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.

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.

Decreased Drug Spending in 2016

Workers’ compensation costs have steadily increased for years.  This is due in part to insurance premiums being on the rise for businesses.  Many factors contribute to the rise in premium prices, including the cost of medical services and prescription drugs.  The vast majority of workers’ compensation cases will involve some type of prescription drug treatment for the employee who has suffered a work-related injury. 

Opioid abuse is a widespread problem, with efforts being made across law enforcement agencies and the medical community to reduce the issue as much as possible.  Workers’ compensation systems have also started to recognize the problem and take important steps.  However, opioids are also some of the most expensive prescriptions with thirteen of the top twenty-five most expensive medications being types of opioids.  Although opioids can be an essential step in helping with pain management for an employee who has suffered a work-related injury, the CDC reports that the drugs are also highly addictive.  Some red flags for steps that could put a worker at heightened risk for opioid abuse are prescriptions that last longer than ten days or a second prescription, especially if written after thirty days.

One company has adopted strategies to address the opioid crisis including morphine equivalency doses.  They relate that payers who adopted the program saw a reduction of almost 25%.  The system involves point of sale review as well as drug utilization review to identify the use of long-acting opioids or therapy duplication.  This has also been combined with a notification system that provides notice to the payer if opioids fill exceeding certain thresholds.  Patient education as well as a program to discuss prescribing patterns with medical professionals to help reduce dangerous drug combinations.  Prescribers should be encouraged to prescribe the lowest dose for the shortest duration, optimally fewer than three days.  Prescribers should also be made aware of coordinating efforts with law enforcement and providers where necessary to help with addiction and fraud.  Using these techniques, there was a decrease in opioid spending of 13.4% and an overall decrease in drug spending of 7.6% in 2016.

Physician dispensed medication could be a source of increasing cost in the future as well.  When physicians dispense medication directly to the patient, there is no oversight at the pharmacy, which puts the injured worker at much higher risk of potential drug interaction.  This is especially true when a worker is seeing more than one doctor.  Drug interactions or addiction will keep the employee out of work longer and could have costly implications for him or her for the rest of his or her life.  Drugs delivered directly to a worker’s home, however, could save money by reducing costly channels such as those sometimes found at a retail pharmacy.

If you have questions about the workers’ compensation system and how your business should work to help reduce costs, you need to talk to an experienced attorney.  Call us today at (714) 516-8188 for an appointment to talk about your business.

Developing a Return-to-Work Policy

Workers’ compensation is designed to help get a worker who sustains a work-related injury recompense for their lost wages and medical expenses.  The worker wants to get back up on his or her feet and get back to work as soon as medically possible, in most cases.  Employers should be mindful of this and are obligated to help their employees by making certain accommodations for the injured worker.  This benefits both parties, as the employee can get back to work and the employer no longer has to worry about certain job duties needing to be covered by other workers.  To this end, employers need to work to develop a return-to-work policy that helps employees return quickly and safely to work.

An employer should take proactive steps to help an employee return to work.  This includes reaching out to the employee and his or her medical providers to determine the nature and the extent of the injury.  Employees and employers should keep an open dialogue about what is medically appropriate for the employee in terms of job duties and needed accommodations, and come to an agreement about what any type of modified duties will include.  This will necessarily include making sure that the medical providers agree with the restrictions and abilities of the employee.  An employer should research and evaluate the possible restricted work duties that are available in the business and make an offer of modified employment accordingly.  In the optimal situation, the employee will be able to remain in his or her original position with some accommodations that take the injury into account, but it may be necessary to assign him or her to a different position during the healing process.  After the employee starts on the new position, the accommodations should be monitored and modified as necessary.

Developing a plan to implement this return-to-work policy should be a group effort.  There may be several different people involved in this process, and an employer should keep in mind what other employees would be best suited to help with each step.  For example, the floor supervisor would be an excellent resource to ask about reasonable accommodations that are available, but may not be best suited to ask to retrieve paperwork from medical professionals.  Each step should be thoughtfully mapped with each employee knowing precise roles.  The employer should put particular emphasis on getting all paperwork done promptly and with a high degree of detail.

Implementing a return-to-work policy is an essential step for businesses and should be done with mindfulness.  Contact us today at (714) 516-8188 to talk about your policies and your business.

Making Sure You Properly Investigate an Injury

Making Sure You Properly Investigate an Injury

All workers’ compensation claims have one thing in common – they all start with an alleged work-related injury.  A savvy and conscientious employer will have procedures in place, ready to go for when an employee reports  an injury on the job.  These procedures include obtaining medical care, providing necessary forms and paperwork to the employee, and investigating the injury properly.  Failure to conduct a proper and thorough investigation of a work-related injury sustained by an employee could lead to much bigger problems down the road.

It is first essential to obtain a completely clear account of the accident directly from the injured employee.  This account should be in writing, and should provide as many details as the employee can recall.  Every step should be taken to get this written account as soon as possible following the injury.  By providing a description of the event and the injury early on, it will be much more difficult for an employee to fraudulently expand the injury at a later date.  For example, if an employee injures her hand during an accident, if she has already provided this written account, it will be much more difficult for her to later include her foot as part of a work-related injury.  Getting a clear account of the accident can also provide important feedback to an employer about how to prevent similar injuries to other employees in the future.

Another critical step is to obtain witness statements.  Like the statement from the employee, the witness statement should be in writing and gathered as soon as possible following the incident.  Witness statements will assist in rooting out inconsistencies between an employee’s claimed injury and what actually happened.  Having a supervisor review the witness and employee statements is also an important step.  The supervisor can provide important insight as to whether the claimed injury is an injury that is realistic or if it shows red flags of fraud.

If there are red flags, an employer may want to consider hiring a private investigator to look into the employee’s behavior outside of work.  An investigator can give the employer insight as to whether the employee is engaging in activities that are inconsistent with a claimed injury.

Although the vast majority of workers’ compensation claims are legitimate, it is very important to investigate each injury with as much detail as possible.  Contact us today at (714) 516-8188  to talk about your case and what investigative steps should be taken for your business.

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