Construction Site Injury: The First Week

A construction injury sets several clocks running at once, and some of them belong to people other than the injured worker. In the construction site injury cases our office handles, the first week decides what paperwork exists, what the safety agency hears about, and what physical evidence is still on the site. The law puts duties on you, on your employer, on its insurer and on the treating doctor, each with its own deadline.

This guide walks through those duties in order. How a workers' compensation claim and a claim against someone other than your employer fit together is covered in our guide on workers' comp and a claim against another party; here we stay with what has to happen in the first seven days on a job site.

What has to happen, step by step?

Get medical care and tell the person in charge. Knowledge of the injury by your foreman, superintendent or another person in authority counts as notice to the employer (Labor Code 5402(a)). Do not stop there: put the notice in writing, because the statute requires written notice within 30 days (Labor Code 5400).
The employer hands you a claim form within one working day. Once it knows of an injury that causes lost time beyond your shift or needs treatment beyond first aid, the employer must give or mail you a claim form and a notice of potential eligibility for benefits within one working day (Labor Code 5401(a)). The statute defines first aid as a one-time treatment, plus a follow-up visit for observation, of minor scratches, cuts, burns or splinters.
A serious injury is reported to Cal/OSHA within hours. For a serious injury, illness or death, the employer must report to the Division of Occupational Safety and Health immediately, by phone or a method the division sets up (Labor Code 6409.1(b)). Under the regulation, immediately means as soon as practically possible and no later than 8 hours after the employer knows, or 24 hours when it can show exigent circumstances (8 CCR 342(a)).
You return the claim form. The Division of Workers' Compensation (DWC) tells workers to complete only the employee section, sign and date it, keep a copy, and return it in person or by certified mail with a return receipt. It warns that not returning the form may risk your right to benefits.
Treatment is authorized within one working day of the claim form. The employer must authorize treatment within one working day after you file the claim form and keep providing it until the claim is accepted or rejected, with liability for that period limited to $10,000 (Labor Code 5402(c)).
The employer reports to its insurer within five days. Every employer must file a report of an injury that causes lost time beyond the day of injury or needs more than first aid, with its insurer if insured, within five days after it learns of the injury (Labor Code 6409.1(a)). The doctor who treats you files a separate report of the injury (Labor Code 6409(a)).
The insurer writes to you. The DWC says the insurer generally has 14 days to send a letter about the status of your claim. If liability is not rejected within 90 days after the claim form is filed, the injury is presumed compensable (Labor Code 5402(b)).

Who must do what during the first week?

Who	What	When	Rule
You	Written notice of the injury to the employer	Right away; no later than 30 days	Labor Code 5400
Employer	Give or mail the claim form and benefits notice	Within one working day of learning of the injury	Labor Code 5401
Employer	Report a serious injury, illness or death to Cal/OSHA	Immediately: no more than 8 hours (24 with exigent circumstances)	Labor Code 6409.1(b); 8 CCR 342
Employer	Authorize medical treatment, up to $10,000 before a decision	Within one working day after the claim form is filed	Labor Code 5402(c)
Employer	Report the injury to its insurer	Within five days of learning of it	Labor Code 6409.1(a)
Treating doctor	Report the occupational injury	In the manner the DWC prescribes	Labor Code 6409(a)
Insurer	Status letter; accept or reject the claim	Generally 14 days for the letter; 90 days before the injury is presumed covered	DWC; Labor Code 5402(b)

What counts as a serious injury that Cal/OSHA must hear about?

The Labor Code defines a serious injury or illness as one that requires inpatient hospitalization for something other than observation or diagnostic testing, or one in which the worker loses a limb by amputation, loses an eye, or suffers any serious degree of permanent disfigurement (Labor Code 6302(h)). Injuries from a traffic accident on a public street or highway are left out of that definition unless the accident happened in a construction zone, which matters for flaggers and road crews.

The report has required contents when available, including the site address, the injured worker's name, where the worker was taken for treatment, and whether the accident scene or the equipment involved has been altered (8 CCR 342(c)). When a fire or police agency responds to a workplace accident with a serious injury or death, that agency must also notify the nearest Cal/OSHA office by phone (8 CCR 342(b)). An employer that fails to make the report may face a civil penalty of at least $5,000 (Labor Code 6409.1(b)).

A safety investigation that follows can be useful, but its citations do not travel freely into an injury lawsuit. Our guide on whether a Cal/OSHA citation helps an injury case explains that limit.

What should be saved from the job site that first week?

Construction sites change daily. Scaffolds come down, ladders go back on the truck, and damaged planks or harnesses are thrown away. A workers' compensation claim does not need proof of fault, but a claim against someone other than your employer does, and the Labor Code keeps that claim available: your comp claim does not affect your right to recover all damages from any person other than your employer (Labor Code 3852).

On a multi-company site, that other person may be the general contractor, the property owner, another subcontractor, or the company that rented or made the equipment. Whether a general contractor or owner can be held responsible turns on narrow rules; see when a general contractor or owner is responsible for a subcontractor's worker. For falls, our guide on falls from a scaffold, ladder or roof covers the safety orders that apply. When a saw, lift or other machine failed, read about being injured at work by a defective machine.

Write down, while memory is fresh, the name of every company on site that day, who supervised your task, who owned the equipment, and the names and phone numbers of coworkers who saw what happened. Photographs of the area and the equipment, taken by you or a coworker, can matter more than anything else from that week.

Where do workers' comp questions go in Sonoma County?

Workers' compensation disputes are decided by the state's workers' compensation system, not by the superior court. The DWC's Santa Rosa district office is at 50 D Street, Room 420, Santa Rosa, and its Information and Assistance Unit can be reached at (707) 576-2452. The office holds free injured worker workshops by Zoom at 3 p.m. on the first Friday of each month in English and the third Friday in Spanish. The DWC also runs an information line at 1-800-736-7401.

A claim against a contractor or owner, if a lawsuit is needed, goes to the superior court instead; our Sonoma County injury guide lists the local courts and agencies involved.

What changes the answer?

Your employer had no workers' comp coverage. If an employer fails to secure the payment of compensation, the injured worker may sue the employer for damages as if the workers' comp system did not apply (Labor Code 3706). In that lawsuit the injury is presumed to result from the employer's negligence, and the employer cannot defend by blaming the worker's own carelessness (Labor Code 3708).

You told a foreman but wrote nothing down. A supervisor's knowledge counts as notice (Labor Code 5402(a)), but a dated written notice removes the argument. Send one even if the employer already knows.

You are worried about your job. An employer may not fire, threaten or discriminate against a worker for filing or announcing a claim (Labor Code 132a). Our guide on being fired for filing a workers' comp claim explains the remedies and the one-year deadline.

The worker died. The employer's Cal/OSHA report applies to deaths (Labor Code 6409.1(b)), and if a reported injury later causes death, the employer must file an amended report within five days of learning of the death (Labor Code 6409.1(a)). Families should read what happens when a family member dies at work.

You were hurt in a vehicle inside a work zone. A crash in a construction zone can still be a serious injury that must be reported to Cal/OSHA (Labor Code 6302(h)).

What could this look like? An example

For example, imagine a framer employed by a subcontractor on an apartment project in Rohnert Park. A scaffold plank gives way and he falls about nine feet, breaking his wrist. He is admitted to the hospital for surgery that evening. Because inpatient hospitalization for treatment is a serious injury, his employer phones Cal/OSHA that night, within the 8-hour window.

The next morning his employer gives him a claim form. He fills in the employee section, signs it, keeps a copy and mails it by certified mail. Within one working day his employer authorizes treatment, with up to $10,000 covered while the claim is decided. That week he writes down that the scaffold belonged to the general contractor and was put up by a different subcontractor, and he gets the names of two coworkers who saw the plank split. Those notes are what later let a lawyer evaluate a claim beyond workers' comp. This example is made up to show how the rules fit together; it says nothing about any real case.

What mistakes do injured construction workers make in the first week?

Relying on a spoken report to a foreman and never giving written notice.
Holding on to the claim form instead of returning it, which the DWC warns can put benefits at risk.
Assuming the employer's call to Cal/OSHA is the same as filing a workers' comp claim. The two reports are separate.
Leaving the site without the names of the general contractor, the other subcontractors, and the equipment owner.
Letting broken equipment be discarded without a photograph or a written request to keep it.
Forgetting that a claim against another company has its own two-year lawsuit deadline.

What should I do this week?

Give your employer a short, dated written notice of the injury and keep a copy.
Ask for the claim form if you do not have it; complete the employee section and return it by certified mail.
Keep every treatment record, work note and letter from the insurer in one folder.
Write down the companies on site, your supervisor, the equipment owner, and witness names and numbers.
Photograph the area, the equipment and your injuries, or ask a coworker to do it.
Call the DWC Information and Assistance Unit in Santa Rosa with questions about the comp claim.
Read our guide to California personal injury deadlines for any claim against another company.

Frequently asked questions

My employer never gave me a claim form. What can I do?

The employer must provide one within one working day of learning of the injury (Labor Code 5401). The DWC says you can download the form from its forms page or contact its Information and Assistance Unit for help.

Who pays for treatment before the claim is accepted?

The employer must authorize treatment within one working day after the claim form is filed and continue until the claim is accepted or rejected, with its liability for that period capped at $10,000 (Labor Code 5402(c)). Providing that treatment does not by itself mean the employer accepts the claim (Labor Code 5402(d)).

Does the employer's report to Cal/OSHA start my workers' comp claim?

No. The Cal/OSHA report is a safety report that is made in addition to the employer's injury report (Labor Code 6409.1(b); 8 CCR 342(d)). Your comp claim starts with your notice and the claim form you return.

What happens if the insurer does not decide within 90 days?

If liability is not rejected within 90 days after the claim form is filed, the injury is presumed compensable, and that presumption can be rebutted only with evidence found after the 90 days (Labor Code 5402(b)).

How long do I have to sue a contractor or equipment company?

A lawsuit for personal injury generally must be filed within two years (Code of Civil Procedure 335.1). If a public agency owned the site, a written claim is generally due within six months (Government Code 911.2).

If you were hurt on a construction site and want to know whether someone other than your employer is responsible, contact Young Law Group today at (707) 343-0556 or through our contact page for a free consultation.

Hurt on a construction site: what must happen in the first week?