Medically Required Equipment

Workers’ compensation is a system established to help provide fair reparation and payment to employees who have sustained work-related injuries.  The variety of injuries meant to be covered under this system is broad, although not without some limitations.  In addition, the treatments covered by the workers’ compensation system range from physical therapy to acupuncture to prescription medication.  The type of treatment that is covered will depend heavily on what is prescribed by the employee’s treatment physician.  In some cases, a physician may determine an employee’s injury requires medical equipment to treat.

There are important differences between medical equipment and medical supplies.  The workers’ compensation system has borrowed the definition of “durable medical equipment” from the Medicare system.  Durable medical equipment means medical equipment that is reusable, and necessary for treatment of the employee in his or her home.  Note that this means certain items such as latex gloves or hypodermic needles would not qualify as DME, as they are not reusable.  Moreover, an electric scooter that the employee never uses in the home, but rather simply uses to get around the local grocery store also probably would not qualify.  Note that not all Medicare rules have been adopted by California in this area.

Under the workers’ compensation system, a physician may bill for and be reimbursed for dispensing medically necessary durable medical equipment.  The rate to be billed and reimbursed is capped at a particular rate established by California Labor Code 5307.1.  However, there is an exception for this if the DME device is a “dangerous device.”  A “dangerous device” is defined by California statute, and typically will be a piece of equipment that can only be dispensed with a prescription from a physician licensed in that particular field.  For dangerous devices, there is a different fee schedule or formula established by statute.

Employers should be wary, as unscrupulous individuals have exploited the provisions for DME billing.  For example, in 2014, several men were charged with many felony counts of conspiracy and submitting fraudulent claims after renting out DME in the workers’ compensation system, double billing and billing far above the actual value.  The men faced over fifty years in prison.

 

Durable medical equipment is covered under workers’ compensation, but you should consult an attorney to make sure you understand the obligations of your business.  Call us today at (714) 516-8188 if you have questions regarding Durable Medical Equipment.

Psychiatric Injuries – What Counts Under Workers’ Compensation and What Doesn’t

Work-related injuries can come in all shapes and sizes.  Sometimes it is obvious, such as a broken leg from falling off of a ladder.  Sometimes an injury is not visible to the naked eye, such as Carpel Tunnel Syndrome developed from repetitive motions such as typing.  What many employers do not realize is that a work-related injury does not have to be a physical injury in order to qualify under California’s workers’ compensation statutes.  Psychiatric injuries may also fall under the labor code’s definition of a compensable work-related injury.

In order for a cumulative psychiatric injury to qualify as a compensable work-related injury, the injury must be very particular prerequisites.  Under California Labor Code 3208.3, the psychiatric injury must meet the following requirements:

1. The employee must have worked for the employer for at least six months;

2. The psychiatric condition must be recognized by the American Psychiatric Association and listed in the DSM-V

3. The employee must prove that the work environment or event is the predominant cause of a psychiatric condition.

The statute also sets out those situations that would definitely not qualify for compensation under workers’ compensation.  This includes any condition that is caused by “good faith” and non-discriminatory personnel actions.  For example, if an employee suffers psychiatric injury because an employer is conducting a routine and reasonable performance evaluation, this would not qualify under the statute.  What would qualify, however, would be an injury sustained because of actions such as sexual harassment in the work place or witnessing physical violence in the workplace.  Moreover, psychiatric injury that is caused by the process of litigation or the workers’ compensation process is not compensable.  This means that just because a worker develops a psychiatric condition because of the stresses of the legal process surrounding a workers’ compensation claim, this does not mean that this psychiatric condition is now a part of the employee’s workers’ compensation claim.  The statute also recognizes that stress is not a diagnosable condition according to the American Psychiatric Association.  Note, however, that although stress standing alone is not an injury, it may be part of a compensable injury, such as post-traumatic stress disorder.  Employers should be cautious with psychiatric injuries to make sure that all of the requirements under the labor code are met.

If you have an employee making a workers’ compensation claim due to psychiatric injury, you need an experienced attorney to help you with the process.  Call us today at (714) 516-8188 if you wish to discuss psychiatric injuries and your business’ responsibilities.

Workers’ Compensation and Statutes of Limitation

When an employee sustains a work-related injury, there are many steps and a lot of paperwork that needs to be completed as quickly as possible.  The beginning of a workers’ compensation case is mostly punctuated with trying to make sure an employee gets lined up with the proper medical professionals as soon as possible, as well as efforts by the employer to determine just how the injury occurred.  To make sure that efforts are made promptly to seek appropriate medical care and to allow a proper investigation to be conducted, California has enacted a series of statutes of limitations which provide for strict timelines when particular claims and tasks must be completed.

A statute of limitations is a law that states a particular amount of time in which a plaintiff has to bring legal action.  In the context of workers’ compensation, this means the deadline by which an employee who sustained a work-related injury must notify his or her employer and must file a claim.  California Labor Code 5405 provides that an injured employee has one year from the date of the injury to file for workers’ compensation benefits.  Although this sounds simple, there are important complications.  An employee is required to provide notice to his or her employer within thirty days of the injury, or in the case of a cumulative injury, the date when the employee became aware of the disability or should have been aware of the disability when exercising “reasonable due diligence.”  Similarly, claims for serious and willful misconduct or claims for discrimination under Labor Code section 132(a) must also be brought within one year.  In workers’ compensation cases involving the death of an employee, the employee’s family must file for benefits within one year of the employee’s death, but no longer than 240 weeks from the date of the injury.  It is important to note that although workers’ compensation claims may be barred after a year, an employee may still be able to file a personal injury claim against a third party for up to two years.

Employers should also be aware that employees have gotten permission to continue on in workers’ compensation cases filed outside the statute of limitations period in some situations.  Several notable cases provide that where the employer failed to provide particular written notice of rights to employees, the statute of limitations may be tolled.

Statutes of limitations may seem straightforward at first glance, but there are many exceptions and nuances.  If one of your employees has sustained a work-related injury, contact us today at (714) 516-8188 to discuss crucial deadlines you need to know.

The Gregory Formula

Workers’ compensation benefits are designed to help an employee who has sustained a work-related injury by paying for related medical expenses.  The injured employee may receive a large variety of treatments including, but not limited to, physical therapy, prescription medication, chiropractic care, psychological services, or the use of durable medical equipment.  An employer may very well be on the hook for the costs of these services.  When providing medical care to an injured employee, medical providers and group health insurance providers may file liens against the workers’ compensation recovery in order to ensure reimbursement for care provided to the employee.  Ultimately an employer and an employee may agree to settle the workers’ compensation claim by a compromise and release agreement.  In a case styled Kaiser Foundation Hosp. v. Workers’ Comp. App. Bd., the WCAB addressed the issue of what happens when the medical providers who have filed liens do not agree with the amount settled on in the compromise and release agreement.

In that case, four separate cases were consolidated for consideration by the WCAB.  The issue revolved around how much a lien claimant should recover in a denied case.  It was proposed that the Lien Claimant should be eligible for the same ratio of recovery that the injured worker accepted as settlement of the case.  Where the lien claimant does not agree with the amount of the settlement compromise, the workers’ compensation referee shall “determine the potential recovery and reduce the amount of the lien in the ratio of the applicant’s recovery to the potential recovery in full satisfaction of its lien claim.”  The court stated that the phrase “potential recovery” means “the amount of recovery which is reasonably probable” in a contested trial, examining the entire record.  The proposed settlement should include the formula for determining the reduction of the lien, called “the Gregory Formula,” and the computation of the potential recovery needs to include a variety of figures, including the percentage of disability, medical expenses, and the duration of future medical expenses.  In the simplest terms the proposed recovery is a fraction, where the actual settlement amount is the top number (numerator), and the total reasonable case value if Worker won at Trial is the bottom number (denominator).  Basically, if the Injured Worker accepted 25% of the potential case value as settlement, that number could be attributed to the lien claimants.  These need to be set forth in specific detail for the judge.  These figures have to be disclosed to the lien holder to allow it to examine the basis on which the settlement would reduce the award against it.  If the Lien Claimant objects to the formula after notice, the WCAB may withhold that lien from resolution, and give the Lien Claimant an opportunity to independently prove up an injury.  The lien claimant then runs the risk of zero recovery if they fail to independently prove an injury.

If you have a question about how the Gregory Formula could help reduce the financial liability of your business during a workers’ compensation case, contact me today at (714) 516-8188.  We can discuss your business and your options.

The Privette Doctrine and Alvarez v. Seaside Transportation Services LLC

Workers’ compensation rules apply to almost every single employer across the state of California.  There are some industries that are more inherently dangerous than others, and so tend to have more workers’ compensation issues.  The construction industry tends to be one of these, as the very nature of the business requires working with heavy machinery, open trenches, electrical wires, and an enormous variety of dangerous conditions not present in, for example, an office setting.  In Privette v. Superior Court, the court developed a particular doctrine discussing the liability of owners and sub-contractors in the construction field.  The Privette Doctrine holds that in general, contractors and project owners are not liable for tort damages in work-related injuries sustained by the independent contractors hired by the lower-tiered contractors.  The reasoning for this is that those employees should already be covered by the insurance of their direct employers.  A recent case discusses the Privette Doctrine and its application.

In Alvarez v. Seaside Transportation, the plaintiff was injured on the job.  He drove his work van into a shipping container while on the job site.  When he was injured, he was employed by Pacific Crane Maintenance Company, who was in turn hired by Evergreen Container Terminal for the purpose of performing maintenance on its marine container terminal.  The plaintiff sued Evergreen and two if its contractors, alleging they were negligent in the placement of their containers.  The defendants asked the court for summary judgment in their favor, citing the Privette Doctrine.  The trial court granted the motion, and the plaintiff appealed.  On appeal, he argued that he should have been permitted to proceed to trial, as he raised issues of material fact over whether the Privette Doctrine applied in his case at all, as the defendants retained control over the safety conditions at the work site, which is a theory by which some plaintiffs may proceed with a tort case despite the Privette Doctrine.  The appellate court agreed with the defendants.  In these types of cases, a plaintiff may still be able to proceed with a tort case if he or she can prove that the contractor did not fully delegate the task of safety to the lower-tiered subcontractor who hired the independent contractor.  In this case, the plaintiff’s mere allegations that such was the situation here did not meet his burden of proof, and the trial court was correct to grant the defendants’ motion for summary judgment.

Construction cases are highly nuanced and require a skilled attorney.  I have experience in assisting my employees with their businesses in these types of cases.  Feel free to contact us  at (714) 516-8188 if you have  questions in this field.

Apportionment and Escobedo

Although employers work diligently to reduce the risk of injury to their employees, injuries are still a reality in the modern workplace. Most of these injuries will not result in a complete and permanent disability to the employee, and so he or she will return to work in some capacity. In some unfortunate circumstances, the employee may later sustain yet another work-related injury. He or she would then begin the workers’ compensation process again for the new injury. With the advent of many modern medical technologies, it has become increasingly possible for medical professionals to determine what portion of the worker’s disability is attributable to the current work-related injury and what portion of the disability is attributable to the prior work-related injury. This process is called “apportionment,” and is a major source of litigation in the workers’ compensation field. In 2005, the Workers’ Compensation Appeals Board issued an opinion in a case called Escobedo v. Marshalls which provides guidance on how to apply apportionment statutes found in Labor Code section 4663.
In that case, the plaintiff sustained an injury to her left knee while working at a Marshalls clothing store. The plaintiff also developed problems in that knee as a result. Although the plaintiff did not have knee problems before the injury, her doctor had diagnosed her with arthritis about ten years before the injury. The plaintiff also developed some problems in her right knee, which a QME determined was a direct result of the injury to her left knee. The doctor determined that 50% of her disability was caused by the plaintiff’s pre-existing arthritis. The WCAB pointed out that the plaintiff has the burden at trial to prove the percentage of permanent disability directly caused by the work-related injury, while it is the employer’s burden to prove the percentage of disability caused by other factors. The court also went on to state that even if a medical report addresses the issue of causation and does make an apportionment determination, it still has to constitute substantial evidence if it is to be relied upon in making that determination. “Substantial medical evidence” means that the doctor’s opinion must:
1. Be within reasonable medical probability;
2. Not be speculative;
3. Be based in relevant facts;
4. Be based on an adequate patient history and examination; and
5. Include the reasoning in support of the doctor’s apportionment conclusion.
Since this opinion was entered, there have been many other cases discussing apportionment and the impact of the holding in Escobedo. We have experience in helping our clients understand their responsibilities and rights when it comes to apportionment of an employee’s work-related injury. Call us today at (714) 516-8188 to talk about your business.

Public Service and Workers’ Compensation

Public Service and Workers’ Compensation

Every day safety officers risk their safety and their lives to help protect the community.  These safety officers include police, sheriffs and their deputies, highway patrolmen, and firefighters.  These people are in dangerous jobs and are more likely than most members of the public to sustain a work-related injury.  These safety officers have special entitlements and protections under the California labor code.

 

In most circumstances if an employee sustains a work-related injury, he or she will be able to recover temporary total disability benefits.  These benefits are available up to two-thirds of the employee’s salary, according to the limits that existed at the time the employee sustained the injury.  However, in the case of a safety office who sustains a work-related injury, according to California Labor Code 4850 he or she is entitled to disability payments of up to a year’s full salary, free from any income taxes, while he or she is temporarily totally or permanently disabled as a result of the work-related injury.  If a safety officer remains disabled after the year is over, the safety officer is still entitled to receive temporary total disability benefits at the standard state rate, even though the full salary is no longer paid.

 

Safety officers also have protection in that there are certain “compensation presumptions” that apply to them in certain circumstances.  This means that there are particular conditions and illnesses that will be presumed to fall under workers’ compensation laws.  Labor Code 3212 provides that for particular safety workers, the term “injury” shall include any hernia, pneumonia, or heart trouble that develops while the worker is in the service for their unit.  The compensable award for these injuries include full hospital, surgical, medical treatment, and other certain benefits.  These safety officers would include firefighters, sheriff’s deputies, members of the district attorney investigative unit, and fish and game wardens.  It should be noted that clerical staff are excluded from these protections. Firefighters are also afforded special protection for cancer diagnosis when the safety officer can demonstrate he or she was exposed to a known carcinogen during his or her service to the unit.  Safety officers also qualify for special protection when contracting tuberculosis or MRSA.

If you have questions about workers’ compensation and your business, contact me today at (714) 516-8188 to discuss them.  You need an experienced attorney to help you understand this process.

Is My Worker an Independent Contractor?

Employers many times will take different paths to make sure that the services and products demanded by customers and clients are supplied an executed in a timely manner.  This includes hiring employees directly as well as using the services of other businesses, such as internet service providers, couriers, or food services.  In between these two falls the independent contractor.  While an employer is required to provide workers’ compensation insurance for all employees with few exceptions, an employer is not required to provide workers’ compensation insurance for independent contractors.  Penalties for failing to adhere to this provision are severe, so it is crucial that an employer have a firm understanding of the differences between an employee and an independent contractor.

 

California Labor Code section 3353 defines “independent contractor” as 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.”  This statute essentially means that to be an independent contractor, the person has to have control over the way in which a job is accomplished.  Accordingly, if an employer is telling an independent contractor not only what the job is to be done but also how and when to do the job, it is very possible that the person is actually an employee.  The California Supreme Court also laid out a multi-factor test in S.G. Borgello & Sons, Inc. v. Dept. of Industrial Relations, which discusses a long list of other potential contributing inquiries.  These include such issues as whether the person performing the services is also engaged in another business that is separate from that of the employer, whether the service performed is part of the regular business of the employer, who supplies the work materials for the job, and whether the service rendered requires special skills.

 

There is an automatic presumption under Labor Code that a person is an employee.  If the employer disputes this, then it is up to the employer to prove that the person is an independent contractor.  The most straight-forward way to demonstrate that a person is an independent contractor is to have a written agreement between the business and the contractor that specifies this.  However, the employer must be aware that simply calling a person an independent contractor does not make it true, as a court will look beyond the agreement to what the parties actually did in order to make the final determination.

 

If you have questions about your business and making sure it is in compliance with rules regarding independent contractors, call us today at (714) 516-8188.  I have experience in helping my clients understand the rules and regulations for any business.

Workers’ Compensation and Chiropractic Care

It is increasingly common for people to seek out alternative treatments for all types of ailments.  Many people shy away from taking too much medication or the traditional routes simply have failed to address their problems.  This will also hold true in workers’ compensation cases.  Not all employees who have suffered a work-related injury will want to pursue a course of treatment that involves heavy prescription drugs or drastic surgery.  In some situations, the worker may seek the care of a chiropractor to help with their injuries.  Workers’ compensation legislation requires employers to provide medical care, including chiropractic care, for their employees that is reasonably required to cure or relieve an injury.  Chiropractic care can present special issues that employers should be aware of.

Chiropractors occupy what some believe to be a dubious position in the medical world.  However, employers need to be aware that chiropractors do receive medical training, and in some cases more physiological training than family doctors.  A chiropractor’s approach deals with creating a treatment plan that does not involve drugs, but rather by performing adjustments to address the way the nervous system is controlling the body.  In terms of workers’ compensation cases, employers should be vigilant about the treatment administered by a chiropractor, as in some cases, the tendency is to continue to treat the injured employee long after a traditional doctor would have discharged the patient.  Chiropractors often believe firmly in preventative and follow-up care, which naturally requires many more appointments to continue to address potential future problems.

Like with any medical claim, there should also be special attention paid to an injured employee’s medical history.  If after reviewing medical records, an employer or insurance company discovers that the employee was already an existing patient with the chiropractor at the time of the injury, this should be red flag to investigate further.

The California legislature has taken steps to address the potential for excessive ongoing chiropractic appointments in workers’ compensation cases.  Section 4604.5 of the California Labor Code restricts the number of chiropractic visits for a work-related injury to no more than twenty-four.  The code does provide an exception in the case that an insurance company approves of extra visits.  This section applies to injuries sustained after January 1, 2004.

If you have questions about chiropractic care and workers’ compensation, call us today at (714) 516-8188.  We will discuss your business and your obligations.

Chronic Pain Claims

One of the symptoms of an ongoing injury is pain.  Employees who have sustained work-related injuries will almost always have some degree of pain associated with their injuries.  During their course of treatment with medical professionals, hopefully the pain will quickly decrease and disappear.  However, in some situations, the pain does not go away, and an employee may claim to have a chronic pain condition.  Chronic pain is a serious problem with special considerations for workers’ compensation cases.

Opioid pain killers can frequently be the first line of defense used by medical professionals against pain for employees who have been injured on the job.  While there are certainly valid and important reasons to prescribe opioids for chronic pain conditions, opioids also come with a high risk of abuse or addiction.   It can also cause more harm than good in the long term, and can even lead to the worsening of pain.  One alternative that some doctors and employees are exploring is the use of medical marijuana.  Medical marijuana has proven to be effective against chronic pain for many adults.  With the use of medical marijuana or opioids, employers should be aware of the risks that come along with an employee using these substances.  An injured employee who has returned to work but who still suffers chronic pain and is prescribed a medication to address the condition may not be suitable for certain types of work accommodation.  For example, an employee still using heavy pain killers should probably not be operating heavy, industrial machinery.  Employers should be cognizant of this potential issue when crafting a return-to-work plan for the employee.

Although many chronic pain conditions resulting from work-related injuries are valid claims, there are also other issues in play.  The American Medical Association conducted a study in 2013 that determined that the potential for compensation “is the primary risk factor for chronic pain in a claim context.”  In many cases, the AMA found that patients were more likely to have an injury that lasts longer and requires more treatment if the patient is involved in a law suit, such as a workers’ compensation claim.  For example, the study found that a patient was likely to report a headache was gone after one day if there was no claim, but reported pain for fifteen days if there was a claim.  The AMA did not come to the conclusion the patients were lying, merely that there is a psychological impact of an ongoing claim on a patient’s condition.  An employer should make sure that a medical provider’s evaluation clearly specifies whether the medical diagnosis provides a detailed explanation for the chronic pain condition, especially as it relates to the workers’ compensation claim.

Employers should be sensitive to the fact that some employees really do suffer chronic pain, while still being vigilant for issues that will negatively impact the business.  Contact us today at (714) 516-8188 to talk about questions you may have about your business’s responsibilities.

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