QUESTION:
I was hurt at work because my employer did not have the right equipment for me to do my job. The doctors gave me restrictions so now I can’t go back to work. They deemed my injury 15% permanent and stationary, so they took away my temporary disability. Now I’m stuck not making enough money and barely making it. Plus they said that I can’t do my regular duties. Do I have a case against my employer to hold them responsible for my injury?
ANSWER:
Your employer may be held liable under the Worker’s Compensation Rule. The law provides that, to wit: except for those actions at law expressly permitted by statute or case law (e.g., injury resulting from removal or non-installation of power press guard, ¶ 2:2226 ff.), injury arising from an employer’s violation of safety standards is compensable exclusively within the workers’ comp system. “It is an expected part of the compensation bargain that industrial injury will result from an employer’s violation of health and safety, environmental and similar regulations.” This is so even where the violation arguably amounts to criminal negligence or results in the workers’ death. [Fermino v. Fedco, Inc. (1994) 7 C4th 701, 723, 30 CR2d 18, 30, fn. 7 (dictum); Gunnell v. Metrocolor Laboratories, Inc. (2001) 92 CA4th 710, 726, 112 CR2d 195, 206–207;Vuillemainroy v. American Rock & Asphalt, Inc. (1999) 70 CA4th 1280, 1285–1286, 83 CR2d 269,272–273][[2:2302]. In cases wherein the defendant raises the issue of “inability” to return to work in the near future, expert medical testimony must be obtained as it is the is the best way to refute this contention, and also, treating physicians should be ready to testify to the prognosis on plaintiff’s condition, how plaintiff has progressed toward recovery up to time of trial, the probabilities of “setback” and susceptibility to future aggravation of the condition [3:92].
The “disability” contemplated by § 340.2 consists of permanent termination of plaintiff’s capacity to perform the tasks involved in his or her regular occupation. The fact plaintiff may have felt ill from asbestos exposure long before such “disability” is irrelevant to the date of accrual of the cause of action. [CCP § 340.2(b); Hamilton v. Asbestos Corp., Ltd., supra, 2 C4th at 1138–1139, 95 CR2d at 708; Puckett v. Johns–ManvilleCorp. (1985) 169 CA3d 1010, 1017, 215 CR 726, 731] [5:179]. I would suggest that you seek personal assistance from a lawyer in order to assist you in filing your claim.