Workers’ Compensation and Product Liability

The workers’ compensation system has an extensive system of legislation determining what type of injury is eligible under the system.  Workers’ compensation legislation also provides that the system is a “no-fault” system.  This means that the employee is not obligated to prove that the employer’s negligent or intentional conduct was the direct or indirect cause of the conditions that lead to the work-related injury.  The system also limits the ways in which an injured employee can seek to recover; an employee is generally prevented from filing a civil suit in court while also pursuing recovery through workers’ compensation.  One of the exceptions regarding this rule involves product liability.

Product liability actions mean that the manufacturer of a product can be held liable in some situations when the equipment malfunctions and causes injury.  Product liability comes into play with workers’ compensation most often when an employee is injured by defective equipment in the workplace.  The employer can then seek to recover or receive reimbursement from the manufacturer for the costs the employer has had to pay through workers’ compensation.  For example, if an employee is badly burned when an oven malfunctions and the worker then files for workers’ compensation, the employer can then seek to recover the money it had to pay to the employee from the manufacturer of the oven.

Another way that products liability can figure into workers’ compensation is through the operation of a power press.  Some employers may be tempted to remove certain safety precautions installed on power presses in the interest of increasing productivity and profit.  A power press is specifically identified as any material-forming machine used to die, press, impact, stamp, punch, or extrude material.  Power presses do not income those machines simply used to cut material.  Under California Labor Code § 4558, if an employer knowingly removes the guard, the employee may be able to recover both in civil court and in through workers’ compensation.  However, if a manufacturer-installed the press, or designed it in such a way as to make it unsafe, the manufacturer may be on the hook for the employee’s injuries instead of the employer.

We have extensive experience helping our clients understand how products liability fits into workers’ compensation.  Call us today to talk about your case and your business.

Do I Have a Right to My Employee’s Medical Records?

Workers’ compensation can be a confusing process for both the injured employee and the employer.  Like other civil litigation, workers’ compensation requires a large amount of paperwork.  There are many forms that need to be filed in a timely manner, the employee will have to file paperwork starting the claim with the court, and doctors will need to fill out and return forms concerning the employee’s injury.  Medical conditions can be just as complicated and confusing for laypeople as the workers’ compensation claim itself.  If your business is facing a workers’ compensation case, you may be wondering if you can get a copy of your employee’s medical records.

The short answer to this question is “yes.”  Although employees may balk at this as it seems like an invasion of privacy, it is important for employees and employers both to understand that medical records can be crucial to the workers’ compensation process because an employee’s claim can be impacted by the existence of a pre-existing injury.  For example, if your worker is claiming he or she has developed carpal tunnel syndrome during the course and scope of employment, the employee can be forced to disclose medical records that show that he or she has sought treatment for the same or similar condition in the past.

Employers should keep in mind, however, that an employer cannot force an employee to provide copies of all medical records, despite the lack of connection between the work-related injury and records of past medical conditions.  Taking the same example of the employee claiming he or she has developed carpal tunnel syndrome, the employer could not likely require the employee to provide copies of medical records concerning skin cancer treatment.  Employers should also keep in mind that the Health Insurance Portability and Accountability Act (HIPAA) also applies to workers’ compensation cases.  The purpose of HIPAA is to help protect the privacy and security of medical records.  In most situations, a person would need to sign a release for another entity to receive a copy of health records. Workers’ compensation cases have a limited exception, allowing relevant medical information to be released without individual authorization from the injured employee.  However, the medical records will only be disclosed to meet the minimum required information.

We have extensive experience helping our clients understand the type of information they may have a right to during a workers’ compensation case.  Call us today for a consultation.

Workers’ Compensation Mediation

Civil litigation has a reputation for being complicated and dragging on for months or even longer.  Workers’ compensation is no exception, and when the sides disagree about central issues, the case can become complicated and lengthy.  As a way to cut down on the time and expense involved in litigation, many people are turning to mediation.  During mediation, the two sides will sit down with a neutral third party who will try to facilitate a settlement.  Mediation allows the two sides to come to an agreement that fits their needs and preferences.  If your business is facing a workers’ compensation suit, you should know what to expect from workers’ compensation mediation.

During a workers’ compensation mediation, you and the employee will both appear and discuss the case with the mediator.  The mediator is not a judge and cannot force either side to settle.  Instead, the mediator’s job is simply to help the two sides communicate and try to reach common ground on some or all of the issues.  You and the other side will both be able to present discussion and argument to the mediator about the merits of your respective positions.  Neither of you will be under oath, and the rules of evidence that are applicable in a courtroom are not applicable during mediation.  Typically before the parties arrive, the employee and the employer (or the employer’s insurance company) will have sent a detailed position statement to the mediator outlining the details of the case and the source of contention.  It is usually helpful for both sides to bring all relevant documents, especially if the parties have already completed discovery.

During mediation, the sides can discuss any part of the case that is still in disagreement.  In general, the mediator will put the two sides in two different rooms and go back and forth between the two, trying to help them find common ground.  It can take hours for an initial settlement offer to be made, and the offer is usually followed up by a counteroffer.  If the parties are able to reach a settlement on at least part of the case, the agreement will be reduced to writing and the parties will sign.  The agreement will later be presented to the court for the judge’s signature.  IF the parties are unable to reach an agreement on all of the issues, they can still proceed to a final hearing on only those issues that remain.

We have experience assisting our clients in workers’ compensation mediation.  Call us today and we can talk about your case.

How Workers’ Compensation Can Protect your Business

Workers’ compensation is an important system in California.  The system makes sure that workers receive medical treatment after receiving a work-related industrial injury.  Injured workers can receive payment for medical costs as well as a portion of replacement wages.  Clearly the worker receives protection from the system, but it is important to remember that business owners and their business structures are also protected by the workers’ compensation system.

One essential way that businesses receive protection is through the “no-fault” system under workers’ compensation.  This means that the employee is not required to prove that the business owner committed any type of negligence in order to receive compensation.  While at first blush it may seem that this is a protection for the employee, it is also a protection for the employer.  This Is because the no-fault system also prevents the injured worker from bringing a lawsuit in civil court to recover for the work-related injury.  In a civil suit, the employee would need to prove that the employer committed negligent or intentional conduct leading to the injury.  The amount of damages could be unpredictable.  By contrast, under workers’ compensation, there are specific fee schedules set out for how much an employee will be able to recover.  This system could save the employer substantial time in court as well as money for damages that employee could not recover in the workers’ compensation system.

Another important way that the workers’ compensation system protects your business is by requiring workers’ compensation insurance in almost every situation.  Workers’ compensation insurance protects your business because if your worker is injured in the course and scope of his or her employment, your business will be on the hook for the medical costs and replacement wages, regardless of whether you were actually carrying insurance.  In other words, if you do not carry the required insurance, having to pay all of these costs straight out of the business could create a significant and even detrimental impact on your business.

Finally, the workers’ compensation system helps businesses by making business owners and managers more aware of potential dangers and how to take action to help prevent injury.  Forming safety committees, keeping equipment up to date, and providing the latest safety training for employees are all ways businesses can reduce their liability, and could even reduce their insurance premiums.

We have extensive experience helping our clients understand how their business fits in the workers’ compensation context.  Contact us today for a consultation.

High-Risk Occupations and Workers’ Compensation

Even though careful and diligent employers work hard to reduce the chance their employees will sustain a work-related injury, injuries are eventually inevitable.  Some professions are pretty low risk, such as typical office work.  However, there are other jobs that involve an inherently higher level of risk.  Understanding which professions more often lead to injury or even death can help you take measures to reduce the risk to your employees.

One category of people who are at high risk for workplace injuries is those who work at great heights.  This includes people such as window washers, roofers, and painters.  In recognition of the extra risk involved in working at great heights, some professions have extra workers’ compensation coverage requirements in terms of sole proprietors and the inability to opt-out of carrying workers’ compensation insurance.

Unsurprisingly, first responders also work in high-risk occupations.  It is obvious that police officers risk life and limb on a daily basis while dealing with criminals.  In addition, EMTs face risk by being required to go into unknown circumstances with injured or very ill people.  EMTs also can potentially be injured when lifting and moving incapacitated patients.  Similarly, firefighters may have to shift heavy objects in order to save fire victims.  They also obviously face risk of burns and heat-related injury.  Moreover, they can be exposed to dangerous chemicals while on the job.  The California Labor Code contains extra provisions to protect first responders’ ability to receive workers’ compensation benefits.

Truck drivers are also in a high-risk occupation.  There is a level of risk involved any time you are in a vehicle on the road.  Distracted and impaired drivers are a very real danger.  Moreover, some cargo carried in large trucks is hazardous, such as chemicals or gasoline.  Employers should take careful measures to make sure their trucks are in good working order.  Keeping the vehicles in good repair will help make sure the driver and passengers stay safe, as well as protecting others on the road.

Doctors, nurses, and other healthcare professionals also face high risk in their occupations.  They are regularly exposed to potentially contagious and even life-altering diseases.  Moreover, some patients can be combative or violent.  Finally, there is a risk of injury from lifting and moving patients.

If you are a business owner and your employees are in high-risk occupations, it is important for you to understand your rights and responsibilities.  We can help you understand the workers’ compensation system and how your business fits within it.

What if I Disagree with the Disability Rating

After an employee sustains an injury in the course and scope of his or her employment, he or she is entitled to file for workers’ compensation benefits.  These benefits cover not only a portion of their replacement wages, but also their related medical costs for the treatment of their work-related injury.  When an employee is initially injured, he or she may be deemed to be temporarily disabled by a healthcare worker.  After the injury has stabilized, i.e. determined to reached its maximum recover, the employee may then be determined to be permanently disabled.  During this determination, the employee will be assigned a disability rating.  This disability rating is significant because the permanent disability rating will determine the amount of benefits the worker will receive in the long run.

To calculate the permanent disability percentage, it is required to perform an assessment of the injured employee’s whole person impairment.  The whole person impairment is then used in a particular format  to create the disability percentage.  It is not uncommon for the employee or the employer to disagree on whether the disability rating is correct.  They may disagree on the severity of the impairment or on the type of impairment.  If you disagree with the impairment rating given to your employee by the Treating Doctor, you can request that he or she submit to a new medical examination with a Qualified Medical Evaluator (QME).  Be advised, however, that a court will not order an injured employee to just continue to submit to repeated medical examinations until the employer gets the impairment rating he or she thinks is appropriate.  Employees also need to remember that time is not unlimited to appeal the disability rating and request a new medical examination.  Accordingly, an employer should not delay in pursuing the appeal if he or she believes the rating is incorrect.  Employers also should keep in mind that simply alleging that an award is too high is not likely to achieve a favorable outcome during an appeal.  Employers should be able to articulate why an award is too high or inaccurate.  For example, if the employee alleges his or her shoulder is seriously injured, the employer may want to be able to present evidence that the employee is regularly lifting heavy boxes or pursuing heavy athletic activity.

We have extensive experience with helping business owners understand the role of disability ratings.  Call us today to discuss your business and what we can do to help.

The Role of the Qualified Medical Examiner

There are many important steps during the workers’ compensation process.  The employee and employer will both be required to file particular paperwork and may have to attend court.  The employee will also need to receive medical treatment.  The medical attention will be not only for the purpose of treating the injury, but also for assessing the employee’s injury and assigning a disability rating.  One of the medical care providers the employee will likely need to meet with is a qualified medical examiner (QME).

The qualified medical examiner is a doctor that is licensed to practice medicine in California.  The QME is also certified by the Division of Workers’ Compensation Medical Unit in his or her area of expertise.  The QME is meant to be able to provide an unbiased opinion about the injured employee’s injury.  The opinion of the QME can have a serious impact on the outcome of your case.  The QME provides an opinion on the disability rating of the injured employee, which in turn has a direct impact on the length and amount of workers’ compensation benefits an employee may receive.

The most common way that an employee will need to be assessed by a QME is after the injured employee has been given a permanent disability rating by his or her treating physician and you and your workers’ compensation insurance provider disagrees with the rating.  You and the insurance company can then request that the employee submits to a QME examination.  The employee will be given a choice of three different QMEs in the area that he or she can choose from.  The relationship between the employee and the QME is different than a typical physician-patient relationship.  The examination by the QME is a  “medical-legal” evaluation.  Before the employee arrives at the QME’s office, the file will have already been sent over to the QME for review.  The insurance company will have sent over a list of questions to the QME that they want answered based on the treatment the employee has already received.  The QME will discuss the injury and the treatment received with the employee.  The QME will then complete a report about the injury, detailing his or her findings.  The QME is required to send a copy of the report to both the insurance company and the employee.

If you have questions about the workers’ compensation process, call us today. Contact us today for a consultation to talk about your business.

Intentional Conduct and Workers’ Compensation

Workers’ compensation is an important part of the California legal process.  It provides a method for workers who are injured during the course and scope of their employment to receive payment for medical costs and replacement wages.  One of the features of the workers’ compensation system that provides protection to both employees and employers is the fact that the California workers’ compensation is “no fault.”  This means that neither the employer nor the employee has to prove that the other is at fault for the injury before the employee is eligible to receive workers’ compensation benefits.  An important exception to this, however, is where the injury is received after intentional conduct from the employee.

One of the most common examples to this is when an employee has intentionally injured him or herself on the job in an effort to get workers’ compensation benefits.  This can be classified as fraud and is one of the reasons it is important to properly document and investigate every workplace injury.  For example, if your employee was injured in a purported slip and fall incident, but you have video evidence that he or she intentionally fell to the ground, it is possible that this will render him or her ineligible to receive workers’ compensation benefits.

Another way that intentional conduct can render your employee ineligible to receive workers’ compensation benefits is if your employee was involved in a fight.  If your employee engaged in an illegal act, such as assault, this will render him or her ineligible to receive workers’ compensation benefits for any injuries sustained during the fight.  It is important to note, however, that if the employee was not the aggressor, he or she may still be able to collect workers’ compensation benefits.

Workers’ compensation benefits also come into play if an employee is injured in a car accident during the course and scope of his or her employment.  During the discussion with the car insurance company, the issue of fault will be relevant.  However, in the context of workers’ compensation, the fault of the employee is irrelevant.  If, however, you could prove that the employee intentionally wrecked the company vehicle, that would mean that he or she will not be eligible for workers’ compensation.

We have experience with helping clients understand their rights and responsibilities with regard to intentional conduct and workers’ compensation.  Call us today for a consultation.

Helping Your Employees with Occupational Illnesses

Employers take many measures to make sure their workplace is as safe as possible.  Keeping the workplace free from hazards is an essential step to keeping your customers and employees safe.  When making your business safe, you likely think about dangers such as a slippery floor or heavy machinery with outdated safety updates.  Unfortunately, many employers overlook the very real danger posed by occupational illnesses.  These include conditions such as carpal tunnel syndrome, ulcers, or back injuries.  Conscientious employers should take measures to help their employees avoid occupational illnesses.  As an employer, there are measures you can and should take to help your employees avoid and deal with their occupational illnesses.

One of the best ways to identify and avoid occupational illnesses for your employees is to create an injury and illness prevention program.  The focus of an injury and illness program is to identify potential sources of injuries, and then making a plan to help manage and control those dangers.  For example, if your business requires employees to perform repetitive motions, such as lifting boxes and turning to put them away, an illness and injury program can help provide training to employees on how to properly lift boxes to avoid injuries as well as making sure employees take breaks at regular intervals.

Another way to help your employees is to provide information and awareness information about occupational illnesses.  While employees are likely aware of the dangers of carpal tunnel or even repetitive motion injuries, they may be less familiar with how to prevent other injuries, such as developing asthma or even certain psychological injuries.

Encouraging your employees to stay healthy and take appropriate breaks from work can also help to reduce the incidences of occupational illnesses.  Keeping your employees healthy and fit can help keep them strong, making it less likely they will develop those injuries.  Breaks are also extremely important.  For example, taking regular breaks from typing can reduce the chances of an employee developing carpal tunnel or exacerbating prior nerve damage.  Although some employers may feel frustrated at frequent breaks, making sure the employee never develops the injury in the first place will save time in the long run, as the employee will not need to miss work for treatment of the injury.

If you have questions about what measures you should take as an employer, contact us today.  We can talk to you about your rights and responsibilities

State Action on Workers’ Compensation Fraud

The workers’ compensation system is an important safety net to help provide employees with a way to get their medical costs covered as well as a degree of replacement wages while they are recovering.  The system also protects employers by preventing an employee from suing them in court for the injury in addition to the workers’ compensation process, with very few exceptions.  Although the overwhelming number of workers’ compensation claims are valid, workers’ compensation fraud is a serious problem, costing the California taxpayers millions of dollars a year.  To that end, there have been significant actions by the state to help combat fraud.

One way that the state of California combats workers’ compensation fraud is by creating specialized workers’ compensation fraud units in district attorneys’ offices across the state.  These units are full of attorneys with specialized knowledge about some of the most common types of workers’ compensation fraud, including claim mills, malingering, premium fraud, and provider fraud.  These attorneys are familiar with the types of evidence required to move forward with a case and are skilled in getting convictions.  These convictions help cut down on the amount of fraud being perpetrated, saving untold tax dollars.

Another way the state of California combats workers’ compensation fraud is the Workers’ Compensation Fraud Program, which was established by the legislature in 1991.  The program made it a requirement for employers to report suspected fraud, made workers’ compensation fraud a felony, and provided a way to fund enforcement and prosecution activities.  The legislation also established the Fraud Assessment Commission.  The role of the Fraud Assessment Commission allocates funding to fraud prosecutors.

The state also takes action against workers’ compensation fraud by passing new legislation to combat fraud.  One example is Assembly Bill 2046, which was introduced in 2018.  The bill modifies the way that the legislation and commission are permitted to spend funds on fraud prosecutions.  The bill also allows certain government agencies which have workers’ compensation insurance fraud information to release that information to certain designated and authorized government agencies.  Several bills were also introduced in 2018 dealing with the requirement to carry workers’ compensation insurance, including requirements for particular contractors to carry a certificate of workers’ compensation insurance or certificates of self-insurance.

If you have questions about workers’ compensation fraud and how to make sure your company complies with the law, call us today.  We can talk with you about workers’ compensation and your business.

Ratings and Reviews

CBLS