Lost Wages and Medical Costs – What Type of Benefit Will My Employee Receive

The workers’ compensation system is designed to help protect and help both employees and employers.  The employer is protected because when an employee sustains a work-related injury, the employee can usually only recover benefits through the workers’ compensation system.  In other words, the employee typically cannot file a civil suit against the employer for negligence.  An employee is protected because he or she does not have to prove fault or negligence on the part of the employer in order to obtain benefits.  If you own a business, it is important for you to understand the types of benefits your employee may receive.

One of the most obvious types of benefits that the employee will receive is medical costs for treatment of his or her injury.  The medical treatment benefits will include the costs of treatment for an acute injury, such as going to the emergency room or emergency surgery.  What some employers fail to realize, however, is that the covered medical expenses will also include ongoing expenses, such as physical therapy, acupuncture, or medical equipment.  If the injury is a mental injury, such as post-traumatic stress disorder, the medical costs would also include psychiatric care.

Temporary disability benefits are another type of benefits that will be awarded.  Temporary disability benefits are designed to provide a replacement for the lost wages for the time during which an employee is not able to return to work after sustaining a work-related injury. An employee will receive two-thirds of his or her average weekly pay for up to 104 weeks within five years of the date of the injury.

Permanent disability is not designed to address the same issue as a temporary disability.  Permanent disability is designed to address a permanent loss of function that the employee experiences as a result of the work-related injury.  The amount the employee receives will depend on the degree of disability, as determined by medical professionals, up to two hundred ninety dollars a week.

Workers may also be eligible for job displacement benefits.  If a worker is permanently disabled and as a result cannot return to his or her job, then he or she may apply to receive a voucher for retraining.  The injured worker can go back to school to be trained for a new position.

We have extensive experience helping our clients understand the benefits in a workers’ compensation case and what that means for their business.  Call us today for a consultation

Workers’ Compensation and Medical Technology

Medical technology, expertise, and understanding have advanced substantially in the past decade.  The advancement of medical science provides potential cures and treatments in all areas of chronic and acute conditions.  When an employee sustains a work-related injury, workers’ compensation provides access to medical care to help address the injury and get the worker back on the job.  Advancements in medical technology can also mean changes in the way workers’ compensation treatment is handled.

One recent advancement in medical technology that can greatly impact workers’ compensation is a blood test that has been recently approved by the Food and Drug Administration.  This blood test can help to diagnose mild brain injuries by detecting particular proteins that are released into the bloodstream after such an injury is sustained.  The test is called the Banyan Brain Trauma Indicator.  The test is reportedly very accurate, with a 97% correlation rate with CT scan results.  However, the test must be done quickly, within 24 hours of the injury.

Another new test is called the Clustered Regularly Interspaced Short Palindromic Repeat, or “CRISPR.”  This genetic test will allow doctors to customize medications based on the individual patient’s genetic code.  Tailoring medication to the individual patient means that the medication can help target the exact work-related injury sustained by the employee, such as regenerating damaged joint tissue.

There are also efforts being made to develop wearable devices to assist with tracking rehabilitation of the employee.  These devices would be worn by an injured employee to make sure he or she is actually doing the physical rehabilitation efforts prescribed by a doctor.  This is important to make sure the employee is making important efforts to heal as quickly as possible and get back to work.  This would also help doctors in making further diagnoses, as the device could track other statistics, such as heart rate and blood pressure.

FaceTime and Skype are also helping with workers’ compensation.  With these technologies, physical therapists can remotely work with their patients.  By eliminating the requirement for an employee to go to an office physically, this could cut down on the amount of time an employee will have to be absent from work.

We have experience assisting our clients to understand their options regarding their employee’s workers’ compensation.  Contact us today for a consultation.

What You Need to Know About AB 1107

California lawmakers work hard to make sure that the state laws are reformed to best protect and serve the residents of California.  The labor code and workers’ compensation are not exceptions to these efforts.  Workers’ compensation is a complicated area of the law and one of the oldest social institutions in California.  This does not mean, however, that these statutes do not need updating and improving.  The California Assembly recently passed A.B. 1107 in an effort to improve the workers’ compensation process.

California Assembly Bill 1107 amends labor code 4610.01.  The purpose of the amendment is to reduce the delays sometimes facing injured employees in receiving medical treatment for their work-related industrial injuries.  The bill as originally filed was partially in reaction to a case called King v. CompPartners Inc.  In that case, an employee was harmed when his medication was withdrawn after a wrongful utilization review.  The injured employee then tried to sue the utilization review provider in civil court, not under workers’ compensation, because of the injuries and the wrongful withdrawal of his medication.  The California Supreme Court held, however, that the injured employee’s exclusive remedies were under workers’ compensation and the employee could not sue the utilization review provider outside of that framework.  The bill was originally filed with the aim of reducing administrative time as well as access to treatment for injured employees by exempting treating physicians from utilization review under specific circumstances.  The bill was later amended to provide that stakeholders may challenge utilization review conclusions.  Critics of the amendment are concerned that the amendment will just result in more litigation and legal gymnastics, which could reduce an injured employee’s access to care.  This is because the injured employee’s treatment will likely be delayed while waiting for the legal dust to settle.  Conversely, proponents of the amendment state that allowing stakeholders to challenge the result of a utilization review provides another much needed layer of oversight.  These advocates of the process point out that having additional oversight can help reduce the incidence of fraud in the workers’ compensation field, which could help save millions of dollars every year for Californians.

We have extensive experience helping business owners understand the changing law and how it impacts their business.  Contact us today for a consultation

Vouchers and Workers’ Compensation

The workers’ compensation system is designed to help provide income replacement for employees who have sustained work-related injuries.  The system also provides reasonable medical expenses related to the treatment of the work related injury, ranging from surgery, prescription medication, or medical equipment.  In some cases, the worker will be able to return to work quickly or may not even miss work at all.  In other cases, the employee may require extended medical care and may not be able to return to work for months, and when he or she does return reasonable accommodations may be necessary for the employee to return to work.  If the worker has been permanently disabled but is able to do some work, another type of benefit he or she can apply for is Supplemental Job Displacement Benefits, which come as a voucher.  The voucher is a non-transferrable voucher that are for injured employees who want to return to school or obtain additional vocational training.  This training or education must be obtained at a state approved or accredited school.

Injured employees wishing to receive these benefits must meet certain conditions to be eligible.  First, the employee must have a permanent partial disability as a result of the work related injury.  The employee also must not have been offered other work by his or her employer.  The voucher is worth up to six thousand dollars to go toward the payment of tuition and retraining to start the employee in a new line of work.  The voucher is meant to cover expenses such as fees, books, cost of occupational licensing or certification fees, up to one thousand dollars for computer equipment, and up to five hundred dollars for miscellaneous expenses such as transportation and uniforms.

If the employee has paid these types of expenses, he can submit itemized receipts showing payment of these eligible costs to the claims administrator.  This must be done before the voucher expires, which is two years after the voucher was issued or five years after the employee sustained a work related injury, whichever comes later.  Alternatively, if you present the voucher to the school or vocational counselor, they may receive payment directly from the claims administrator.  Whether you are being reimbursed or the school is receiving payment directly, payment should be complete within forty-five days of the expenses being properly submitted to the claims administrator.

If you have questions about the voucher system and what that means for your business, call us today.  We can help you understand the workers’ compensation system.

Time Limits in Workers’ Compensation

Most people understand that there are time limits in almost all types of legal cases, ranging from prosecution of domestic assault to suing for breach of contract.  Workers’ compensation is no exception.  There are time limits that need to be observed at many stages of the workers’ compensation case.  As an employer, you need to be familiar with some of these time limits to make sure you are properly observing the law and understand your rights and responsibilities.

The first time limit you should be aware of concerns the reporting of the injury.  When your employee sustains a work related injury, he or she is obligated by law to report that injury to you.  The employer is obligated to report the injury to the employer within thirty days of sustaining the injury or becoming aware of the injury.  The employee needs to fill out a DWC-1 claim form providing details about the injury.

Another essential time limit to be aware of is that reporting an injury to the employer is not the same as filing a claim for workers’ compensation benefits.  Under California labor code 4906(g), the injured employee is obligated to file an Application for Adjudication of Claim and Declaration with the workers’ compensation appeals board to start the case.  The worker must file this application within one year of the job-related injury or illness.  If the employee fails to meet this time limit, he or she may lose the right to file a case at all.  Once the case is commenced, there is no time limit on how long the case can last.  In the optimal circumstance, the procedure will go smoothly and it can be concluded without too much trouble.  The increasing use of alternative dispute resolution helps conclude cases quicker and with more efficiency than in the past.  If no settlement can be reached, however, the case can last for months or even longer.

There are some limited circumstances when the statute of limitations may be extended.  One common situation when this may happen is where the injured employee is under eighteen at the time he or she is injured on the job.  In that case, the statute of limitations is “tolled” and does not start to run until the injured employee turns eighteen.  Another common exception is for repetitive stress injuries, such as carpal tunnel syndrome.  In those types of cases, the statute of limitations starts to run from the date the employee became aware of the injury and also became aware the injury was a result of employment.

We have extensive experience with helping our clients understand the necessary procedures in workers’ compensation case.  Call us today to discuss your case and what we can do to help.

Fatal Injuries and Workers’ Compensation

Employers make efforts to keep their business running as smoothly as possible.  This includes making sure that employees are safe at work and will not sustain work related injuries.  Despite these efforts it sometimes happens that an employee sustains an injury.  In the most tragic and unfortunate of cases, a worker may not only be injured but may sustain a fatal injury.  Workers’ compensation will provide benefits not only when the worker is injured and needs medical treatment to recover, but also when the industrial accident results in the employee’s death.

California law provides that the family members dependent on the deceased worker may apply for and receive workers’ compensation benefits.  These benefits will include reasonable burial expenses up to ten thousand dollars as well as regular payments.  The dependents that are eligible to receive benefits will fall into one of two categories – either total dependents or partial dependents.  Total dependents are those family members who were complete dependent on the deceased worker for care and support.  Conversely, partial dependents are those who only partially dependent on the deceased worker.  In addition, the amount of benefits will depend on how many dependents the deceased employee at the time of his or her death.  If the employee had just one total dependent, the benefits would be two hundred and fifty thousand dollars, which goes up to two hundred and ninety thousand for two total dependents, and three hundred twenty thousand for three total dependents.  If there are one or more totally dependent minors at the time of the employee’s death, the family will continue to receive death benefits until the youngest child turns eighteen.  If the minor is disabled, he or she is eligible to receive benefits for life.  The death benefits are paid that the rate of temporary total disability, but not less than two hundred twenty-four dollars a week.  Dependents who seek death benefits under workers’ compensation will need to commence proceedings seeking these benefits within a year of the employee’s death.  The absolute deadline for commencing an action for death benefits is two hundred and forty weeks from the date the injury leading to death occurred.

We have extensive experience in workers’ compensation cases ranging from minor injuries to death of an employee. Contact us today for a consultation to talk about your business.

How OSHA and Workers’ Compensation Interact

Employers likely understand that there are many rules and regulations concerning workplace and employee safety.  Employers must take proper steps to make sure that employees are working in safe conditions that comply with state and federal law.  In California, employers are also obligated to maintain workers’ compensation insurance, with very few exceptions.  Employers need to make sure that they comply with both the California workers’ compensation system as well as other regulations regarding work place safety.  It is important for employers to grasp how workers’ compensation interacts with the California Division of Occupational Safety and Health, also commonly called Cal/OSHA.

Cal/OSHA is administered by the Department of Industrial Relations.  The purpose of Cal/OSHA is to ensure healthy and safe working conditions and protect public health and safety.  They do this by propagating regulations in California workplaces, including amusement park rides, ski lifts, and elevators.  Certain qualifying organizations have injury and illness prevention programs.  These programs are intended to identify risk factors and eliminate dangers before injuries or illnesses happen.  In addition to creating safety regulations, Cal/OSHA also provides safety and health assistance programs to employers and workers including on-site assistance and consultation.

By contrast, the workers’ compensation system is not an administration and does not independently create its own regulations.  Instead, workers’ compensation regulations come from the California legislature.  The workers’ compensation system is not designed to prevent injuries before the occur. Instead, the workers’ compensation system provides wage replacement, medical expenses, and sometimes vocational training for employees who have sustained work related injuries.  The California workers’ compensation system is a “no fault” system, which means that employees are not required to prove the work related injury resulted from any intentional or negligent conduct on the part of the employer; the worker is not required to demonstrate that the employer violated any safety regulations, including those created by Cal/OSHA.

The safer the work place, the less likely it is the employees will sustain work related injuries.  Avoiding work place injuries clearly benefits everyone, and can help the employer keep their insurance rates low.

We have experience with the workers’ compensation system and can talk to you about those regulations and Cal/OSHA.  Call us today for a consultation

Can I Opt Out of Workers’ Compensation Insurance?

Employers know that they need to take precautions to make sure their business is adequately protected.  Employers need to carry a variety of types of insurance, ranging from fire insurance to insurance on any vehicles.  Workers’ compensation insurance is another important component to protect your business.  Workers’ compensation provides insurance coverage in the event that your employee sustains a work related injury.  Despite its protections, some employers find the cost of workers’ compensation insurance too heavy a price to pay for that protection.  This leads many employers to wonder whether they can opt out of carrying workers’ compensation insurance.

California labor code section 3700 provides that if a business employs one or more employees, that business is required to carry workers’ compensation insurance.  It is important to note that this requirement includes some workers that you would not ordinarily believe would fall under this requirement, such as nannies or handymen.    It also should be noted that due to recent changes in the law, executive officers and directors of corporations must also be included in workers’ compensation coverage unless the corporation is completely owned by the directors and officers.  In that circumstance, they can opt to be excluded from coverage.  Except for those circumstances, all employers are required to carry workers’ compensation insurance and can face hefty penalties for failure to comply.

In some cases, an employer may decide to self-insure.  Self-insurance requires that you receive state approval.  The business must have a net worth of at least five million dollars with a net annual income of at least five hundred thousand dollars.  The employer must also post a security deposit.  Although this generally means that only larger businesses are able to meet the requirements, some small employers in the same homogeneous industry pool their workers’ compensation liabilities.  If the employer is self-insured, workers’ compensation claims may be administered directly by the employer or the employer may contact with a third party administrator to handle the administration of the case.

If you have questions about whether your business is required to carry workers’ compensation insurance, contact us today.  We can talk to you about your rights and responsibilities.

Medical Fraud and Workers’ Compensation

Workers’ compensation exists to make sure that employees receive the appropriate compensation and medical care in the event they sustain a work related injury.  In the vast majority of cases, workers’ compensation claims are valid and the injured employee really does require medical care.  In some unfortunate cases, however, there may be medical fraud in workers’ compensation cases.

Medical fraud in workers’ compensation cases comes in many different forms.  One common form is when a worker either exaggerates or completely fabricates an injury.  An employee may state that he or she still needs medical care and accommodations at work even though he or she is actually no longer injured.  This is commonly known as “malingering.”  If an employee fabricates or exaggerates an injury to continue to receive benefits, the employee can be charged with insurance fraud, ordered to pay back the fraudulently received funds and even serve time in jail.  Common injuries that are seen with this type of fraud are soft tissue injuries, as there are no medical tests to determine whether the injury has sufficiently healed and the employee is the only one who can say whether there is still pain or limitations because of the injury.

There are also much more complicated types of medical fraud.  These are typically white collar crimes that may involve multiple layers of fraud and multiple offenders.  These types of schemes may include doctors and attorneys who encourage others to exaggerate their injuries.  Doctors may over treat the patient to continue receiving payment for services and may over prescribe drugs, including harmful and addictive substances like powerful opioids.  Doctors receive payments for unnecessary treatment and the cost of insurance companies, and that cost is ultimately passed on to tax payers and others who must purchase workers’ compensation insurance.

In recent years, the state of California has made significant efforts to identify and prosecute workers’ compensation fraud, including medical fraud.  During the 2015-16 fiscal year alone, 167 cases were referred to prosecutors by the fraud division, totaling a potential loss of almost two hundred million dollars.  In addition, during that same time period, district attorneys reported 731 arrests.  Restitution of over fifteen million dollars was ordered in connection with the successful convictions.

If you have questions about workers’ compensation fraud, contact us today.  We can talk with you about fraud concerns and how you can comply with the law.

Third-Party Claims

California’s workers’ compensation system is a “no fault” system.  This means that in order to recover wages and medical costs under a workers’ compensation claim, an employee is not required to prove that his or her injury is a result of the employer’s intentional or negligent conduct.  In the majority of workers’ compensation cases, there are only two parties to the case: the injured worker and the employer together with the workers’ compensation insurance provider.  However, in some cases, there will be a third party involved.  There are some cases where the employee’s injury is a result of not simple common work place conditions, but because of the negligent or intentional conduct of a third person.  Common examples include faulty equipment or a car accident caused by the negligence of the other driver.  In both of those cases, as long as the worker is acting in the course and scope of employment, the injury would be compensable under the workers’ compensation system.  However, the inquiry does not end there.  Instead, the employer and often the insurance company will bring an action against the third party to recover the costs for wages and medical benefits that had to be paid out to the injured employee as a result of the third party’s conduct.  It is important to note, however, that the case against the third party is a separate action from the workers’ compensation case.  The workers’ compensation case between the employee and the employer proceeds like normal through the typical workers’ compensation system.  The claim against the third party, however, will go through civil court just like any other tort case.  It is not uncommon for the employer to need two different attorneys, as one would be familiar with workers’ compensation while the other will be an attorney who focuses on tort cases.  Particularly when the third party claim includes a product liability case (such as where equipment is faulty), it is likely an employer will need to hire another attorney for that, as it is a specialized area of law that not all attorneys practice or are familiar with.

We have extensive experience helping our clients understand third party claims in workers’ compensation cases.  Call us today to talk about your case.

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