Workers Comp Zone


As a lawyer representing injured workers’ I’ve met all kinds of colleagues over the years.

Some of my colleagues came to the practice after being union organizers, social workers, criminal defense attorneys, union-side labor lawyers, or court reporters. Some did comp insurance defense work, tired of it, and decided to help workers. Some, like me, stumbled upon this niche, not really planning for a career doing it.

It’s interesting to see how colleagues frame their mission as an comp attorney representing applicants.

Dirk Stemerman of the Monterey/Salinas firm of Rucka, O’Boyle, Lombardo & McKenna has written a noteworthy piece on being a workers’ comp lawyer for the Monterey County Herald. Here, in quotes, is Stemerman’s piece in its entirety:

“One hundred years ago this month, Wisconsin instituted America’s first workers’ compensation law. California followed two years later. The contract with California’s workers was created as an employer protection as workers surrendered the right to sue employers for work injuries in exchange for guaranteed benefits such as medical treatment and disability payments.”

Stemerman says “When I tell people that I am a workers’ comp lawyer, reactions vary from, “Oh God, that’s horrible” to “Oh, you actually help people.” Often, I encounter the individual ready to tell me their anecdotal story of the time they encountered an injured worker and how they just know that person was malingering.”

Stemerman notes “I help people who are injured on the job. Some are more injured, some less so. What they have in common is that they must traverse the minefield of workers’ comp.While most injured workers recover and return to work, a happy ending eludes a significant minority. Some lose their homes. Others lose their families. Often, they lose the ability to perform the only job they’ve ever known. Telling a lifelong roofer, nurse or farmworker that they’ll get a couple of hundred bucks a week doesn’t seem to put them at ease when they ask the recurrent dreaded question: What am I supposed to do now?”

Stemerman observes “Many issues employees face after suffering an industrial injury permeate into other areas of law. Questions arise concerning leaves of absence, health insurance, medical treatment, Social Security, job retraining, modified return-to-work issues, harassment against employees and, ultimately, job termination issues.
On the Job seemed like a fitting title for this column because my clients are real working people. I see many of the challenges they face on the job after an injury. I am in the proverbial trenches struggling daily against moneyed workers’ comp insurance companies. But while my loyalties may be slanted, in my job I often see where employers err, and my hope is that this column may help prevent a few potential employer blunders.”

Continuing, Stemerman says “I am reminded of a recent situation where an employer unlawfully attempted to retroactively classify an employee’s leave under the Family and Medical Leave Act. This slip-up resulted in my client receiving additional protected leave from work.”

Stemerman points out that “Under FMLA, an employee working for an employer with more than 50 employees within a 75-mile radius of the worksite may request up to 12 weeks of unpaid leave in a 12-month period for a “serious health condition” requiring “continuing treatment by a health care provider. The employee must have worked at least 1,250 hours in the 12 months immediately preceding the leave. The serious health condition can concern a parent, spouse or child.The employer must inform the employee that they are eligible for FMLA leave if an employee is using sick or vacation leave. They must inform the employee in writing that sick or vacation paid leave is being exhausted and that this leave will be counted as FMLA leave.The employer is required to hold the employee’s job and continue providing any group health benefits. It is always the employer’s responsibility to designate leave, whether paid or unpaid, as FMLA leave.”

This op-ed piece by Stemerman is a good lesson in how applicant attorneys provide a level of service that is often unappreciated by some in the system.

Some workers’ comp judges, think tanks folks, and some in labor movement officials seem to have a hard time grasping the concept that lawyers, through issue spotting and advisory functions, channel workers to a range of legal remedies and solutions to workplace problems

Stemerman’s article is a good retort to some of that skepticism.

Stay tuned.

Julius Young

Category: Understanding the CA WC system