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.

What is the “Coming and Going” Rule?

Workers’ compensation, like other areas of law, has a dizzying array of rules and exceptions that may not be directly written out in the Labor Code or other areas of California statutes.  Instead, these rules may have been created through the courts and can only be found in case law.  One such rule is called the “Coming and Going Rule.”  This rule is based on a simple principle: an employee who is injured during the regular commute to or from work may not recover for his or her injuries under workers’ compensation.  Similarly, a person injured by the employee during that commute may not seek to recover for the injuries against the employer.  The reasoning behind the rule is that the employee is not acting within his or her scope of employment during a normal commute.  During that time, the employee is not performing a service for the employer, and the employer is not receiving a benefit from the employee’s actions.  Accordingly, the employee is not acting within the scope of his or her employment, and any injury sustained is therefore not work-related for the purposes of workers’ compensation.

Like any other area of law, there are exceptions to the “going and coming rule.”  One such exception is called the “required vehicle exception” and is illustrated by a case called Betts v. YMCA of the East Valley (2015 Cal. Wrk. Comp. P.D. LEXIS 248).  There, the worker was injured while driving from the main YMCA office to her own remote work site.  The WCAB determined that the going and coming rule did not apply because an express condition of the claimant’s employment was to use her own vehicle to travel between the office and the remote site, and she was paid mileage for these trips.

Another exception is called the “Personal Comfort Exception.”  In an illustrative case, an employee was injured in a car accident.  The employee had gone to a convenience store to buy cigarettes during his shift, and had offered to buy snacks for coworkers while there.  Trips to this store were condoned by the employer.  The personal comfort exception applied to allow the injured worker to apply for workers’ compensation benefits because the worker had the employer’s permission, and also the employer received the benefit of the other employees remaining at work while the injured employee retrieved snacks on their behalf.

The “coming and going rule” is just one example of the nuanced regulations that surround workers’ compensation.  If you have questions about workers’ compensation, let me answer them.  Call me today at (714) 252-7078 to discuss your business.

Completed and Accepted Doctrine

The “Completed and Accepted” Doctrine has a long history in the State of California.  Over fifty years ago in Kolburn v. P.J. Walker Co. (2d Dist. 1940) 38 Cal. App. 545, a California appeals court established this doctrine.  This rule states that where an owner accepts the completed work under a contract, the contractor is not thereafter liable to other people who sustain damages arising from allegedly negligent construction.  The reasoning behind this is that once the contractor has finished the work and the owner of the property or item has accepted the work as complete, the chain of negligence is broken.  From there on out, it is up to the owner to maintain the property or work in good working condition and to prevent third parties from being injured.  Essentially, the owner has “accepted” the work as “complete,” and thereafter the burden shifts to the owner.

An illustration of how this doctrine could apply to a workers’ compensation case is provided from a recent unpublished opinion out of Los Angeles.  In that case, the plaintiff worked for Keogh Electric Corporation (“KEC”) on a project to build a distribution panel on top of a concrete pad for Kramar’s.  The panel and pad were installed in August 2012, and the plaintiff texted his boss at KEC that “Kramar is done.”  Kramar paid KEC for the work, and no other person from KEC was ever seen doing additional work on the project.  The plaintiff then accepted a job from Kramar.  In September 2012, the plaintiff tripped and fell into the panel and was injured.  He then sued KEC for negligence.  The plaintiff’s workers’ compensation insurance carried, Insurance Company of the West, intervened.  KEC argued that the plaintiff could not sue, and cited the Completed and Accepted Doctrine.  The appellate court agreed that the work was completed and accepted, and so the plaintiff’s lawsuit as well as that of the workers’ compensation insurance carrier was dismissed.  What this means is that because the work was completed and accepted, the plaintiff could not sue the original contractor for his injuries.  He was required to go through workers’ compensation against his current employer, if possible.  Moreover, the insurance carrier would not be able to recover its expenses paid out under the workers’ compensation claim against the original contractor.

Workers’ compensation can result in an unusual set of facts leading to an unexpected result in terms of who should be held liable for an employee’s work-related injuries.  If you have questions about workers’ compensation and your company’s liability, contact me today at (714) 252-7078 to talk about your business.

Medical Mileage Rate Decline in 2017

After an employee suffers a work-related injury, he or she will need to attend many appointments associated with the workers’ compensation claim and case.  Some of these appointments will, of course, be medical appointments in order to diagnose and treat the work-related injury.  The medical mileage applies to the travel that an injured worker conducts that is related to the medical treatment or evaluation of the work-related injury.  Under the California Labor Code § 4600, the claims administrators for the workers’ compensation case are required to reimburse an injured worker for the mileage expenses.  The rate to be reimbursed is to be set in accordance with the Internal Revenue Service guidelines.  On December 13, 2016, the IRS released new guidelines with respect to the reimbursement for mileage.  As of January 1, 2017, the standard mileage reimbursement rate is 53.5 cents per mile, which is a decrease of .50 cents per mile.  This new rate applies even for injuries that occurred before January 1, 2017, and even for workers’ compensation claims and cases that were already ongoing.

Employers and administrators should note that although the rate has changed for any travel occurring on January 1, 2017 or later, mileage that occurred before that date should still be reimbursed at the previous rate.  The rate for the year of 2016 is 54 cents per mile.

The reason that the IRS decided to modify the mileage reimbursement rate is the result of a study that was conducted on their behalf.  The study examined the costs of owning and operating a vehicle, and takes into account both the fixed and variable costs associated with driving a car.  Based on this study, the IRS determined that the mileage reimbursement rate of 54 cents per mile was too high, and adjusted the rate downward.

Since 2008, the rate for medical mileage reimbursement has changed many times.  As a result, in order to assist in the accurate payment of the mileage expenses, the California Department of Labor provides forms for the mileage expenses.  The forms reflect the proper rate of reimbursement, and there are forms for expenses incurred both before and after January 1, 2017.

If you have questions about the proper rate or the nature of medical mileage reimbursement, contact our team today at (714) 252-7078.  We can discuss your business and the claims you have.

Overview of the Workers’ Compensation Process

Law suits can be a long and confusing process. Workers’ compensation law and claims are no exception. The fact that the process does not typically operate like a typical lawsuit makes it even more convoluted and obscure to the typical person off the street. This can really add to the stress and confusion experienced by the people involved in a workers’ compensation suit. A basic understanding of the process can help reduce stress and help you manage the process more efficiently.

The first thing that will happen must be the initial claim. After a worker sustains a work-related injury, he or she will need to make a detailed and accurate account of the related injury. The employer should also take reasonable steps to make sure the report is truthful and complete. This includes determining if there were witnesses to the event. If there were witnesses, the employer should be meticulous about gathering and maintaining written statements, and providing all of this information to the attorney responsible for defending and managing the workers’ compensation claim on the business’s behalf.

After the insurance company receives the statement, an investigator may  be sent out to examine the circumstances of the injury. The investigation will most likely include an on-site survey of the injury site but also an inquiry into the medical records of the injured worker. The investigation will need to look into the extent of the injury and whether it is long term or short term. These issues will obviously have a large impact on the nature, amount, and duration of the benefits awarded to the injured worker.  Following an investigation, there will likely also be an exchange of documents and information that is referred to as “discovery.”  During discovery, both the employer and the employee must exchange certain requested information, including medical records, employer reports, witness lists, and other pertinent material.

After the investigation, if the claim is still disputed, it may go before the Workers’ Compensation Appeals Board. The WCAB will hear the evidence from both sides. The board can then make a decision about whether the injured worker will receive benefits and for how long. If either the employer or the employee disagrees with the results, it is possible to appeal the finding to a higher court.

If your business is facing a workers’ compensation dispute, you need an experienced attorney on your side.  Contact me today at (714) 252-7078 to discuss your business and your case.

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