Medically Required Equipment

Workers’ compensation is a system established to help provide fair reparation and payment to employees who have sustained work-related injuries.  The variety of injuries meant to be covered under this system is broad, although not without some limitations.  In addition, the treatments covered by the workers’ compensation system range from physical therapy to acupuncture to prescription medication.  The type of treatment that is covered will depend heavily on what is prescribed by the employee’s treatment physician.  In some cases, a physician may determine an employee’s injury requires medical equipment to treat.

There are important differences between medical equipment and medical supplies.  The workers’ compensation system has borrowed the definition of “durable medical equipment” from the Medicare system.  Durable medical equipment means medical equipment that is reusable, and necessary for treatment of the employee in his or her home.  Note that this means certain items such as latex gloves or hypodermic needles would not qualify as DME, as they are not reusable.  Moreover, an electric scooter that the employee never uses in the home, but rather simply uses to get around the local grocery store also probably would not qualify.  Note that not all Medicare rules have been adopted by California in this area.

Under the workers’ compensation system, a physician may bill for and be reimbursed for dispensing medically necessary durable medical equipment.  The rate to be billed and reimbursed is capped at a particular rate established by California Labor Code 5307.1.  However, there is an exception for this if the DME device is a “dangerous device.”  A “dangerous device” is defined by California statute, and typically will be a piece of equipment that can only be dispensed with a prescription from a physician licensed in that particular field.  For dangerous devices, there is a different fee schedule or formula established by statute.

Employers should be wary, as unscrupulous individuals have exploited the provisions for DME billing.  For example, in 2014, several men were charged with many felony counts of conspiracy and submitting fraudulent claims after renting out DME in the workers’ compensation system, double billing and billing far above the actual value.  The men faced over fifty years in prison.

 

Durable medical equipment is covered under workers’ compensation, but you should consult an attorney to make sure you understand the obligations of your business.  Call us today at (714) 516-8188 if you have questions regarding Durable Medical Equipment.

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 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.

Public Service and Workers’ Compensation

Public Service and Workers’ Compensation

Every day safety officers risk their safety and their lives to help protect the community.  These safety officers include police, sheriffs and their deputies, highway patrolmen, and firefighters.  These people are in dangerous jobs and are more likely than most members of the public to sustain a work-related injury.  These safety officers have special entitlements and protections under the California labor code.

 

In most circumstances if an employee sustains a work-related injury, he or she will be able to recover temporary total disability benefits.  These benefits are available up to two-thirds of the employee’s salary, according to the limits that existed at the time the employee sustained the injury.  However, in the case of a safety office who sustains a work-related injury, according to California Labor Code 4850 he or she is entitled to disability payments of up to a year’s full salary, free from any income taxes, while he or she is temporarily totally or permanently disabled as a result of the work-related injury.  If a safety officer remains disabled after the year is over, the safety officer is still entitled to receive temporary total disability benefits at the standard state rate, even though the full salary is no longer paid.

 

Safety officers also have protection in that there are certain “compensation presumptions” that apply to them in certain circumstances.  This means that there are particular conditions and illnesses that will be presumed to fall under workers’ compensation laws.  Labor Code 3212 provides that for particular safety workers, the term “injury” shall include any hernia, pneumonia, or heart trouble that develops while the worker is in the service for their unit.  The compensable award for these injuries include full hospital, surgical, medical treatment, and other certain benefits.  These safety officers would include firefighters, sheriff’s deputies, members of the district attorney investigative unit, and fish and game wardens.  It should be noted that clerical staff are excluded from these protections. Firefighters are also afforded special protection for cancer diagnosis when the safety officer can demonstrate he or she was exposed to a known carcinogen during his or her service to the unit.  Safety officers also qualify for special protection when contracting tuberculosis or MRSA.

If you have questions about workers’ compensation and your business, contact me today at (714) 516-8188 to discuss them.  You need an experienced attorney to help you understand this process.

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.

Controlling Costs in Workers’ Compensation

Every business owner knows that keeping costs down in any area possible is essential to the growth of his or her business.  Wasting money and resources is never a good business practice, and it is crucial that any business owner stay on the alert for ways to reduce waste and costs.  The area of workers’ compensation is no exception to this rule.  Clearly the employer should not be looking for ways to get out of paying appropriate workers’ compensation claims, but there are legitimate and important other methods to help keep the cost of workers’ compensation down.

First, a well-thought out safety plan and program will help keep the employees from sustaining work-related injuries at all.  Employers should make sure that the employees have a good understanding of all safety procedures and protocols in the work place.  Creating a safety committee and changing the safety procedures on a regular basis to reflect changes in the industry or in the work place will also help reduce these costs.

Second, in the event an employee does sustain work-related injuries, the employer should take any available action to help that employee return to work as soon as possible.  Even though it is possible to have others fill in for the injured employee or even hire a temporary worker to fill the injured employee’s position while he or she recovers, this ultimately will probably cost the employer more money.  The employee has the expertise and contacts necessary to complete his or her job in a more efficient and straight-forward manner than a temporary worker who will have to be trained.  An employer should stay in close contact with the medical professionals and its workers’ compensation insurance company during the flow of the workers’ compensation case to make sure that the employer is taking any available steps to help get the employee back to work.

Finally, an employer should be open and honest with the workers’ compensation insurance company.  Being less than honest about the number of employees or nature of the work performed may cut costs on the front end, but when the insurance company discovers the deception, it can cost the employer much more than the original cost of insurance would have been.  Moreover, if the employer has an open discussion with the insurer about safety measures that are being taken, there is sometimes a possibility that such programs could help lower workers’ compensation insurance costs.

Ensuring compliance with workers’ compensation standards is essential for any business, but it does not have to bankrupt the company. Contact me today at (714) 516-8188 to talk about your business and what needs to be done.

Torts versus Workers’ Compensation – Can My Employees Sue My Business?

The workers’ compensation system is designed to provide a method by which an employee who sustains a work-related injury may obtain reimbursement for medical care and disability payments.  California is a “no fault” workers’ compensation system, so even if the employer or employee is not “at fault” for the work-related injury, an employee may still recover expenses and disability payments.  This is different than if the employee were to file a civil claim for negligence or an intentional tort.  In that sort of case, an employee would be required to go before a judge and prove the elements of his or her claim, which would always include a degree of fault on the employer’s part.  In the vast majority of cases, if an employee is injured at work, he or she is required to go through the workers’ compensation system in order to recover for the cost of injuries or obtain payment for temporary or permanent disability.  However, there are some limited situations in which an employee may choose to go outside the typical workers’ compensation system.

 

The type of suit that an employer should be most cautious of in this sort of situation is where an employee alleges that his or her injuries were caused by Serious and Willful misconduct on the part of the employer.    For example, if an employer is fully aware that using a certain chemical will cause injury to the employees working with the chemical but fails or even refuses to provide safety equipment for the employees, a Serious and Willful cause of action could be appropriate.  Clearly to combat this sort of claim, an employer should take all reasonable steps to make sure employees are safe and have the safety gear needed.  Employers should also speak with an experienced workers’ compensation attorney about “serious and willful” claims under the California Labor Code and how these claims can be avoided and defended.

 

An employee could also choose to sue a third party, meaning someone other than the employer.  An employee could choose to sue a contractor, a vendor, or the manufacturer of a faulty product.  If this is the case, the employer may want to get involved in that suit under the theory of subrogation in order to reduce any costs to the employer pursuant to any serious and willful claim made by the employee.

 

Workers’ compensation can be complicated, and it can seem even more so when an employee chooses to file an additional suit outside the system.  If you have questions about your business and how a civil suit interacts with workers’ compensation, call me today at (714) 516-8188.  I am experienced in helping my clients navigate these situations and look forward to talking with you about your business and possible solutions.

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.

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