Home Healthcare and Workers’ Compensation

For obvious reasons, workers’ compensation is intricately intertwined with the health care industry. This may include hospital stays, physical therapy, chiropractic services, psychological treatment, or an enormous variety of other services, depending on the nature of the work-related injury. With respect to home healthcare, employers need to be aware of two different potential issues that are related to workers’ compensation.

The first potential issue is if the employer’s own business is to provide home healthcare services. In California, it is required that all employers provide workers’ compensation insurance for all of their employees, with a few limited exceptions. The home healthcare industry is not one of those exceptions, in and of itself. In other words, chances are that your home healthcare business is required by California law to carry workers’ compensation insurance. Although home healthcare is not typically thought of as a “high risk” industry, there are many hazards inherent in the home healthcare business. Home healthcare providers are always inside of unfamiliar homes that may not be very clean or safe. Even if the home is completely free of typical hazards, simply being unfamiliar with surroundings can lead to more injuries. Accordingly, it is essential that home healthcare business owners not ignore the workers’ compensation insurance mandate.

The other potential issue could be whether an employer of a worker who has sustained work-related injuries is required to pay out a claim for home healthcare. This issue was addressed in a WCAB case called Hernandez v. Geneva Staffing, Inc. that was handed down in June 2014. In that case, a worker had a severely injured hand and received home healthcare services from his wife. He submitted a claim to his employer for payment for those home healthcare services. The employer denied the claim, based on the fact that the employee failed to provide a valid medical prescription for the home healthcare services. The WCAB explained that an employer may be liable to pay for home healthcare services where certain conditions are met, such as a valid medical prescription. The WCAB also explained that the amount that the employer may be liable for is limited by the Official Fee Schedule.

Employers of any industry have many responsibilities toward their employees when it comes to workers’ compensation. Call me today at (714) 516-8188 and let me review your business’s obligations with you.

Exclusivity Rule

Every employer takes all precautions possible to prevent any type of injury from occurring in the work place.  Unfortunately, sometimes even the most cautious and meticulous of employers cannot prevent all injuries to its workers. When this happens, the employee who has incurred a work-related injury may file for compensation under workers’ compensation provisions of California law.  In some rare cases, however, employees who have sustained work-related injuries may attempt to recover damages through other means, other than workers’ compensation.  The California Labor Code and associated case law has strict provisions about when such a course of action may be permissible.

California Labor Code section 3600 contains the statute that codifies what is colloquially known as the “Workers’ Compensation Exclusivity Rule.”  The exclusivity rule provides that the workers’ compensation system is the exclusive method by which the employee may recover for a work-related injury, as long as this injury is incurred during the course and scope of the employee’s employment.  The workers’ compensation system is a no-fault system.  This means that an injured employee does not have to prove that an employer is responsible for the injury, only that the injury occurred during work and in the scope of employment.  However, in a civil case brought in a traditional court room, an employee would be required to prove fault, or at least negligence.  The trade-off is that in the workers’ compensation system, the injured worker is limited in the amount and type of damages that he or she may request or be awarded.  However, in a tort suit (meaning the type of suit that is brought in a “traditional” court room), an injured worker could ask for a larger variety of damages, including medical expenses, lost wages, lost capacity, and loss of household services, in addition to the damages that could be alleged by the spouse of the injured employee.

However, the exclusivity rule prevents an injured worker from seeking to bring a civil suit against an employer at the same time that he or she brings a workers’ compensation suit.  In other words, injured employers are prevented from bringing a workers’ compensation suit in addition to a civil suit.  There are exceptions to the exclusivity rule, though.  These exceptions include such issues as employer assault, fraud, and an uninsured employer.  If an exception applies, though, there are still rules that apply to prevent an employee from receiving a double recovery.

If you have questions about the exclusivity rule or other issues relating to how an employee may recover against his or her employer, contact us today at (714) 252-7078.

Proposition 64 and Safety-Sensitive Fields

In November 2016, Californians voted to pass the ballot measure of Proposition 64.  This law legalized the recreational use of marijuana in private homes and businesses for residents who are 21 years of age or older.  Legalization for purposes of recreational use at the state level does not give employees carte blanche to get high and come to work, however.

Proposition 64 will be added to the California Health and Safety Code as Section 11362.45.  The law includes a provision that states that nothing in the law should be interpreted in such a way as to preempt the ability and right of an employer to maintain a drug and alcohol work place.  The law also states that an employer cannot be forced to accommodate the use of marijuana in the work place.  Finally, it also states that employers are free to continue to have policies that prohibit the use of marijuana by employees or prospective employees.  Also of note is that the law does not differentiate between medical use and recreational use of marijuana.  Employers are free to continue to prohibit marijuana use even if that use is medicinal.  Federal and state law requires that employers make reasonable accommodation for a disability, but the new law does not require that employers make accommodation for drug use.

This is all a logical set of restrictions when it comes to safety-sensitive professions.  Construction workers and truck drivers face high incidences of work-related injuries, and are in fact some of the most safety-sensitive fields in California.  The law provides that employers may continue to craft policies and hiring and firing practices that will ensure their employees are sober and drug-free.  California labor code § 3600(a)(4) precludes employer liability for a claim of workers’ compensation where the injury was at least proximately caused by intoxication or the unlawful use of a controlled substance.  Now that marijuana is legal for adults to consume even without a prescription, employers must rely on the fact an employee was intoxicated at the time of the injury, as opposed to use of marijuana. Of note is that OSHA has new rules that prohibit blanket post-accident drug tests, so a post-accident drug testing policy needs to accommodate this regulation.

If you have questions about your employees’ use of marijuana and how it may impact your workers’ compensation system, contact me today at (714) 252-7078.  We can discuss your business and make sure you are in compliance with the current law.

Stipulation and Award

After a worker sustains a work-related injury and the workers’ compensation claim has been filed, the case must come to some sort of conclusion. One way is that the parties will go before the Workers’ Compensation Appeals Board and let a judicial officer make the decisions. Another option is a form of settlement referred to as “stipulation and award.”

A “stipulation and award” has the same effect as an order that is decided upon by a judge. The difference is that the parties have come to an agreement on the issues, and submit this agreement to the judge. The judge will review the agreement, and as long as it is equitable, the judge will sign it, making it a court order.

Under this type of settlement, the parties will need to come to an agreement on the degree of permanent disability suffered by the injured employee. The degree of permanent disability is governed by a particular formula. The percentage of disability will determine the amount of weekly payment that the injured employer will receive. The parties will also have to come to an agreement of the duration of the payments, i.e. the number of weeks the injured worker will receive payments.

The settlement will also need to dictate whether the injured employee will continue to require medical treatment for the work-related injury. If the injured employee does need continuing medical care for the injury, then he or she will need to continue to submit those claims to the insurance carrier. The insurance carrier will, in turn, make a decision as to whether or not to approve the medical treatment.

One thing to remember about a stipulation and award is that it does not usually result in as large a payment to the employee as the other common type of settlement, which is called “compromise and release.”  In that type of settlement, the employee receives a lump sum and the case is closed completely. Moreover, in a stipulation and award settlement, the employee has the opportunity to reopen the case at a later time (as long as it is within 5 years of the original injury) if the injury becomes aggravated and requires additional medical treatment to cure or treat.

It is very important to understand the different options available to potentially settle a workers’ compensation claim brought against your business. If your business is facing a workers’ compensation claim, contact me today at (714) 516-8188 to discuss it and how I can help your business.

What to Expect from a WCAB Hearing

The nature of a workers’ compensation proceeding is not like the trials shown on television. First, a traditional trial is held before a judge or a jury. There is often a “gallery,” which means the rows of benches where the trial can be observed. If a traditional trial does not finish all in one day, the case typically continues the very next day, or soon thereafter. However, a workers’ compensation claim is a bit different, but does have some similarities. When a claim is made, the attorneys for both sides will try to settle the issues before it has to go to before a judge. Like a traditional case, attorneys may successfully settle all, none, or just some of the issues. For example, in a workers’ compensation case, it may be possible for the attorneys to agree on the fact the injured person was an employee at the time of the incident, and the incident did result in a work-related injury, and then only have to proceed to trial on the remaining issue of degree of disability and related medical issues. If the attorneys are unsuccessful in settling all of the issues, a typical case would proceed to trial before a trial judge or a jury. A workers’ compensation claim, however, will go before the Workers’ Compensation Appeals Board (WCAB). The claim will be tried by a workers’ compensation judge. A jury is not an option in a WCAB proceeding. If the trial does not finish the same day, it is likely that instead of continuing the very next day like a traditional trial, the workers’ compensation matter will not be reconvened until a set day that may be several months away. Like a traditional trial, both sides will be permitted to call witnesses to support their version of events. These witnesses may include co-workers, supervisors, or medical professionals, depending on what issues need to be resolved at the WCAB. After the evidence is completed, the WCAB judge will probably not provide his or her decision on the same day. This is typically called taking something “under submission ” and it often happens in a traditional courtroom, as well. Eventually the judge will make a decision, and the attorneys will receive notice of that decision. If either side is unhappy with the result, they may file an appeal, which is called a “Petition for Reconsideration.”  If that occurs, the end of the case will again be delayed.

There are many similarities between traditional court and the WCAB. If you have questions about the differences, I am ready to answer your questions. I am experienced in how to navigate the unique nature of the WCAB and look forward to discussing your case with you. Call me today at (714) 516-8188 for an appointment.

Forum Selection and California Code 925

In 2016, there were many laws that came before the Governor of California concerning workers’ compensation. Some were vetoed and some passed, each of which slightly changes the landscape of workers’ compensation law here in California. An important change in the law came in the form of S.B. 1241, which after ratification is now California Labor Code Section 925. This bill takes effect January 1, 2017 and changes the way that California employers can structure their contracts. Forum selection clauses are quite common in employment contracts and handbooks. These clauses typically state that the parties to the contract (i.e. the employer and employee) agree that any disputes arising out of the employment shall be subject to binding arbitration, or may also state the parties agree to submit their disputes to a jurisdiction outside of the State of California. As of today, any employee may sign one of these contracts before beginning employment, if so requested by his or her employer. However, under the new terms of the Labor Code, an employee that is not individually represented by an attorney during the employment negotiation may not be required to sign a contract for employment that includes:

1) to adjudicate a case outside of California if the claim arises in California; or

2) deprive the employee of the protections under California law if the claim arises in California.

To be eligible for these protections, an employee must primarily reside and work in California. Moreover, the section only applies to contracts “entered into, modified or extended on or after January 1, 2017.”

The language of the statute specifically states that employer cannot be forced to sign the contract as a “condition of employment.”  It is therefore not clear if the forum selection could be enforced on optional benefits.

So, what does this mean for workers’ compensation?  An employer may not require an employee to sign a contract that agrees that and work-related injury disputes, 132(a) claims, or other disputes relating to industrial injuries must be submitted to arbitration or must be decided in a court outside of California. This is true even of companies that are headquartered outside of California. Unless an employee has his or her own lawyer to negotiate the terms of the forum selection clause, then an employer may not compel an employee to sign a contract waiving his or her ability to litigate work-related injuries as a condition of employment. Clearly the legislature intends that each employee who works primarily in California to have the full protection of workers’ compensation laws in this state.

If you have questions about how the new law impacts your company’s current workers’ compensation forum selection, contact me today at (714) 516-8188. We will discuss your contract and ensure compliance with the new law.

What Violates 132(a)?

California Labor Code 132(a) clearly states that the policy behind this section is that there should not be discrimination against employees who are injured at work. The code goes on to outline that any employer who takes adverse action against an employee due to the employee making a workers’ compensation claim is subject to both civil and criminal penalties. These penalties can be severe, and it is important to have a firm grasp of what does and does not violate the terms of section 132(a).

The most obvious type of violation is where an employer takes direct adverse action that is discriminatory. An employer will expressly violate the statute if the employer terminates or threatens to terminate the employment of an employee because the employee has filed or expressed the intention to file a workers’ compensation claim, the employee receives an award for a workers’ compensation claim, or testified before the Workers’ Compensation Appeals Board for another employee’s claim. The employer will also have expressly violated this section for discriminating against the employee in any way for these same reasons. Discriminatory action can include such actions are not limited to termination; they can also include other adverse actions, such as changing a shift to hours the employer knows the employee cannot work. The law also covers other discriminatory acts by the employer, such as when an employee is penalized for being injured on the job or from missing time from their job due to an injury sustained in the workplace.

Insurers are also included in prohibitions under 132(a). An insurer may not tell an employer to terminate the employee because an employee has filed for workers’ compensation benefits, received an award of workers’ compensation benefits, or testified before the WCAB for another employee’s workers’ compensation claim. Under this section, an insurer is prohibited from telling an employer to fire an employee when that is coupled with a threat to cancel a workers’ compensation insurance police, to raise the insurance premium, or other adverse action against the employer.

These cases are typically filed in conjunction with an underlying workers’ compensation claim. The employee must do more than simply allege that they suffered adverse consequences from the employer. The employee must also prove that they suffered these adverse actions because of their workers’ compensation claim.

It is very important to protect your company from potential claims under 132(a), as a successful suit can be very financially damaging or even fatal to your business. If your business is facing a suit under 132(a), contact me today at (714) 516-8188 to discuss it.

Reducing Workers’ Compensation Costs

Recent years have seen definite drops in employee work-related injuries. This is a happy development, but, unfortunately, has not lead to corresponding drops in workers’ compensation insurance premiums to employers. Despite this, there are ways to help reduce the cost of your workers’ compensation.

The first way is the most obvious – continuing to reduce injuries. Continuing to keep up with the latest safety measures and technology to reduce work-related injury is an excellent way to ensure continuing drops to injuries. Making sure your machinery, work place, and equipment is in good repair is also vital.

Next, make sure your staff is receiving adequate training. Training manuals and videos are good tools for this, but it is also important to make sure that the employees are actually reading and absorbing this material. The material also needs to be up-to-date. For example, if you have implemented new safety procedures and new safety technology, it is imperative that manuals and training materials are updated accordingly.

Third, it can be beneficial to incentivize your employees. Set goals for meeting particular safety benchmarks, and make the benefits applicable to the entire workplace. This not only will compel each individual employee to try to maintain safety standards, but will also generate an atmosphere of cooperation and positive peer pressure to make sure that the safety procedures are appropriately utilized.

It should also go without saying that you need to be honest with your workers’ compensation insurance company. Make sure the company is aware of the safety procedures you have implemented and maintain an open dialogue to make sure that your premiums are set appropriately.

If a worker is injured on the job, contacting the appropriate medical personnel immediately is vital. This will help ensure that the worker does not sustain further injury.

If you have failed to maintain insurance, a worker gets injured, and the Uninsured Employers Benefits Trust Fund is seeking to place a lien against your business, another way to “after the fact” help reduce the cost is to seek assistance from a lawyer trained in workers’ compensation matters. That attorney may be able to help you negotiate payments or even reduce the final lien amount with the Trust Fund.

Businesses should take all available precautions to help reduce their workers’ compensation costs through training and procedure. If a lien or judgment is established, the business should contact an attorney to help negotiate that amount. I have significant experience and training in workers’ compensation, and can help you. Contact me today at 714-516-8188 to discuss your business and its liabilities.

Bankruptcy and Uninsured Claims

All businesses are required to carry workers’ compensation insurance for their employees in California, with few exceptions. If a business fails to carry such insurance and a worker sustains a work-related injury and successfully receives an award for said injury from the WCAB, the worker can seek payment from the Uninsured Employers Benefits Trust Fund (UEBTF or UEF). The Uninsured Employers Fund will then seek to recoup the costs paid to the employee from the uninsured employer. When the Uninsured Employers Fund is seeking to recover those costs paid against a business which has filed for bankruptcy protection, the question becomes whether that debt is dischargeable by the employer in their bankruptcy.

The controlling case in this issue is In re George, 361 F.3d 1157 (9th Cir. 2004). In that case, the couple declared Chapter 7 (discharge) bankruptcy. Later, the UEF attempted to file a lien against them for funds paid out to an injured worker. They disputed the lien in their bankruptcy case, as they had received a discharge. The UEF  argued that the debt was not dischargeable. The Court disagreed, and ruled that debt to the Trust Fund for injury to an injured worker is dischargeable in bankruptcy.

However, there are actually two types of bankruptcy for businesses: liquidation (or Chapter 7) bankruptcy, and reorganization (Chapter 11) bankruptcy. In a Chapter 7 bankruptcy, your business gets a “clean slate” and all assets are completely liquidated to help pay off the debts against your business. However, in Chapter 11 bankruptcy, your debts are reaffirmed and your business will be put on a payment plan. Chapter 11 is more common, as not all businesses will be eligible to declare chapter 7 bankruptcy.

If your business is has a lien from the UEF or a pending claim from an injured worker, the important next step is to attempt to negotiate down the amount of the lien with the UEF. As it is more likely that your business will be in Chapter 11 bankruptcy and will have to pay off all debt, it is an obvious benefit to make sure that there is less debt and the lien is as small as possible.

I have experience in dealing with the Uninsured Employers Fund in the context of helping my clients negotiate down debts. If you are facing a lien or judgment from the UEF, contact me today at 714-516-8188 to discuss your options in negotiating your lien.

Retaliation and How to Equip Your HR Department

Retaliation or discrimination against an employee who has filed a workers’ compensation claim can result in harsh penalties for a business. This also applies for employees who have already received a settlement for their compensation claim. Types of retaliation can include actions such as terminating employment, demotion, reducing an employee’s benefits, or reassigning the employee to a different location. In the event of a retaliatory action by an employer, the Division of Workers’ Compensation (DWC) and the Department of Fair Housing and Employment (DFEH) will be involved in an employee’s claim under Labor Section 132(a). These claims, if proven true, can result in harsh civil and even criminal penalties for an employer. The best way to handle these claims is to prevent them before they even start.

 

The most obvious way for an HR Department to prevent these types of claims is to not take any of the types of actions that may be considered retaliatory, such as termination or demotion. Unfortunately, it is not always possible to maintain the status quo.

 

In the event that termination or demotion is required due to an employee’s poor performance, it is vital that the poor performance is well-documented. HR should follow the business policies for termination or demotion, and should make sure that any policies are applied equally to all employees, regardless of whether they have filed any type of workers’ compensation claim in the past. Your HR Department should have carefully articulated policies and rules for termination, demotion, or changing an employee’s position. These rules need to be clearly broadcast and set out to the managers. It is essential to make sure these policies and procedures are followed and applied fairly and equally to all employees. An emphasis on creating written reports documenting problems with a particular employee should be made in order that managers understand that the key to avoiding future problems is building a file of written instances of past misconduct by the employee.

 

In the event that an employee does file a retaliation suit against the business, it is possible that the way to resolve this issue would be to settle the claim together with the underlying workers’ compensation suit, or perhaps to put the employee back to work. Both of these options, as well as any others, require thorough discussion with an attorney, and the HR Department should not attempt to handle the issue alone. As mentioned, mishandling and losing a retaliation suit can result in harsh penalties, and the issue should not be treated lightly.

 

The best first defense is to prevent this type of law suit from beginning. Contact me at (714) 516-8188 or email wcabdefense@hotmail.com to discuss your policies and whether they conform with the law.

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