employer? company physician?
I am told the State of Ca does not allow litigation of employers by employees injured on the job. Can I file a suit against my employer for liability based on the fact they could not provide necessary staff to handle the work load?
And can could I have a cause of action against the company Dr. for putting me back on the floor. My initial exam on the injury incurred @ work took me off work for a week, and placed me on strong pain Rx's. That same day I was seen by the company Dr, who agreed with the 1st treating Dr, but ordered me back to work, but to keep taking the pain Rx.
I am now receiving workmens comp and being well treated medically for a ruptured disc T1, and severely bulging C7,C8. I was injured in Oct of '99.
Surgery is pending for a neck fusion.
Thank you for your input.
2 Answers from Attorneys
Re: Cause of action: employer? company physician?
Based upon the information you have provided, you cannot successfully sue your employer. Your sole recourse, regarding your employer, is through the Workers' Compensation system.
If the doctor's care of you fell "...below the standard..." you could sue the doctor for malpractice in a 3rd party lawsuit seperate from your Workers' Comp claim. However, Workers' Comp benefits would still apply to any complications caused by the doctor's care of you.
You have many issues presented here that are of interest to my wife (who is reading over my shoulder). Her practice is exclusivly Workers' Comp. Please call her (714-835-4444) to discuss your matter if you are not represented for your Workers' Comp case. Should you choose to speak to her she will also review with me if there is a possibility of a 3rd Party Case or a malpractice case. Consultation and case evaluation are provided FREE.
John Bisnar, Senior Partner
Bisnar & Chase, LLP
Personal Injury Attorneys & Counselors at Law
800-956-0123 www.serious-injury-law.com
Re: Cause of action: employer? company physician?
Though you are limited to action against the employer in most instances to a workers compensation claim there are avenues for you to recover for "serious and willful" behavior by the employer which resulted in your injury. This is a seperate petition filed with the WCAB which if a finding is made of serious and willful it can cause a substantial increase in overall liability and thus benefits for your resultant disability from the employer.
As to the doctor, treatment etc that you receive from a doctor as a result of your workers compensation injury if below the accepted standard of practice for the medical community would be considered medical malpractice. If a doctor commits medical malpractice you have the right, even though it was treatment for a work injury, to file a civil medical malpractice claim against the doctor.
And though if medical malpractice occurs in work injury treatment the carrier is liable for the increase in disability created this does not mean that you are foreclosed from seeking damages individually against the doctor for his or her medical malpractice.
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