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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 38135
Experience:  Retired (mostly)
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if one person made a claim in WCAB about his injury during

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if one person made a claim in WCAB about his injury during the employment of the co about unloading one container.but the co did not made contract with him directly,but the person made contract with the co. refused to prove him. and witness his injury ,we wonder the co will responsible for his injury? he is not his employee. the worker compensation insurance will defend this claim for the case and claim .and cover the independent sub contract with unproved?
Hello,

The answer to your question is fairly complicated. There are serveral possibilies:

1. The worker is actually a "misclassified" employee, rather than an independent contractor, and if WCAB determines that the employer has misclassified the worker for the purposes of avoiding liability for workers compensation insurance, then the worker will receive benefits, and the WCAB will assess penalties against the employer for attempting to avoid the law.

This is a fairly typical circumstance.

2. The worker was injured as a result of the contracting company's negligence/lack of due care. If yes, then the worker can sue the contracting company for negligence and recover, despite the worker not being an employee.

This is a fairly rare circumstance.

3. The worker is a true independent contractor, the contracting company was not negligent, and therefore the company is not liable to the worker, and the worker has no legal recourse against the company.

This is about a 50/50 circumstance.

If you would like to try to self-assess whether or not the worker may actually be a misclassified employee, then see the worksheet at this link: DE 38.

Please understand that I "justanswer" questions “about” the law. I cannot be responsible if the law does not favor your unique circumstances. The best that I can do is to explain what the law "is" and what it "is not."

Hope this helps.

 

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socrateaser and 2 other California Employment Law Specialists are ready to help you
Customer: replied 5 years ago.
Thanks .if your answer 2 and 3 proved, which insurance will cover it, worker compensation insurance or general liability insurance ?
if all of your answer 1,2,3, can not proved by the worker , insurance co. the employer and lawyer or WCAB? what will happened? by law, who will responsible to prove the case first?
For #1, workers comp pays.

For #2, the employer pays out of pocket, unless the employer has general liability insurance coverage.

For #3, the worker pays, unless the worker has his/her own workers compensation or other disability insurance.

Re what happens if the worker can't prove any of the possibilities, then the worker is on his/her own -- or as the saying goes: SOL.

Hope this helps.
Customer: replied 5 years ago.
thanks for your answer. only last question, i can not understand.
if the injury worker made claim to the co.but no evident and no witness proved and provided and the co or the contract co had no any record with the injury worker like salary record, contract record and so on.
1, under this situation ,by law,who claim, who should prove it?right? or the defendant need prove that the worker is not his employee to WCAB or his lawyer or the insurance co first?
2, if both no evident and record and no fully information,Is the contract co responsible for filing the claim or reporting the case to his insurance co? if yes, but in his claim letter, only name , address, and birthday. and some medical paper . no detail . no evident and prove follow. how to report? the insurance co will accept the case?
3,if the co did not have employee before, everytime they need one or two worker finish to unload his import container for the co. they paid $70 to one worker to finish the job. Do you think this worker is employee or a independent contract? Do the co need buy worker compensation insurance by law under this situation?
4,if the worker made claim about $64000 for medical bill,but no evident and prove, no settlement between them.will both of them have to appear at the court in WCAB for final judge?
thank you
looking forward to your reply soon

I'm out for the rest of the afternoon. I will answer this evening. THanks for your understanding.
Customer: replied 5 years ago.
Thanks. We can wait .
Have a good weekend.
1, under this situation ,by law,who claim, who should prove it?right? or the defendant need prove that the worker is not his employee to WCAB or his lawyer or the insurance co first?

A: Worker must prove that the injury occurred while working for the company. And, generally, the WCAB will have to prove that the worker is an employee, and then it's up to the company to disprove WCAB's claim. A judge will resolve the dispute after considering all of the evidence.

2, if both no evident and record and no fully information,Is the contract co responsible for filing the claim or reporting the case to his insurance co? if yes, but in his claim letter, only name , address, and birthday. and some medical paper . no detail . no evident and prove follow. how to report? the insurance co will accept the case?

A: Contracting company may want to contact its insurer and discuss whether or not to correspond with the worker. Sometimes it's better to do nothing, because sometimes the worker just goes away.

3,if the co did not have employee before, everytime they need one or two worker finish to unload his import container for the co. they paid $70 to one worker to finish the job. Do you think this worker is employee or a independent contract? Do the co need buy worker compensation insurance by law under this situation?

A: Based upon your limited description, I would say that the worker is an employee and the company should have provided workers compensation insurance.

4,if the worker made claim about $64000 for medical bill,but no evident and prove, no settlement between them.will both of them have to appear at the court in WCAB for final judge?

A: Yes.

Hope this helps.

NOTICE: My goal here is to educate others about the law. I am always available to answer your follow-up questions after you click Accept – however, if you do not click Accept, the website gets paid, and I receive nothing. This is true, even if you are on a subscription plan. So please click Accept, so that I will be able to continue to provide this service for others in the future.


And, if you need to contact me again, please put my user id on the title line of your question (“To Socrateaser”), and the system will send me an alert. Thanks!

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