Car Accidents and Workers’ Compensation

The borderline between work and leisure has eroded significantly for many people in recent years.  Laptop computers, tablets, smartphones, and other devices have made it simple to stay connected and do work from many different locations.  It is not uncommon for people to leave the office, drive home, boot up their home computer and continue to work.  Blurring the line between work and home can sometimes create confusion regarding workers’ compensation and when an employee is eligible for benefits.  To be eligible to receive workers’ compensation benefits, an employee must demonstrate that the injury is work related, meaning it is connected to a job-related purpose.  If an employee is injured while at the place of business, the injury is typically (although not always) considered work-related.  However, if the employee is injured while driving, it is possible that the employee may still be eligible for workers’ compensation benefits.  Commuting to and from work is not typically considered part of employment, even if the employee intends to work more once arriving home.  It is important for an employer to understand when the business may be liable for workers’ compensation benefits when the employee was driving.

Like other injuries, to demonstrate that the injury sustained while driving is covered under workers’ compensation, the driving must be work-related.  The inquiry will focus on whether the reason for the driving is related to the employee’s job duties.  For example, if the employee decides to drive to the local store to buy a snack and gets in an accident, that will likely not be covered under workers’ compensation. However, if the same employee was going to the store to purchase items at the direction of his or her boss to use at the business, then the injury would be covered under workers’ compensation, even if the employee happened to pick up the snack while at the store.  In essence, the inquiry is whether the purpose for the driving was for the business, and done in the course and scope of the employee’s job.

Employers should also note that the workers’ compensation benefits the employee will not be reduced even if the car accident was the employee’s fault.  This is because unlike the system underpinning auto insurance, workers’ compensation is a no fault system.

An important exception to the typical rule that injuries sustained while commuting are not covered by workers’ compensation is if, for example, the employee is driving to a distant work-site that is not the typical office or work space for that employee.

We have experience assisting our clients understand whether their employee’s injuries are work related.  Call us today and let us help you with your business.

Torts and Workers’ Compensation

California’s workers’ compensation system is designed to protect both the employee and the employer.  The employee is protected because the law provides that if he or she sustains a work-related injury in the course and scope of employment, he or she will be entitled to receive compensation for a variety of things, ranging from medical expenses to biweekly payments for permanent disability.  The employer is protected because there is a system in place to reduce incidences of fraud, ensure that the expectation for reasonable accommodations is clear, and it clear that not all workers are actually covered under workers’ compensation.  The workers’ compensation system is a “no fault” system, which means that the employee is not required to show the employer was at fault for the injury.  California labor code 3600 also provides that the exclusive remedy for an employee injured and seeking compensation is to purse a workers’ compensation case.  In other words, the employee cannot generally sue the employer for negligence or other civil torts.  All of the essential conditions contained in labor code 3600 must be met in order for the rule to apply.

Like so many other areas of law, however, there are exceptions to the exclusive remedy rule.  One exception is called “dual capacity.”  This exception acknowledges that an employee may have multiple different duties toward the employer.  If the injury arises out of an incident that was independent of the employment relationship, the employee may sue the employer.  Another exception is fraudulent concealment.  This will apply where the employer fraudulently conceals the worker’s injury and its connection to the employment, and the concealment exacerbates the injury.  This exception is typically seen in cases involving exposure to toxic chemicals, mold, or asbestos.  A third exception is employer assault or ratification.  This exception provides that although an employer is not typically responsible for injuries sustained when one employee assaults another, the injured employee may bring a civil suit if the employer took affirmative steps by either ratifying the conduct of the assaulting employee or by assaulting the employee. The next exception is for power press machines.  These machines are any material forming machine which uses a die to press, impact, punch, stamp, or extrude material.  A power press does not include the machines that simply cut material with a blade.  If an employer removes the guard on the press or fails to maintain the guard, an injured employee may sue the employer.  Finally, an employee may bring a civil suit against the employer when the employer has failed to obtain and maintain workers’ compensation insurance in accordance with California law.  This type of suit could allow for an injured employee to obtain workers’ compensation benefits while also recovering for negligence.

We have extensive experience with the workers’ compensation system and all types of associated litigation.  Contact us today for a consultation.

Safety Committees

Employers work tirelessly to make sure their business is using the most beneficial business tactics and practices.  Employers know that this includes not only making sure marketing, manufacturing, and customer satisfaction is properly attended to, but also the safety of the employees.  If an employee sustains a work-related injury, he or she can file for benefits through the workers’ compensation system.  This is a no-fault system, meaning neither the employee nor the employer will be required to demonstrate who was at fault for the accident.  Although the workers’ compensation is a system that benefits both employee and employer, the optimal situation is actually to reduce the chance of employee injury as much as possible.  Forming a safety committee at your business can be one way to help reduce the incidences of workplace injuries.

A safety committee is a group of comprised of employees, typically from across different departments, and will include members of the workforce and members of management.  Properly executed and overseen, a safety committee can be one of the most effective ways to help cut down on workplace injuries at your business.  A safety committee will serve many purposes.  One purpose will be to make sure that employees are more away of the proper safety procedures in place.  The safety committee can organize more frequent safety briefings and help amend corporate safety handbooks.  The safety committee can also serve as a place where other employees can bring safety concerns to the attention of management.  Safety committees can help facilitate communication to ensure management is aware of the nature and frequency of certain risks or violations happening in the workplace.  The safety committee can also help construct an action plan to improve workplace safety, as well as develop goals and incentive programs to encourage employees to work more safely.

There are particular traits of employees you may want to focus on when deciding who would be best suited to serve on a safety committee.  You want to look for employees who are respected by their co-workers, as these types of employees are more likely to get results.  Committee members need to be familiar with the processes of their departments, as well as receptive to new ideas as to how to improve conditions.

If you have questions about how your business can protect itself from workers’ compensation claims, call us today.  We can talk about your business and what can be done to protect its future.

Fraud Red Flags

Workers’ compensation is an important system which was put in place to protect workers from unscrupulous employers who would prefer to put the well-being of their business over the well-being of their employees.  The workers’ compensation system provides protections to an injured employee to make sure that he or she receives compensation for work-related injuries.  The system also provides protections to employers by helping create checks and standards for injuries and compensation limits.  California has also established special state task forces to help deal with the problem of workers’ compensation fraud.  Although the majority of workers’ compensation claims are valid, employers should keep a look out for some red flags for workers’ compensation fraud.

One red flag is a delay in reporting the incident.  For most employees, an injury severe enough to require medical attention is not an incident to be taken lightly.  Most employees who have actually sustained a work-related injury will immediately report being hurt.  An employee who waits days or even weeks to report the injury could be committing fraud.

Another common red flag is when the employee is inconsistent or vague about the details of the incident.  Employers should look for employees who frequently change the version of events or cannot remember important details, such as the date or location of the incident.

The lack of witnesses or the type of witnesses also can be a marker for fraud.  An employee whose job responsibilities typically include working together with others or in front of large groups, but who sustains an injury while he or she just happened to be alone is a red flag.  Moreover, if the only witnesses available are the close friends or family members of the injured, it may be important to investigate further.

Where you have a difficult time following up with the employee while he or she is supposed to be at home recuperating, this can also be a red flag.  In this situation, employers should watch for situations in which repeated phone calls or attempt to contact the employee during normal business hours are unsuccessful.  Family members who answer the phone may seem noncommittal about the injured employee’s whereabouts, or always claim the employee is sleeping.

Workers’ compensation fraud can have a serious impact on your business.  Call us today to talk about how we can help protect your business.

UEBTF Basics

The California workers’ compensation system is designed to protect both employees and the employers.  One way it accomplishes this is to require almost all employers to carry workers’ compensation insurance.  In the event that an employee makes a workers’ compensation claim, the insurance company will be the one to pay out the benefits to the employer and medical provider, not the employer.  This protects the employer’s bottom line while also making sure that the employee also receives the benefits that he or she is entitled to after sustaining a work-related injury.  Despite the fact that California law provides serious repercussions and penalties for employers who fail to carry workers’ compensation insurance, some employers still fail to carry it.  The Uninsured Employers Benefits Trust Fund (UEBTF) can then help provide the compensation required.

The UEBTF was set up in 1971 to make sure that even if an employer illegally fails to carry workers’ compensation insurance, he or she will still be properly cared for and receive the appropriate wage replacement or other benefits he or she may be entitled to under California law.  The UEBTF benefits the uninsured employer because it means that the employee still will not be able to directly sue the employer for his or her work-related injuries, as the injuries will still be compensated under the no-fault system established through workers’ compensation.  To receive compensation from the UEBTF, an injured employee must first go to the Workers’ Compensation Appeals Board to request a judgment for uncompensated injuries.  Once that occurs, he or she can then apply for benefits from the UEBTF.

After an employee receives compensation from the UEBTF, the process is not finished.  The UEBTF can and will seek to recover the benefits paid for the employee directly from the employer.  The UEBTF uses the funds recovered from illegally uninsured employers to help continue to fund the UEBTF.  Because the employer will not always have the cash on hand to reimburse the UEBTF for the benefits paid out, the UEBTF will typically seek to place liens on the assets and property held by the business.  Moreover, the UEBTF can seek to place liens on substantial shareholders of the business.

We have extensive experience helping our clients to understand the repercussions of failing to carry the required workers’ compensation insurance.  Call us today for a consultation

Course and Scope of Employment

When a worker classified as an employee sustains a work-related injury in California, he or she will likely be entitled to make a claim for workers’ compensation benefits. These benefits are designed to help pay for necessary medical expenses, necessary medical equipment, prescription drugs, and to replace lost income.  The workers compensation system helps protect workers from unscrupulous employers looking to maximize profits while putting employees in danger, but also helps protect employers by preventing law suits and placing restrictions on how many benefits an employee can receive, depending on the severity of injury, for example.  One way an employer receives protection from the workers’ compensation system is the “course and scope” rule.

An employee is only eligible for workers’ compensation benefits when he or she is acting in the “course and scope” of employment.  The “course” of employment refers to the tasks that are involved in the performance of an employee’s duties.  Most pointedly, it refers to those duties that must be carried out during a particular time, as outlined by the employer.  The “scope” of employment looks more to the intention of the employer and employee, as it refers to the activities necessary to carry out the person’s job, especially those that are reasonably foreseeable by the employer and are reasonably related to the employee’s job description.

In the context of workers’ compensation, an employee must be acting both in the course and scope of his or her employment when the injury occurs in order to be eligible to receive benefits through the workers’ compensation system.  Whether the injury occurred in the course and scope of an employee’s job, however, can be a more complicated question than it first appears.  For example, an employee simply driving to work who gets in a car accident will not typically be able to go through workers’ compensation.  However, if the employee is driving between job sites, as is required for employment, a car accident in that scenario could fall under the employee’s course and scope of employment.  Similarly, if a person trips and falls while walking home from work, that would not be covered.  Conversely, if that person was going to stop by the bank on the way home to make a deposit for the employer, then those injuries from that same fall may be compensable.

We have extensive experience in helping our clients understand their business’s rights and responsibilities with respect to workers’ compensation.  Call us today for a consultation.

What Is Temporary Total Disability?

The California workers’ compensation system provides a method for employees who have sustained work-related injuries to receive compensation as result of their industrial injuries.  While employers will always take measures to attempt to reduce the likelihood that their employees will be injured, the workers’ compensation system provides relief for the workers and a degree of protection for the employers.  During the process, the injured worker will receive medical care and a doctor will determine the type of disability the worker has.  One of these options is temporary total disability.

An employee will be considered to have a temporary total disability where the employee’s primary treating physician has certified that he or she is unable to work as a result of the injury.  To be considered totally disabled, the medical provider must determine that the injured employee is unable to return to work at all, including a modified work schedule, due to the work-related injury.  Although a permanent injury is defined as one that is “permanent and stationary,” there is less statutory guidance as to what constitutes a temporary injury.  California court have described temporary injury as an injury that can reasonably be expected to be cured or materially improved with proper treatment.  If an employee is temporarily unable to work and is determined to be temporarily permanently disabled, then he or she may apply for the basic benefit that is usually available to temporarily disabled workers, which is called “temporary disability indemnity.”  This type of benefit is intended to replace the injured worker’s regular wages, which he or she would have continued to receive but for the injury.  This is in contrast to permanent disability, which is intended to compensate for diminished future earning capacity.  California labor code 4653 provides that temporary total disability compensation is calculated at “two thirds of the average weekly earnings during the period of such disability.”  Given the fact that workers’ compensation benefits are not subject to income tax, the worker’s take home from workers’ compensation would likely be approximately comparable to his or her after tax take home from regular employment.  However, the labor code does provide caps to the amount and duration of temporary total disability benefits, which could be up to 104 weeks, depending on the injury.

If you have questions about the workers’ compensation system, let us answer them. Contact us for a consultation to talk about how your business will be impacted by a claim.

How Is Disability Determined?

The workers’ compensation system is designed to make sure that an employee who sustains a work-related injury receives compensation for the injury.  This means not only wage replacement, but also the employer or the employer’s insurance company, will be required to pay for the reasonable medical expenses related to the injury.  The type of disability that an employee sustains as a result of the injury will have an enormous impact on the type and duration of benefits that he or she is entitled to receive.  Accordingly, understanding how disability is determined can be an important step toward protecting your business.

There are four different types of disability: temporary total disability, temporary partial disability, permanent total disability, and permanent temporary disability.  Only a doctor can make the determination as to a worker’s type of disability.  During the workers’ compensation process, the injured employee will be seeing medical professionals not only for the treatment of his or her injuries, but also for assessment.

An employee may be entitled to temporary disability benefits where he or she must miss at least three days of work or where he or she must be hospitalized overnight.  Again, only a doctor can make the determination as to whether or not these courses of treatment are necessary.  Moreover, only a doctor can make the determination that a worker is totally temporarily disabled, meaning he or she is totally unable to work for a temporary amount of time, or that he or she is only partially temporarily disabled, which would mean he or she is still able to work, but in a limited capacity.

By contrast, permanent partial disability would mean that the injured worker will never be able to work at the full capacity that he or she was able to do before the worker sustained the industrial injury.  The injured worker will still be able to work, but not in the same manner or to the same extent.  Permanent total disability means the injury results in the injured worker’s total inability to work in that field ever again.  A doctor will diagnose a permanent disability only after he or she makes the determination that the worker will not be able to heal any further.

Determining disability is a nuanced process.  Call us today so we can talk with you about what your business can expect from the process.

Out of State Injuries and Business

Our society is becoming increasingly more mobile.  It is not uncommon for people to make several cross country relocation moves during their lifetime, whereas in the past, people tended to stick close to the place they were raised.  As our families become more mobile, so, too, do our businesses.  It is very common to conduct business over the internet with people who live all over the country or even all over the world.  This facility of movement and tendency to conduct business across state lines can provide complications, however, when an employee is injured during the course and scope of employment.

With some limited exceptions, the California Workers’ Compensation Appeals Board will have jurisdiction over any injuries that occur within the state of California.  This is true even if the worker is employed in another state; as long as the injury occurs within California, then the WCAB will have jurisdiction over the claim.

There are also some limited instances where the WCAB may exercise jurisdiction over an injury that occurs in another state where there is “sufficient interest.”  Pursuant to Labor Code 5305 and 3600.5, the two situations during which the WCAB may exercise jurisdiction for injuries that occur out of state are when 1) the contract for hire was done in California, or 2) the out of state employee is regularly employed in California.  If an employee can demonstrate that he or she qualifies under either of those provisions, then he or she is entitled to compensation under California workers’ compensation laws.

Under Labor Code 5305, an employee may apply for workers’ compensation benefits in California even when the injury was sustained in another state as long as the contract for hire was done in California.  Although the statute also states that the employee must be a resident of California, this provision has been ruled unconstitutional by the California Supreme Court.  In workers’ compensation cases, the contract for hire will have been made in California where the acceptance of the employment contract physically occurs.

The labor code also allows the WCAB to have jurisdiction over out of state injuries where the employee is regularly employed in California.  Even if the employee was hired in another state, the employee may still apply for protection under the California system.

We have extensive experience with all types of workers’ compensation litigation, including complex interstate issues.  Contact us today to talk about your business’s rights and responsibilities

Can an Employee Sue Me In Civil Court?

The workers’ compensation system has existed in California for decades.  Workers’ compensation provides protection for both employees and employers, as it sets out rights and responsibilities for both parties in order to receive the benefits of the system.  One main benefit for employers is that in most cases, an employee cannot sue the employer in civil court based on the work-related injury.  However, there is an important exception to this rule found in California Labor Code 3706.

California Labor Code 3706 provides that “If any employer fails to secure the payment of compensation, any injured employee or his dependents may bring an action at law against such employer for damages, as if this subdivision did not apply.”  In other words, if an employer has failed to maintain workers’ compensation insurance, as is required by most employers in California, then the worker is not prevented from filing for compensation for his or her work-related injuries in civil court.  Conversely, if the employer maintains appropriate workers’ compensation insurance in accordance with the law, the employee is prevented from bringing a civil suit against the employer for negligence and is required to proceed under workers’ compensation to recover for his or her work-related injuries.  Moreover, Labor Code 3715 goes on to say that when an employer is illegally uninsured, the employee is not limited to filing in civil court; rather, the employee may bring both a claim before the workers’ compensation appeals board and also decide to pursue the employer in civil court.

If the employee decides to sue the employer for negligence in civil court, there are important differences from a typical negligence suit.  First, the employee must plead and prove that the employer failed to carry workers’ compensation insurance before the civil court will have jurisdiction to hear the claim.  More importantly, the burden of proof shifts.  In typical civil cases of negligence, the plaintiff has the burden to prove the defendant acted negligently.  In these cases, however, Labor Code 3708 provides that the defendant employer has the burden of proof to rebut the presumption that the employer acted negligently.  The employee must only prove that the injury occurred during the course and scope of employment.

If your business is facing a workers’ compensation suit and you are concerned about a civil suit, contact us today.  We can help you understand the process and how to protect your business going forward.

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