Thank you for this video. I wish I knew about this when I got injured. Sadly, the time frame does not allow me to file for this petition. That being said, I have been told by so many lawyers that there is nothing can be done or told me about this benefit. In fact they told me straight up that there is nothing that you can do to your employer for negligence etc. From what I gained from this video, this is the negligence part.
For a S&W Petition to prevail the injured worker really has to prove even more than negligence. Negligence generally refers to what a reasonable employer would have done, and so if you say "Another employer does such and such to protect workers from injury, and my employer doesn't do that" that's along the lines of negligence. But negligence in workers' comp just doesn't matter. For S&W, the worker has to show that the employer actually knew of the condition (instead of should have known), and knew that serious injury could result, and then chose to do nothing. It's a high standard for a S&W which makes it tough for the injured worker to prove.
@@myworkerscompguide That makes sense, but the mechanic, the way the report system works, the way that we have to check the vehicles etc. would accost them easily for this. Not to mention that the mechanic does agrees that the vehicles were bad and deserved to be at a pick n pull and even the dealership doesn't want to fix them. Only due to an odd extended warranty that is questionable at best and or giving them jobs as a kick back for using the brand as a corporation. But thank you, I get what you mean. Near to impossible to prove unless you had inside information etc. Not very easy to prove intent unless they admit it in the dumbest way, had meeting about it etc. EG movie Thank you for smoking. Think that was what the movie was called.
@@kindredmalise6633 Exactly. Many of these disputes don't necessarily boil down to what everyone knows in their gut, but rather what can be proven based on evidence introduced.
Great video . This is good to know . I wish I knew about this benefit. I am surprised my attorney that represented me in 2002 didn’t mention this benefit to me back then . I just received a regular wc settlement. I believe I would have met these guidelines.
It's tough to say. I will say that a solid S&W case is relatively rare in my experience. A lot of cases seem like a S&W might be present, but when you dig into them the facts often don't provide enough to prove up the case.
Glad to see another video it’s been a while I have a qme re-evaluation in July and lost my job I’m appllying for edd would it be difficult for him to sign the edd paperwork if I’m going to get placed mmi soon ? Or will workers comp continue paying me TPD thank you
Generally QME's won't fill out EDD paperwork. That generally is done by the treating doctor who is addressing ability to do light duty or full duty work. If workers' comp is paying temporary partial disability that will generally continue until either the PTP changes the restrictions or declares MMI, or until the QME says MMI. It is important for workers who collect EDD benefits to also let the adjuster know, so that both EDD and workers' comp know what the other is paying so there is no duplication of benefits.
I am prose and was offered 20k, which I declined. I countered offered at 30k. They met me halfway at 25K, only if I sign off the (S&W). Recently, I did sign (C&R), so I can move on with my life because I am faced with multiple repos, displacement and bankruptcy. The attorney is now dragging his feet to process the walk through for approval. Can I retract my signature and proceed to trial? I say that because, something is not adding up. Weeks prior, I was being coerced and pressured to sign before I could speak with an I&A officer to get answers to questions in the comments section before I signed off on anything. A priority hearing is scheduled for July 25. I feel this is another unreasonable delay. What is the worst case scenario and is it possible expedite settlement check. I thank you in advance.
I would strongly recommend talking to either your local I&A Officer about your options, or talking to a local attorney. I can only answer questions as to how the system works. I cannot offer advice as to what you should or should not do. A few thoughts to keep in mind are that if a case goes to trial, the judge cannot award a C&R. A Judge can only either find industrial injury or not, or award indemnity or not, generally. But they cannot order a C&R. So if the case goes to trial, it will not resolve with a C&R. Also, if a case goes to trial, it will need to be set for a MSC (that'll take a couple of months) and then the parties will have to complete and file the PTCS and exhibits, and it'll be set for trial in a couple of months, and then once trial is concluded, the judge will have 90 days to issue a decision, and then either party can appeal that for about one month afterwards. So a trial is not a fast process. Also, it is odd that a case is set for a Priority Conference when the injured worker has no attorney. A Priority Conference is usually set for represented applicants.
@@myworkerscompguide Thank you for your prompt response. So in a nutshell they can withdraw signed settlement before walk through and go to trial without contacting me? Also, how is it possible for an insurance adjuster to deny a claim without a valid (QME) report? The adjuster denied claim August 2023 based on a bogus phycological evaluation, which that provider was referred by the workers comp doctor, I was duped. I was not interviewed by the (QME) until November 1, 2023, which it was determined an industrial injury occurred, something does not add up it makes no sense. Thank you in advance for your feed back.
@@empowered1222 Withdrawing from a settlement, whether it be applicant or defense, is generally frowned upon and contract law principles often come into play. There are different standards that apply before and after a judge approves the settlement. As to your specific situation, you would need to talk to either the I&A Officer at your local WCAB, or talk to a local attorney. As to the denied psychiatric claim, I can say that those claims are often denied and often very difficult to prove at trial, especially when there is a defense of a lawful, good faith, non-discriminatory personnel action.
You don't hear about this labor code much and the courts can struggle with it. Much of it applies to safety standards not met by the employer under CAL/OSHA. Or a previous incident was on record and the employer failed to correct it. If an employee is injured and the employer doesn't report it, does it constitute a serious and willful misconduct act? I would assume it falls under the CAL/OSHA safety guidelines and the employer will be fined for their actions. Another factor being is the employee was not under any alcohol or drugs at the time of injury. They would look at this too. Example: The employer downplays the accident, they completely ignore the employees injury, an injury report isn't filed and the employer doesn't send the employee to receive medical treatment. The employee then sees their primary doctor lets say 6 months down the line. The injury is much more serious than previously thought. Why? Because the employee kept working as the employer keeps it under radar. Is this action specified in the 4553 labor code? I would think a rare employer behavior like this is willful. It can happen though.
No OSHA violation is required for a S&W Petition. If there was an OSHA violation then that can be used as evidence to establish a S&W, and that comes from LC 4553.1. But a violation of a safety order, in and of itself, it not sufficient for a S&W. It will depend on what order was violated, was the injury was, etc.
Thank you for this video. I wish I knew about this when I got injured. Sadly, the time frame does not allow me to file for this petition. That being said, I have been told by so many lawyers that there is nothing can be done or told me about this benefit. In fact they told me straight up that there is nothing that you can do to your employer for negligence etc. From what I gained from this video, this is the negligence part.
For a S&W Petition to prevail the injured worker really has to prove even more than negligence. Negligence generally refers to what a reasonable employer would have done, and so if you say "Another employer does such and such to protect workers from injury, and my employer doesn't do that" that's along the lines of negligence. But negligence in workers' comp just doesn't matter. For S&W, the worker has to show that the employer actually knew of the condition (instead of should have known), and knew that serious injury could result, and then chose to do nothing. It's a high standard for a S&W which makes it tough for the injured worker to prove.
@@myworkerscompguide That makes sense, but the mechanic, the way the report system works, the way that we have to check the vehicles etc. would accost them easily for this.
Not to mention that the mechanic does agrees that the vehicles were bad and deserved to be at a pick n pull and even the dealership doesn't want to fix them. Only due to an odd extended warranty that is questionable at best and or giving them jobs as a kick back for using the brand as a corporation.
But thank you, I get what you mean. Near to impossible to prove unless you had inside information etc. Not very easy to prove intent unless they admit it in the dumbest way, had meeting about it etc. EG movie Thank you for smoking. Think that was what the movie was called.
@@kindredmalise6633 Exactly. Many of these disputes don't necessarily boil down to what everyone knows in their gut, but rather what can be proven based on evidence introduced.
Thank you for this video
Happy to help inform.
Great video . This is good to know . I wish I knew about this benefit. I am surprised my attorney that represented me in 2002 didn’t mention this benefit to me back then . I just received a regular wc settlement. I believe I would have met these guidelines.
It's tough to say. I will say that a solid S&W case is relatively rare in my experience. A lot of cases seem like a S&W might be present, but when you dig into them the facts often don't provide enough to prove up the case.
Glad to see another video it’s been a while I have a qme re-evaluation in July and lost my job I’m appllying for edd would it be difficult for him to sign the edd paperwork if I’m going to get placed mmi soon ? Or will workers comp continue paying me TPD thank you
Generally QME's won't fill out EDD paperwork. That generally is done by the treating doctor who is addressing ability to do light duty or full duty work. If workers' comp is paying temporary partial disability that will generally continue until either the PTP changes the restrictions or declares MMI, or until the QME says MMI. It is important for workers who collect EDD benefits to also let the adjuster know, so that both EDD and workers' comp know what the other is paying so there is no duplication of benefits.
I am prose and was offered 20k, which I declined. I countered offered at 30k. They met me halfway at 25K, only if I sign off the (S&W). Recently, I did sign (C&R), so I can move on with my life because I am faced with multiple repos, displacement and bankruptcy. The attorney is now dragging his feet to process the walk through for approval. Can I retract my signature and proceed to trial? I say that because, something is not adding up. Weeks prior, I was being coerced and pressured to sign before I could speak with an I&A officer to get answers to questions in the comments section before I signed off on anything. A priority hearing is scheduled for July 25. I feel this is another unreasonable delay. What is the worst case scenario and is it possible expedite settlement check. I thank you in advance.
I would strongly recommend talking to either your local I&A Officer about your options, or talking to a local attorney. I can only answer questions as to how the system works. I cannot offer advice as to what you should or should not do. A few thoughts to keep in mind are that if a case goes to trial, the judge cannot award a C&R. A Judge can only either find industrial injury or not, or award indemnity or not, generally. But they cannot order a C&R. So if the case goes to trial, it will not resolve with a C&R. Also, if a case goes to trial, it will need to be set for a MSC (that'll take a couple of months) and then the parties will have to complete and file the PTCS and exhibits, and it'll be set for trial in a couple of months, and then once trial is concluded, the judge will have 90 days to issue a decision, and then either party can appeal that for about one month afterwards. So a trial is not a fast process. Also, it is odd that a case is set for a Priority Conference when the injured worker has no attorney. A Priority Conference is usually set for represented applicants.
@@myworkerscompguide Thank you for your prompt response. So in a nutshell they can withdraw signed settlement before walk through and go to trial without contacting me? Also, how is it possible for an insurance adjuster to deny a claim without a valid (QME) report? The adjuster denied claim August 2023 based on a bogus phycological evaluation, which that provider was referred by the workers comp doctor, I was duped. I was not interviewed by the (QME) until November 1, 2023, which it was determined an industrial injury occurred, something does not add up it makes no sense. Thank you in advance for your feed back.
@@empowered1222 Withdrawing from a settlement, whether it be applicant or defense, is generally frowned upon and contract law principles often come into play. There are different standards that apply before and after a judge approves the settlement. As to your specific situation, you would need to talk to either the I&A Officer at your local WCAB, or talk to a local attorney. As to the denied psychiatric claim, I can say that those claims are often denied and often very difficult to prove at trial, especially when there is a defense of a lawful, good faith, non-discriminatory personnel action.
@@myworkerscompguide thank you for putting in the time to respond, I truly appreciate that. It set my mind at ease. Have a great rest of your day!
@@empowered1222 And to you. Best of luck to you in your case.
You don't hear about this labor code much and the courts can struggle with it. Much of it applies to safety standards not met by the employer under CAL/OSHA. Or a previous incident was on record and the employer failed to correct it. If an employee is injured and the employer doesn't report it, does it constitute a serious and willful misconduct act? I would assume it falls under the CAL/OSHA safety guidelines and the employer will be fined for their actions. Another factor being is the employee was not under any alcohol or drugs at the time of injury. They would look at this too.
Example: The employer downplays the accident, they completely ignore the employees injury, an injury report isn't filed and the employer doesn't send the employee to receive medical treatment. The employee then sees their primary doctor lets say 6 months down the line. The injury is much more serious than previously thought. Why? Because the employee kept working as the employer keeps it under radar. Is this action specified in the 4553 labor code? I would think a rare employer behavior like this is willful. It can happen though.
No OSHA violation is required for a S&W Petition. If there was an OSHA violation then that can be used as evidence to establish a S&W, and that comes from LC 4553.1. But a violation of a safety order, in and of itself, it not sufficient for a S&W. It will depend on what order was violated, was the injury was, etc.