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 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.

Illegal Immigration and Workers’ Compensation Claims

The interaction between federal immigration law and state law can be complex. This applies even with workers’ compensation issues. California Labor Code Section 1171.5 provides that “all protections, rights and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status . . . who have been employed” in California. Therefore, it is clear that even if a worker is undocumented, he or she is probably still entitled to workers’ compensation. The exception of “any reinstatement remedy prohibited by federal law” was included to prevent California labor provisions from conflicting with federal immigration law. The question can then become exactly what benefits is an employer required to extend when the injured worker is an illegal immigrant?

 

Case law indicates that an undocumented worker may not be entitled to temporary disability payments. In Cudibo v. Leemar Enterprises and Esparza vs. Barrett Services, it was determined by the WCAB panel that the undocumented workers in those cases were not entitled to temporary disability benefits. There, it is important to note that the employers had information demonstrating the worker’s undocumented status. The employers were also able to show they were willing and able to provide a return to regular or modified work. However, it was determined that the employers were not liable to pay temporary disability even though the worker’s doctors had released them for work, as the employers were unable to allow them to return to work, due to their undocumented status.

 

Normally, an injured worker may be entitled to a Supplemental Job Displacement Voucher (SJDV) if the injury causes permanent partial disability and the employee does not return to work within sixty days of the termination of temporary disability. The purpose of the voucher is to provide educational school or supplemental training for the injured worker, which the worker may seek at state-approved schools. Under Labor Code Section 4658.5, the amount of the voucher will cost 6,000 for injuries occurring after1/1/2013.

 

Therefore, when combining federal and state law, is the employer responsible for providing an SJDV if the employer is precluded from allowing the employee from returning to work due to the worker being an undocumented worker?  Logically it would appear that as an employer would not be allowed to permit the worker to come back to work. Therefore, the injured, undocumented worker may not be entitled to an SJDV if appropriate work is available. In the absence of guidance from case law, this area is unresolved.

 

This area of the law is not as developed and clear as other areas involving workers’ compensation. I am thoroughly experienced, and can answer your questions about your rights and responsibilities regarding undocumented workers and workers’ compensation claims. Contact me at (714) 516-8188 or email wcabdefense@hotmail.com to set up a consultation to discuss your business and its individual needs.

Risks and Penalties for Failure to Maintain Proper Insurance in California

California law requires that any business with at least one employee or more carry workers’ compensation insurance. The law also provides both civil and even potentially criminal penalties for failing to carry it. Although some businesses may believe insurance is too expensive, the potential penalties for failing to carry it can be severe.

If a business is found without workers’ compensation insurance during an inspection, the Division of Labor Standards Enforcement (DLSE) must serve the business with a stop-work order. This means that the business cannot continue to use employee labor until it purchases the required insurance. If the business ignores the order and continues to use employee labor anyway, this is a misdemeanor. It is punishable with up to 60 days in jail and a fine of up to $10,000. The DLSE can also assess a penalty of $1,000 for each employee, up to $100,000.

In addition, a business can be assessed a monetary penalty. This penalty will be the greater of 1) twice the amount the business would have paid in insurance premiums for the time that the business was uninsured, or 2) $1,500 per employee. Obviously, this penalty can become very hefty, very quickly. There are exceptions to this rule for certain types of partnerships and corporations, depending on who is actually performing the work for the business.

The business can also face heavy repercussions from an injured employee. If an employee is injured on the job while working for an uninsured business, then the business is responsible for all of the employee’s bills related to that injury. The employee is also allowed to file a civil suit against the employer in addition to a workers’ compensation claim.

If the employee files a workers’ compensation claim before the Workers’ Compensation Appeals Board, there could be even more additional penalties assessed against a business that was illegally uninsured at the time of the employee’s injury. If the employees injuries are found to be compensable, then the business may be assessed a penalty of $10,000 per employee who was working for the business at the time of the employee’s injury. Even if the employee’s injuries are found to be non-compensable, the business may still be assessed $2,000 per employee. There is also a 200% assessment for any Premium, for up to 3 years preceding the injury.

It is clear that the risks and penalties for failure to carry the proper insurance can be severe. I can discuss the possible repercussions with you and help navigate you through the complexities of the California requirements for insurance. To set up a consultation to discuss your business, contact me at (714) 516-8188 or email wcabdefense@hotmail.com.

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