Workers’ Compensation Lien Process

After an employee sustains a work-related injury, there are a number of processes which must be set in motion. The injury must be properly documented, witness statements need to be taken and filed, notice needs to be sent to insurance companies, and a variety of other procedures. Many of these procedures, such as medical appointments, attorneys, and living expenses involve the exchange of funds on behalf of the injured worker or his or her family. In some cases, a lien may be filed against the worker’s compensation claim in order to obtain reimbursement for these expenses.
Not every type of expense associated with a workers’ compensation case is eligible to file a lien against a claim. The expenses eligible are: attorney fees, burial expenses, living expenses for the spouse of the injured employee and minor children, unemployment disability benefits paid while waiting on a determination of the work-related injury, unemployment benefits paid to the extent that the payments overlap the time period that an employee is entitled to temporary total disability, indemnification granted by the California Victims of Crime Program, and reasonable expenses incurred by or on behalf of the injured worker for medical treatment, unless those treatments are subject to a dispute involving an independent medical or bill review.
Medical treatment expenses are typically the most common liens filed against a workers’ compensation pay out. In order to file a lien, a filing fee of $150 must be paid, although there are certain types of claims that are exempt from the fee. Other types of liens, such as burial fees, attorney fees, spousal expenses and several others also are not required to pay a filing fee. If a filing fee is required for a lien and the fee is not paid, the lien will be considered invalid and it will be as if the lien was never filed. Liens must be filed electronically, using one of two methods, called E-Form or Jet File. All liens must be reviewed by and approved by the Workers’ Compensation Appeals Board. A lien is only payable once the WCAB has issued an order allowing payment of the expense.
Liens are an effective method to make sure that those associated with a workers’ compensation case receive compensation for services rendered, and also to ensure that a worker does not receive double payments from both the disability system and the workers’ compensation system. If you have a question about liens in workers’ compensation cases, contact me today at (714) 516-8188. We can discuss your business and the lien process

“Serious and Willful”

When an employee makes a workers’ compensation claim, typically all or he she needs to prove is that he or she was injured and that injury was, in fact, sustained at work. Once the employee provides this proof, a claim is typically approved. The majority of disputes in workers’ compensation cases are not over whether an injury occurred, but rather the degree of the injury and the degree of the disability. Once that is settled, an employee will typically receive at least some degree of compensation. The employee’s burden of proof is quite low. He or she does not need to prove that the injury was the employer’s fault, but only that the injury happened and it was a work-related injury.

A claim for additional compensation under Labor Code 4553 is a different type of case. In those cases, an employee is making the claim that he or she is entitled to compensation over and above the regular workers’ compensation avenues because of the employer’s serious and willful misconduct. To prove this type of claim, an employee must prove that an employer knew of the danger but did nothing to correct it. The failure must be more than just negligent behavior. An employer must have essentially understood the fact that injury was likely to result from an employer’s failure to act but nevertheless failed to take remedial measures.

Serious and willful misconduct cases are serious for employers. Workers’ compensation does not cover these types of claims, and in fact the statute specifically provides these injuries are not insurable at all. The labor code provides that if an employer is found to have caused an employee’s work-related injury through its “serious and willful” misconduct, the employer must pay an amount equal to half the value of all benefits paid as a result of the injury. These benefits include all disability, both temporary and permanent, as well as medical and vocational rehabilitation benefits. A workers’ compensation judge has no discretion in adjusting the amount of the award, and the employer must pay the full amount of damages if the employee meets his or burden of proof. As these injuries are uninsurable, an employer must pay any recovery from the employer’s own funds.

 Serious and willful claims are very serious, and you need an experienced attorney to help you with these claims, both before and after they occur. Call me today at (714) 516-8188. We can talk about your business and these types of claims.

Common Reasons Claims Are Denied

The claims process for workers’ compensation can be notoriously complex and difficult to navigate. Each employer should make every available effort to smooth the claims process before it starts by providing adequate training to employees, including managers, and making sure that there are definite procedures in place for the process. Despite best efforts, claims can be denied. Understanding common reasons behind an initial claim denial can assist in smoothing the process.

 

One of the most common reasons for denial of an initial claim is filing a claim after termination .  In California, the statute of limitation on workers’ compensation claim is one year from the date the employee suffered the injury. If the injury was cumulative, meaning it was sustained little by little over time, this could be an exception. If the claim is filed after the statute of limitation has passed, the claim will probably be denied.

 

Another reason could be that the documentation backing the claim is inadequate or inaccurate. An employee needs to provide as much detailed and compelling medical documentation as possible. This includes not only the initial diagnosis, but also how this injury impacts the employee’s ability to work. Just because an employee provides documentation that he or she is injured, even if that injury seems significant, this is not enough. A key component of a workers’ compensation claim is determining an employee’s level of disability. Inadequate documentation supporting a workers’ compensation claim will likely result in the claim being denied.

 

A dispute between the employee and the employer is another common reason for claim denial. An employer may contest a workers’ compensation claim for a number of reasons. For example, an employer may dispute that an injury actually occurred in the scope of employment or that an injury occurred at all. In such a situation, it may be necessary for the employee to gather even additional evidence to resolve the dispute from the employer. Employers should be vigilant for a lack of documentation or other possible signs of fraud, and not be afraid to request additional proof. Workers’ compensation claims may increase an employer’s insurance premiums, so an employer needs to make sure that any potential claims are valid.

 If you have questions about your business and the workers’ compensation claims process, contact me today at (714) 516-8188. The claims process can be complicated, and you need an experienced attorney to walk you through it.

Types of Benefits Awarded

Workers’ compensation provides a safety net that is often essential to the financial stability of employees who have sustained work-related injuries. Workers’ compensation allows an employee to receive benefits from his or her employer or the employer’s insurance carrier in order to cover the medical costs or living expenses. To this end, employers are required to carry workers’ compensation insurance to make sure employees are taken care of. Workers’ compensation in California provides for a variety of different types of benefits, depending on the injury.

Total Temporary Benefits are the type of benefits that are paid when an employee’s work-related injuries are so severe that he or she is completely unable to work, or where the employer is not able to provide accommodations to allow the employee to return to work under necessary temporary restrictions. This type of claim is paid at the rate of two thirds of an employee’s weekly earnings, up to a maximum of $1172.57  in 2017.

Temporary Partial Disability is designed for injured employees who are able to return to work, but not to the extent to which he or she worked before sustaining an injury. For example, if an injured employee is only able to work part-time instead of full-time, he or she may apply for this type of benefit. In such a case, an employee would be entitled to benefits that are proportionate to his or her disability, and he or she would be entitled to two thirds of the difference between what the employee made before the injury and after the injury.

Permanent partial disability is available once an employee has reached the maximum recovery and is able to return to work, but with limitations. The amount of disability paid to the employee is determined according to a statutorily scheduled amount. The length of the disability payments will be determined by the percentage of the disability.

Total permanent disability can also be available, although it is rare. If an employee is completely disabled, such as no longer has the use of arms or legs or has gone blind, then he or she may  receive disability payments for life. Finally, death benefits could potentially be available if an employee dies as the result of a work-related injury.

Workers’ compensation is a vast system, and you need an experienced attorney to walk you through it. I have extensive experience assisting my clients and their business in all stages of workers’ compensation claims. Contact me today at (714) 516-8188 to talk about your options and your business.

Social Security and Workers’ Compensation

In California, as well as across the nation, employees sustain work-related injury every day. When this happens, employees may be eligible to file a claim for workers’ compensation against their employer in order to pay for the medical costs associated with their injury, as well as some other stipends in some situations. California employers are required by law to carry workers’ compensation insurance in order to make sure that workers are adequately compensated when they sustain qualifying work-related injuries. Workers’ compensation provides an alternative to litigation and help to streamline the process, and by operating outside of the traditional court system, prevents the courts from having dockets clogged with workers’ compensation issues.

Social Security disability is a separate system, although it also is designed to assist people who are unable to work. The essential difference between Social Security disability benefits and worker’ compensation is that workers’ compensation is designed to provide compensation for work-related injuries. An individual who is injured outside of his or her employment may not receive compensation under workers’ compensation. Conversely, Social Security disability may allow an individual to seek to make up for lost income when he or she has an injury or illness that occurred outside of employment but still prevents the individual from working.

There are some occasions wherein a person may apply for and receive both workers’ compensation benefits and Social Security disability benefits. The first requirement is that you must be injured or expect to be injured for at least a year plus a day. A worker who has a terminal illness could also qualify. An injured worker must also have paid in to the Social Security system for a minimum amount of time, which is typically at least ten years. In such a situation, an injured worker could potentially receive both types of benefits at the same time. It should be noted, however, that the amount an injured employee receives through Social Security may be at least partially reduced by the amount received through workers’ compensation. This is different than unemployment benefits, as typically an injured worker may not draw both unemployment benefits and workers’ compensation at the same time.

 If you have questions about how to make your workplace safer and safety committees, contact me today at (714) 516-8188. We can talk about protecting your employees from injury, and your business from future litigation.

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.

Effectiveness of Workers’ Compensation Reform Law

In August 2012, the California Senate passed Senate Bill 863. The governor signed it into law in September 2012. The law made important changes to the California workers’ compensation system in a variety of different areas. These changes included such issues as the amount of weekly benefits for permanent disability, changes to supplemental job displacement, and creation of a “return to work” fund. The bill also introduces the idea of independent medical review to resolve medical treatment disputes, improved medical provider networks, and changed regulations regarding liens.

In the summer of 2015, the Department of Industrial Relations and its Division of Workers’ Compensation released a report concerning the progress and effectiveness of the new reforms. The report showed that the cost of workers’ compensation had dropped. The Department of Insurance adopted advisory premium rates in May 2015 which were five percent lower than previously. The report also showed that workers who had received work-related injuries were also receiving increased benefits. The report recited that before the legislation was reformed, the weekly benefits for permanent disabilities was between $130 and $270. After the legislation, the range was increased to be between $160 and $290. The report also determined that as of June 2015, the DIR had issued 370 checks under the return-to-work supplement program, totaling almost two million dollars.

The report went on to discuss other areas of the legislation. The Independent Medical review program was created to allow physicians to individually review the necessity of disputed medical treatments provided to the injured employee, in an attempt to reduce fraud. The report found that the IMR was functioning well and was issuing its decisions within the statutory timeframe. The study also determined that the law was helping with the commitment to evidence-based medicine, through the use of and adjustments to the Medical Treatment Utilization Schedule, which creates a set of parameters for appropriate medical care.

 

California continues its commitment to adjusting the workers’ compensation system by passing new legislation. In addition to the changes in 2013, many new laws also came into effect at the beginning of 2017. Call me today at (714) 516-8188 for an appointment to discuss your business and the changing workers’ compensation system.

How the Employer Can Smooth the Claims Process

As an employer, it is important to understand your responsibilities under the California workers’ compensation system. Unfortunately, the system can be complicated and confusing. No employer wants to hear that his or her employee has suffered a work-related injury. However, if certain steps are taken before the injury has happened, then a business may smooth the claims process. These steps can help take out some of the confusion and stress that typically accompany any involvement with the workers’ compensation system.

The first steps should be taken before an injury actually happens. Reviewing your safety procedures, implementing a safety program, and creating safety committees are all ways that you can make sure that your workers are as safe as possible. A business owner should also make sure that proper training is provided not only to new workers but also existing employees and managers. Create a written guidebook for managers to review and learn so that they all understand the steps that must be taken in the event that an employee does sustain a work-related injury.

If an employee is injured on the job, the employee should be provided immediate and appropriate medical attention. Even if an employee tries to downplay the severity of the injury, he or she should be encouraged to obtain assistance. Ignoring injuries can exacerbate the condition, leading to higher costs for the business because of aggravated injury. This is especially the case where soft-tissue injuries are concerned. Discuss possible accommodations for the worker with him or her, as well as the treating physician, where appropriate.

The claim should be immediately reported to the insurance carrier. If there are witnesses, their statements should be taken promptly, while their memories are fresh. Similarly, all the paperwork required by your insurance carrier needs to be completed promptly. Delaying this essential paperwork will only prolong the process. Business owners should be involved and diligent in this process, and review the details in the paperwork to ensure accuracy. It can also be important to stay engaged and interested with the injured employee. This can help to get a more precise idea of the nature of the injury, different accommodations that should be made, and when he or she would be likely to be able to return to work.

The workers’ compensation process can be confusing, and you need an experienced attorney to help guide you through the claims process. Contact me today at (714) 516-8188. We can review your business and make sure that you are doing all you can to smooth the claims process.

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.

Short-Term Employees and Psychiatric Injury

Workers’ compensation laws cover a wide variety of work-related injuries to employees in the state of California.  Among the types of injuries that are covered by the California Labor Code are psychiatric injuries.  California Labor Code Section 3208.3 states that a psychiatric injury sustained at work may be compensable under workers’ compensation claims.  However, subsection (d) of the statute provides that in order to eligible for compensation of a psychiatric work-related injury, the employee must have been employed by the business for at least six months.  An exception to that rule is if the injury was the result of “a sudden and extraordinary employment condition.”  The purpose of the six month requirement is to prevent questionable claims for psychiatric injury by brand new employees when the psychiatric injury is a result of stressors common to that profession.

In Travelers Casualty & Surety Company, et al. v. Workers’ Compensation Appeals Board and Mark Dreher, the court of appeals addressed a case involving both physical and psychiatric injuries.  In that case, Mr. Dreher had been working for his employer for 74 days when he slipped and fell, sustaining numerous physical injuries.  He also stated he had psychiatric injuries, in the form of depression and panic attacks.  The WCJ denied his claim for psychiatric injury.  It held that § 3208.3(d) prevented him from recovering for his psychiatric injuries because the injury was not the result of an “extraordinary employment condition.”  The Court of Appeals recited that other cases have found that extraordinary employment conditions may include such incidents as a gas explosion or workplace violence.  These are not routine stressors or employment events, and therefore do not qualify as extraordinary conditions for the purposes of the statute.  Mr. Dreher argued that his injury was extraordinary due to the catastrophic and serious nature of his injuries.  Mr. Dreher suffered a fractured pelvis, in addition to neck, shoulder, leg, and knee injuries.  He had a sleep disorder, gait derangement, and headaches.  He required many surgeries, including to repair pelvic fractures and a torn meniscus.  Despite this extensive treatment list, his pain and disabilities were not totally cured.  Even though the Court recognized that Mr. Dreher had been severely injured, it held that this did not support a finding of extraordinary employment conditions.  The Court stated that the severity of the injury was not a component of whether or not the employment conditions were extraordinary.  His psychiatric claims were accordingly denied.

Short-term employee claims can create special issues in workers’ compensation.  I have experience in guiding my clients through this type of case.  Contact me today at (714) 252-7078 to talk about your business and the issues facing you.

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