What is Temporary Disability?

No employer wants to see his or her employees get injured, and employers take many admirable steps to prevent this from happening.  Unfortunately, work-related injuries will happen despite the best precautions and most careful of training schedules.  In the event that a worker does sustain a work-related injury, the injury will be classified as either permanent or temporary.  The classification of injury will have long-reaching effects for both the employee and the employer.

Temporary disability benefits will be available to an employee who has sustained a work-related injury while he or she is temporarily medically disabled and is prevented from returning to work due to the work-related injury.  These benefits are payable to the employee at the rate of two thirds of the regular wages of the injured employee.  There is a maximum benefit set out by California law.

There are two types of temporary disability benefits available.  One is Temporary Partial Disability (TPD) and the other is Temporary Total Disability (TTD).  TPD benefits are appropriate and available for those workers who have sustained a work-related injury, cannot return to his or her normal employment, but can work in some sort of modified position or capacity.  These benefits are paid at the rate of two thirds of the balance between what a worker normally earns and what he or she is earning in the modified position.  For example, if a worker typically makes $300 per week, but makes only $200 per week in the modified position, the difference between the two is $100.00.  Two thirds of $100 is $66.67.  The injured worker would receive the pay check of $200 per week plus $66.67 in TPD benefits. Note that there is a maximum for benefits set by California law.  If the modified salary is already higher than these maximum amounts, the worker will not be entitled to receive TPD benefits.

TTD benefits will be available to an injured employee where a doctor has determined that the worker is unable to return to any work for at least three days.  The TTD benefits are payable until the worker is able to return to regular work.  The benefits would also end if the employee is able to return to modified work in the event the employer offers such work.  Once the injury becomes “permanent and stationary,” as determined by a doctor, the TTD benefits will end, even if the worker has not returned to work at that time.

Employers should make sure they have a firm understanding of the different types of disability benefits.  Call us today at (714) 516-8188 for an appointment to discuss your business and workers’ compensation benefits.

Reducing Your Business’ Workers’ Compensation Costs and Liability

Every employer should maintain the important goal of reducing work-related injuries to their employees as much as possible.  Not only is this the ethically and morally right step, but it can prove to help an employer with their bottom line.  By taking steps to reduce work-related injury, an employer may be able to reduce the workers’ compensation premiums paid, the risk of serious and willful claims, or the risk of a 132a issue arising.  There are some good steps that any employer can take to reduce his or her business’ workers’ compensation costs and liability for future costs.

First, almost all employers are required to maintain workers’ compensation insurance in the state of California.  There are some exceptions, but by and large, failure to adhere to this requirement can result in hefty penalties, both civil and criminal, for an employer.  Like shopping for health insurance or life insurance, a business owner should get more than one quote for workers’ compensation insurance.  Getting competitive quotes can help to reduce the ultimate cost of insurance premiums.

Second, an employer must pay special attention when submitting insurance information.  This is two-fold.  An employer must first be accurate when submitting information to the insurance company to purchase the policy, as well as keep the information updated.  Moreover, when submitting information about any work-related injury to the insurer, the employer must also be certain to submit accurate and detailed accounting of what happened, together with the necessary paperwork and witness statements.  Although an employer may be initially convinced that not reporting all his or her employees for the premiums or maybe omitting certain details of an injury will help reduce the up-front cost, this is fraud and can ultimately cost the employer much more in penalties.  It   can also end up resulting in no insurance at all to help with the costs.

Third, an employer can implement a good, solid safety program.  Some employers choose to set up safety committees made up of employees, to help create safety policies as well as help implement safety programs.  Rotating the members on the committee as well as making changes to a safety program on a regular basis can help keep the program fresh and keep employees from becoming complacent.

Finally, an employer can create an incentive program to adhere to safety standards.  Financial bonuses, trips, or extra time off for meeting certain safety goals can help create a work-place atmosphere that encourages adhering to safety standards.

If you have questions about how you can reduce your business’ workers’ compensation costs and liabilities, contact me today at (714) 516-8188.  We can discuss your business and what we can do for its financial future.

Defending a Serious and Willful Claim

When an employee sustains a work-related injury, an employer may very well be on the hook for the costs of medical care for the injury through the workers’ compensation system.  The workers’ compensation system is designed as “no fault” system, meaning that in order to receive compensation for the injury, the employee does not have to make any demonstration that the injury was somehow the fault of the employer.  In some limited situations, an employee may make an additional claim under the “Serious and Willful Misconduct” provisions of California Labor Code § 4553.  This code states that if an employer is   found to have caused an employee’s injury through “serious and willful misconduct” they will be ordered to pay an amount that is equal to half the value of all the benefits paid to the employee as a result of the injury.  Clearly, this can amount to a large amount of money.  Moreover, an employer cannot insure against serious and willful claim.  Accordingly, it is important that employers have a firm understanding of how to defend against such a claim.

The most obvious way is to make every effort to make sure that such a claim is never made at all.  An employer can take these steps by being vigilant about the condition of the work place.  Repairs and renovations necessary to keep a worker safe should be promptly made.  Employee complaints about safe working conditions should be reasonably heeded, and an employer should make repairs to working conditions when necessary.

That aside, an employee must prove that an employer failed to act, even though the employer had knowledge that a serious injury would probably result in order to prevail on such a claim.  Therefore, to defend against a “serious and willful” claim, a defense may focus on several areas.  An employee must demonstrate that an employer knew that the danger existed.  A good defense to this will for an employer to be meticulous about documenting each and every report from any employee complaining about a working safety condition.  If no employee every made a complaint about the condition that caused the injury, it could be difficult to prove that an employer knew of the risk.  Another way to defend against such a claim is to document the steps that the employer took in order to improve the risk of injury.  If an employer had taken steps to make sure that no injury would occur, this will provide an excellent defense, as an employee needs to prove a failure to act, not a failure to act appropriately.

Serious and willful claims are serious, and you need an experienced attorney to help you navigate these claims.  We can review your business together to help you with any claim your business is facing.  Contact us today at (714) 516-8188 if you have questions about Serious and Willful Misconduct Defense.

Do I Have Alternatives to Carrying Workers’ Compensation Insurance?

Workers’ Compensation is a vast and often complex system. The goal of the entire set of laws is to protect both the employees and the employer. When an employee sustains a work-related injury, the workers’ compensation system provides a method by which the employee may receive payments for medical treatment and for disability payments and also by which the employer may be insulated from a costly law suit. To make sure the employees receive the compensation that they need following such an injury, California law requires that employers carry workers’ compensation insurance. Some employers find this requirement burdensome, and frequently ask whether there are any alternatives to carrying workers’ compensation insurance. It is first essential to understand that the California requirement to carry insurance is strict, and failure to abide by its provisions can result in both civil and criminal penalties. That being said, there are some limited situations in which an employer may have some alternatives to carrying workers’ compensation insurance.
One alternative to using a traditional insurance company is for an employer to purchase insurance through the State Compensation Fund. This may be an appropriate and essential alternative for those employers engaged in a high-risk business. Such high-risk businesses may be turned away from traditional insurance agencies, or the premiums may simply be too high. For an employer with this problem, seeking options from the State Compensation Fund may be the answer. State Fund is required to offer coverage to any business, although the cost may be higher than an Employer would find with another Insurance Company.
Some employers may also choose the option of being self-insured. To become self-insured, an employer must first apply to the Office of Self-Insurance Plans for approval. The OSIP will evaluate the application and the business for financial strength and stability, the proposed benefit delivery system, and whether the business is suitable to participate in self-insurance. The financial requirements are that there must be $5 million in shareholder equity, an average net profit of $500,000 per year for each of the last five years, and certified, independently audited financial statements must be provided to verify these claims. If the company has affiliates or subsidiaries, each of those must file its own application to become self-insured.
There are some limited circumstances in which an employer may not have to cover certain workers under workers’ compensation insurance at all. These exceptions would apply to independent contractors or certain types of board members in closely held corporations. Before assuming that these exceptions apply to your business, however, you need to consult an attorney.
California requirements to carry workers’ compensation insurance are strict and the penalties are harsh. Before making these decisions for your business, you need to consult an experienced attorney. Contact me today at (714) 516-8188 to more thoroughly review the requirements for your business.

Car Accidents and Workers’ Compensation

According to the United States Census Bureau, Los Angeles County has the highest percentage of people commuting from out of county in the United States.  In addition, the commute to work for workers in and around Los Angeles County was higher overall than the national average, especially in the category of workers who commute at least an hour.  After workers arrive at work, it is extremely common for the driving to continue.  Workers make deliveries, go to clients’ homes, run courier services, drive trucks, and an enormous variety of other jobs which require vehicular transportation.  With so much driving going on, there are bound to be accidents.  In some cases, a car accident may be covered by workers’ compensation.

 Workers’ compensation provides a means for workers to obtain compensation when they have sustained a work-related injury.  Accordingly, when there is a car accident, the inquiry becomes whether the accident while the employee was engaged in a work-related activity.  Some examples of work-related activities would be driving to make a delivery or driving to a client meeting, running errands on behalf of the business such as picking up office supplies, or going to a service call.  All of these activities are within the scope of the employee’s job.  In other words, an employee is “on the clock” during these times, and going to the destination is necessary to complete their duties.

 What is not generally included are times that an employee is not engaged in work-related activities.  These would include running personal errands, going to lunch, or your commute to or from work.  These are times that you would generally not be getting paid for, and are not in the scope of an employee’s work-related duties. Therefore, if an employee sustains an injury during a car crash at times like those, it is not considered a work-related injury and is not compensable under workers’ compensation.  This is generally what is known as the “going and coming rule.”  In other words, if you are coming to or going from work, that is not generally covered under workers’ compensation.  The “going and coming rule” is not enunciated in the California Labor Code, and instead has been created through a series of cases.  There are many exceptions to the rule, as well, so employers should be cautious as to whether an exception applies.

 If you have questions about car accidents and whether your business is liable under workers’ compensation, contact me today at (714) 516-8188. Let’s talk about your business and its future.

Larsen v. Securitas and Violence in the Work Place

The Occupational Safety and Health Administration reports that over two million workers are victims of workplace violence every year.  This often comes in the form of a worker being assaulted by another employee or a client or customer.  When this occurs, in some cases, a worker may seek to receive compensation for injuries through workers’ compensation.  The workers’ compensation system has certain exceptions and rules for work place violence.  One of these special provisions can be found in California Labor Code 4660.1.  This code provision provides that the impairment rating for a worker’s injury shall not be increased for sleep dysfunction, sexual dysfunction, or psychiatric disorder.  An exception to this rule is if the worker was a victim of a violent act.

In the May 2016 case of Deborah Larsen v. Securitas Security Services, the issue became what constitutes a violent act for purposes of the exception under 4660.1.  In that case, Deborah Larsen was acting as a security guard under the employ of Securitas.  She was performing her typical duty of walking patrol through a parking lot when she was hit by a car and sustained injuries.  She claimed that part of the injury included psychiatric disorder.  The employer did not contest that she sustained a work-related physical injury or that she was entitled to compensation as a result.  Instead, the employer argued that she was not entitled to compensation for the psychiatric injury.  Ms. Larsen argued that she was entitled to compensation under the violent act exception contained in 4660.1(c).  The WCAB noted that Ms. Larsen was “hit from behind with enough force to cause her to fall, hit her head, and lose consciousness.”  The Workers’ Compensation Appeals Board determined that this was sufficient to constitute a violent act.  The WCAB also determined that a violent act under 4660.1(c) is not required to be an act that is criminal or quasi-criminal in nature.  Instead, “it may include other acts that are characterized by either strong physical force, extreme or intense physical force, or are vehemently or passionately threatening.”

Another recent case also spoke to the issue of violent injury, and found that the violent act exception did not apply where the psychiatric injury was the result of the industrial accident and not as a result of the compensable physical injury.

If you are an employer and have questions about violence in the workplace in relation to workers’ compensation, call me today at (714) 516-8188. We can discuss your business, workplace violence, and workers’ compensation.

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

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.

Hotel Cleaning Firm Charged with Workers’ Compensation Fraud

There have been many recent attempts and moves by California lawmakers to crack down on workers’ compensation fraud. Harsher penalties, new investigatory bodies, and restrictions on who may participate in the workers’ compensation medical system are all examples of recent and important steps that legislators have taken to reduce fraud and its attendant burden on the California legal system and tax payers. Fraud can come in many forms, including failure to report all of the employees to insurance carriers. In 2015, a case occurred which really highlights the fact that addressing fraud is an essential goal for California lawmakers.

In this case, a married couple, the Kwons, owned a business called Good Neighbor Services. The business had offices in San Francisco, Santa Barbara, Los Angeles, Orange County, San Diego, as well as in Nevada and Georgia. The company was engaged in providing cleaning services to big-name hotels, such as the Ritz, Omni, Marriott, and Sheraton. However, the Kwons were not following the requirements of California workers’ compensation law. They were accused of concealing the existence of at least 800 employees. The purpose of this law was not only to avoid paying payroll taxes, but also to avoid carrying workers’ compensation insurance for all these people. They were further accused of threatening to fire any employee who was injured on the job. The grand jury ultimately indicted both of them, and they faced up to thirty one years in prison if convicted of all of the charges.

At the end of December 2015, the husband of the team pleaded guilty to seven felonies. These included insurance premium fraud, tax fraud, as well as involvement in a scheme that was constructed to avoid paying premiums and employment taxes. He stipulated to serving an eight year prison sentence, and also to paying restitution in excess of five million dollars.

In December 2016, Ms. Kwon also pleaded guilty. She pleaded guilty to two counts of premium fraud and two counts of employment tax fraud. Her prison sentence was four years and eight months. She also had to pay restitution in excess of five million dollars. This restitution went to both insurance carriers and the Employment Development Department.

 

Workers’ compensation fraud is a serious crime and carries justifiably heavy penalties. If you are an employer and have questions about your obligations under California law, call me today at (714) 516-8188. We can discuss your business and your future.

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