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  1. #1
    Join Date
    Aug 2011
    Posts
    2

    Default Carpal Tunnel and Workers Comp

    Hello everyone, my first post here. ok i have been doing the same job for 10+ years now for the last 6 years i was paid cash and given a 1099 form at the end of the year, 6 months ago i got hired by another company (same industry) a few weeks ago i started feeling pain in my wrist and forearm (i had never had these sympthoms before) went to my doctor and was diagnose with carpal tunnel and said it was work related and should file a workers comp report. my question is i know wc pays 2/3 of your last year earnings since i have only been in the company for 6 months, can i include my 1099 earnings from the other employer? and also, can wc fight that,well i know they can but would they have a valid reason? thank you all!!!

  2. #2
    Join Date
    Aug 2011
    Location
    Georgia
    Posts
    800

    Default Re: Carpal Tunnel and Workers Comp

    Interesting question, but a bit complicated. I'm sure our resident "experts" in Calif. WC will be helping you soon.

    First of all, the injury you have suffered is attributable to your most immediate employment with the new employer. The claim would be filed with that employer.

    First, let me throw some legal stuff at you. The amount of control the employer has over the worker is a primary determination of whether a worker is an employee or an independent contractor. If you did work exclusively for the one employer, and reported ONLY to that employer, chances are you'd be able to burst the bubble of being an Independent Contractor and prove that you were an employee. Another element is if the employer directed you as to what and how to accomplished assigned tasks and when they were due to be complete, then you had no choice as to deciding how to get the result - you were NOT an independent contractor.

    The 1099 status doesn't necessarily make you an Independent Contractor, either for IRS regulations or for State Workers Compensation laws. This has, in the past, been challenged, even in California.

    The first thing that will determine this is what your employment relationship was with the employer. If you were performing the same work, at the same rate of pay, and for the same number of hours, and exclusively for that employer, you were not an Independent Contractor. This is commonly called a misclassification. Many employers, hoping to avoid paying withholding taxes, unemployment insurance, and providing other potentially expensive benefits, will classify some "employees" as Independent Contractors. This will often end up slapping them in the face.

    Of course, I don't think that is your question, necessarily. I believe you're asking if your Independent Contractor wages are counted for AWW in the event you need to draw benefits. It's hard to say whether California recognizes "self employment" wages as income for the purposes of calcuating the AWW. This is why I brought up the 'legal issues' above. You may have to first prove that you were an employee.

    From California Employment Law:

    California Labor Code section 3353 states, "'Independent contractor' means any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished." However, "[t]he label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced." (S.G. Borello & Sons v. D.I.R. (1998) 48 Cal.3d 341, 349).

    The Act must be liberally construed to extend benefits to persons injured in their employment. ( 3202.) One seeking to avoid liability has the burden of proving that persons whose services he has retained are independent contractors rather than employees. ( 3357, 5705, subd. (a).) Therefore, "California tests for independent contractor status must be supplemented in compensation cases by consideration of the remedial purpose of the statute, the class of persons intended to be protected, and the relative bargaining positions of the parties. (E.g., Truesdale v. Workers' Comp. Appeals Bd. (1987) 190 Cal.App.3d 608; Germann, supra, 123 Cal.App.3d at p. 784; Johnson v. Workmen's Comp. Appeals Bd. (1974) 41 Cal.App.3d 318, 322-323)."

    I know I didn't directly answer your question as to whether your "self-employment" income would be included for AWW calculations. I don't think it can UNLESS you can show exactly what your actual employment relationship was.

    Others who are more knowledgeable about California WC will surely clarify the simple question (if it's that simple).

  3. #3
    Join Date
    Oct 2006
    Posts
    9,109

    Default Re: Carpal Tunnel and Workers Comp

    a 52 week average is only one method; there are others depending on your type of employment. whether they use the going wage or try to average depends on which is the best way to replace the wages you are loosing.
    look at labor code 4453
    http://www.leginfo.ca.gov/cgi-bin/di...file=4451-4459

  4. #4
    Join Date
    Aug 2011
    Posts
    2

    Default Re: Carpal Tunnel and Workers Comp

    hi leglegl, thamk you for your quick response. i must say i was not a direct employee for the last company i would take work to my home and take it back to them i guess that make me a independent contractor, i should also point that i still do some work for them but more as part time because they don't have much work for me. as for the new employer i am a full time employee.

    @.SH thank you for the info and link it was really helpful to know there are others calculations. still a little confusing thoug will have to read it a couple more times

  5. #5
    Join Date
    Aug 2011
    Location
    Georgia
    Posts
    800

    Default Re: Carpal Tunnel and Workers Comp

    Well, the only thing that needs to be determined now is whether that income will be included for purposes of AWW. I wish I had more knowledge of Calif. law to help you sort it out.

    I wish you a lot of luck with this.

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