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I was injured & filed for work comp. I was told I was an independent contractor, however I was actually an employee

Covina, CA |

I was trained, told how to conduct the job, what time to appear, what to wear, paid by the hour, and even made to wear a name tag with the employer's name on it. I filed a Work Comp application for adjudication of claim. So far, they have still denied coverage. They have just filed a Notice of Status Conference asking all unpaid lien claimants to appear. I am out a lot of money because I had to pay for my own medical treatment before filing the ADJ claim. Some of the people who could file lien claims have not done so - one company is trying to collect from me directly. I can't find an attorney to take my case and help me out. I am still within the 10 days to file an objection. Can I also ask for a continuance? How can I get possible lien claimants there?

Attorney Answers 7


  1. Best answer

    You should consult with both a Worker's Compensation Attorney and a Personal Injury Attorney. You can find them using Google or AVVO FInd A Lawyer function.

    Worker's Compensation is supposed to be bargain protecting employers from employee claims for torts that are not intentional. Thus, you may be able to assert a tort claim against your former employer for negligence. Most employers like to assert Worker's Compensation as a defense, unless they do not have Worker's Compensation insurance.

    Finally, your description of your work sounds like an employee, you can also file a complaint with the Division of Labor Standards Enforcement for Misclassification As An Independent Contractor Instead of An Employee. Below are links to some useful information.

    http://www.dir.ca.gov/dlse/faq_independentcontractor.htm

    https://www.dir.ca.gov/dlse/MisclassificationOfWorkers.htm

    The Status Conference may be a time to set date for the hearing to determine your status.


  2. Have you consulted with an attorney? Independent contractor is an issue that comes up a lot in workers compensation, but does sometimes take some litigation with the insurance company.

    Based on the facts you have given, it seems you may have a good case to be an employee. Another issue is whether the employer has any insurance. If not, it is sometimes harder to find an attorney as some do not handle uninsured employer cases. I am sure that most workers compensation attorneys will at least give you a free consultation.

    As for the lien claimants, often they are not concerned until after a case settles.

    At this point, with a conference coming up, i would recommend you attempt to secure an attorney. Many attorneys on this site will give you a free consultation as well our office. I would recommend you get an attorney before the conference and have the attorney deal with any continuances. Usually a status conference does not require an objection as a Mandatory Settlement Conference would.

    Good Luck.

    Disclaimers: Making a false or fraudulent workers compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine. Each case is pursued differently based on its own merits. As such, there is no guarantee as to the outcome of any case. No attorney/client relationship will be established by contact with this AVVO communication or any messages or emails from Silberman and Lam, LLP. An attorney/client relationship will begin only when a retainer has been signed.


  3. This is more of a work comp question, so I will change the topic. I agree this is a complicated issue and there are numerous factors that should be considered. You should seek out an attorney in your area if you do not already have one.

    Disclaimers: Making a false or fraudulent workers compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine. Each case is pursued differently based on its own merits. As such, there is no guarantee as to the outcome of any case. No attorney/client relationship will be established by contact with this AVVO answer or any messages or emails from Silberman and Lam, LLP. Attorney/client relationship will begin only when a retainer has been signed.


  4. Lein claimants are allowed to show up at the conference but remind them and the judge the cannot participate until your case is settled. You do seem to have a strong case for employment status (rather than independent contractor). This is always a grey area because there are a lot of factors that play in to it, but you have the "presumption of employment" in your favor along with the facts you gave.

    To answer your question, the objection must be filed with 15 days from the date of service of the DOR. 10 days plus mailing. However there is good news. First, this is only a status conference. This is important because it's just a time to discuss the case and you are not there to set the case for trial. No decisions against you will be made by the judge.

    Also, I would bet that if you really can't find an attorney to take your case, the Judge will make some recommendations. Most Judges are sympathetic to injured workers.

    I would recommend you continue your pursuit to find an attorney. You can even call the State Bar and get a list


  5. Call your local Bar Association for a referral to a workers' comp lawyer. Many claims begin as "denied" for one reason or another, only to be accepted further down the line.

    Whether you are employee may ultimately have to be determined through trial at the Board. From the facts that you have posted it sounds as though you may indeed receive a favorable determination. In any event the starting point is getting legal representation.


  6. You don't say what your job was. In Montana, unless you were operating an independent business and were paid by the job, the worker's compensation court would probably rule that you were an "employee" and your "employer" should have carried insurance for you and other similarly situated workers. You definitely need to find an attorney to represent you or at least tell you if you can't win and why?


  7. Employee vs Independent Contractor Status is determined on a case by case basis by the facts. It sounds like you were an employee. You need to consult with an attorney or visit the Information and Assistance (I&A) officer at your local WC Board. Filing for a Status Conference was a good idea because it will bring the matter before the Judge who will likely refer you to the I&A office for help. They will have list of local attorneys who do WC that you can contact for further assistance. I would not ask for a continuance of the hearing as the employer or their insurance carrier will need to send someone to the conference to answer to the judge as to their position on the case. Keep their feet to fire. Get an attorney.

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