Temporary Versus Permanent Disability

No employer wants to see an employee hurt on the job, but even when the employer has taken meticulous steps to reduce the chances of employee injury, it is almost a certainty that an injury will eventually occur.  When the employee sustains a work-related injury, he or she will be entitled to receive a variety of benefits.  The most pressing and obvious type of benefits will be medical expenses for treatment of the injury.  Temporary and permanent disability benefits may also be awarded, so as an employer, you need to understand the difference between the two.

Temporary disability benefits are designed to help replace at least a portion of the injured employee’s wages while he or she is unable to work.  The type and length of the temporary disability benefits received will be determined by the types of work restrictions set by the employee’s medical provider.  An employee will no longer receive temporary disability benefits once he or she returns to work or is told by the medical provider he or she is sufficiently recovered to return to work.  California law provides that temporary disability can only be paid for a maximum of 104 weeks within the five years following the injury.  There are, however, some conditions that will allow for payment of temporary disability benefits for longer, such as chronic lung disease, chemical burns to the eyes, or amputations.

Permanent disability benefits are benefits that are paid in recognition of your future loss of earning capacity as a result of the injury.  Like temporary disability benefits, the benefit will be paid based on a medical evaluation.  The medical provider must determine when an injury has reached maximum improvement (i.e., has “stabilized”) and at that time will determine an employee’s permanent disability rating. The medical provider will determine the percentage of your disability and the amount paid will be directly determined by that percentage; the higher the percentage, the total money will be paid to the employee.  For any amount under one hundred percent, an employee is partially disabled.  An employee who is permanently totally disabled will be entitled to receive weekly payments in the amount equal to the temporary disability rate for the rest of the employee’s life.

If you have questions about whether what the different types of disability payments mean for your business, call us today.  We can talk to you about your rights and responsibilities.

What Does Workers’ Compensation Not Cover?

Workers’ compensation is crucial to help make sure that employees receive medical treatment after sustaining a work-related injury.  Workers’ compensation allows an employee to recover medical costs related to the treatment of the injury. It also provides temporary or permanent disability payments to help take the place of lost wages.  Workers’ compensation will cover a wide variety of injuries, ranging from post-traumatic stress disorder, carpal tunnel syndrome, or a broken arm, just to name a few.  While workers’ compensation certainly covers a lot of different injuries, there are definitely some things that workers’ compensation will not cover.

One thing that workers’ compensation will not cover is injuries sustained during a car accident that happened during the employee’s normal commute.  Getting to and from work is not generally included, but there can be some exceptions.  For example, if the employee is driving between two different work sites, or is commuting to a distant work site that is not the employee’s typical workplace, then injuries sustained during that drive could sometimes fall under workers’ compensation.

Another class of injuries that would not be included in workers’ compensation benefits would be injuries that were intentionally inflicted by the employee himself.  An employee cannot recover for injuries if he or she purposefully sustains that injury.  This makes sense, as it is clearly unfair to allow an employee to receive financial benefit for purposefully throwing himself off of scaffolding or slicing her arm with a kitchen knife.

Third, injuries that were sustained during horseplay or fighting are likely not covered.  Even if  the employees are “on the clock” when they were horsing around, if either sustains an injury while this was going on, they likely will not be covered by workers’ compensation.  As with most other issues, there are exceptions to this.  If the employer regularly permitted or even encouraged horseplay, it is conceivable that the injuries would be covered.  Similarly, fighting in the workplace may end up not being covered.  That said, while a personal altercation between two employees may fall outside of coverage if one employee is attacked by another after a poor job performance review, the injuries to the employee who did not instigate the fight may be covered.

If you have questions about what types of injuries are covered by workers’ compensation, call us today.  We can talk with you about workers’ compensation and your business.

What Is In the “Course and Scope of Employment?

Workers’ compensation is a system designed to protect both employees and employers after an employee sustains a work-related injury.  The process protects the employee by providing a method for the employee to receive medical treatment and disability benefits.  The process also protects employers by preventing an employee from receiving disability benefits and also suing the employer for damages.  In order to receive compensation for injuries and disability benefits, an employee must have sustained the injury in the course and scope of employment.  Accordingly, when moving forward with a workers’ compensation case, it is important for an employer to understand what “course and scope of employment” means in the context of workers’ compensation.

In its simplest terms, asking whether an employee was acting in the course and scope of employment is asking whether the employee was “working” for the employer at the time the injury occurred.  One of the easiest ways to figure this out is to ask whether at the time the injury occurred, was the employee doing something to benefit the employer.  For example, if an employee takes a break and drives to the post office to mail a personal letter, and is injured in a car accident on the way back to work, this would not be in the course and scope of employment.  However, if while at the post office, the employee also takes the time to mail several packages on behalf of the employer, then any injury sustained in the accident may very well be covered by workers’ compensation.

Employers should be careful not to always assume that any injury sustained by an employee occurred in the course and scope of employment.  This is true even if the employee is injured while on company property.  If the employee is not working at the time he or she was injured, then the injury did not occur in the course and scope of the job.  This would most often be seen where the employee has come into work on a day when he or she is not working, and is there to socialize or conduct personal business.  For example, if you own a grocery store and your employee comes in on his day off to buy groceries, he would not be eligible for workers’ compensation if he is injured at that time.  In other words, for an employee to recover under workers’ compensation, he needs to be performing something work-related at the time.

We have extensive experience helping our clients understand the requirements of a workers’ compensation claim.  Call us today to talk about your case and your business.

Documenting Injuries

Employers know that it is important to take all necessary measures to help keep their employees, customers, and clients safe in the workplace.  These measures include actions such as keeping equipment in good repair, conducting regular safety training and forming safety committees.  Unfortunately, despite the best efforts of even the most diligent employer, workplace injuries will occur.  If this happens at your place of business, it is important to make sure you properly document the injuries.

When an employee is injured on the job, it is that employee’s responsibility to report that injury to the employer.  Once that takes place, the employer is required to then provide the employee with a claim form.  The employee fills out the form and returns it to you.  The employer then completes the form and submits it to the workers’ compensation insurance provider, which starts the claim.  Within fourteen days, the insurance company will send you a notice about the status of the claim and whether or not it has been accepted.  Employers need to be aware that within one day of receiving a claim form from the employee, the employer is required to authorize medical treatment under industrial guidelines, up to a maximum of $10,000 while the claim is being investigated.  In other words, the employer cannot wait until the investigation has been completed before providing medical treatment funding to the injured employee.

The employer should take other steps to document the injury and the incident as much as possible, and should not rely exclusively on the injured employee’s account of the incident.  An employer should take steps to promptly obtain witness statements from any other employees who may have witnessed the injury.  If the employer has surveillance cameras, the footage should be reviewed, and copies of the recording provided promptly to the insurance provider.  Employers can also gather information about the injury by talking to others who commonly perform the same or similar tasks as the injured employee.  These other workers can sometimes provide important information about whether the injury likely occurred in the way explained by the injured worker and point out other problem areas in the department that can be rectified to reduce the chances of future injuries.

We have extensive experience helping our clients understand the workers’ compensation process and the documentation your business will need to complete. Call us today for a consultation.

First Responders and Workers’ Compensation

We all owe a great debt to first responders.  First responders face great risks in their jobs on an everyday basis.  Police officers, firefighters, and paramedics never know what types of risks they may be facing when walking into any situation on their job.  Unlike most other jobs, first responders face unique challenges due to the impossibility of greatly reducing or even eliminating most on-the-job risks.  In recognition of the inherently high risk associated with first responders’ employment, California has some specific legislation concerning workers’ compensation uniquely for first responders.

One type of workers’ compensation law in California specifically for firefighters recognizes that not all injuries for firefighters are immediately apparent.  While some injuries may be obvious, such as concussions, burns, or broken bones, there are others they may not be.  If a firefighter develops lung cancer, heart disease, tuberculosis, or other lung problems, the injury is presumed to be a work-related injury.  This is an assumption that employees in other fields will not receive.  Moreover, under Labor Code 4850, a firefighter will be eligible to receive full salary for up to a year after sustaining a work-related injury.  This is different from workers in other industries, who would only be eligible to receive temporary or permanent disability payments, which amount to two-thirds of regular salary and are capped at a certain amount.

California law was also modified following the tragic mass shooting at the Las Vegas Route 91 Harvest Festival in October 2017.  There were 58 people killed in the shooting and 851 were injured.  Among those sustaining injuries were four off duty police officers from California.  Their workers’ compensation claims were denied because they were off duty and simply attending the concert when they were injured.  Labor code 3600.2 was amended in response to this.  Under the new law, an employer may cover these types of cases.  Moreover, the labor code specifically names those injured in Las Vegas at the mass shooting as being eligible for workers’ compensation benefits.  The law states that the law shall not preclude an employer from accepting workers’ compensation liability when an employee is injured while outside of California while attempting to apprehend a suspected law violator or while attempting to protect others.

We have experience assisting our clients understand the various provisions of the California labor code and how it impacts your business.  Contact us today for a consultation.

FMLA and Workers’ Compensation

Regardless of the safeguards put in place by the most careful of employers, employees will suffer a work-related injury at some point.  These injuries could be acute, such as a head injury after falling from a ladder, or more slowly developing, such as a repetitive stress injury.  No matter how the injury happens, as long as the employee was acting in the course and scope of employment, the employee can apply for medical benefits and disability payments under the workers’ compensation system.  The employee may be required to take time off from work while recovering from the injury.  In cases where an employee is ill or injured and needs extended time off from work outside of the workers’ compensation context, the employee can seek protection under the Federal Medical Leave Act.  Under the FMLA, eligible employees can take unpaid, job-protected for particular family reasons or medical reasons, such as having a child or a serious health condition that renders the employee unable to perform the essential functions of his or her job.  An employee cannot take unlimited unpaid leave under the FMLA. However,  An employee is limited to twelve work weeks of leave within a twelve-month period, unless the leave is to care for a covered service member with a serious illness or injury if the employee is an immediate family member of the service member.  In those cases, FMLA is limited to twenty-six workweeks of leave in a twelve month period.  As both FMLA and workers’ compensation cases involve an employee taking protected leave to give time to heal from an injury or illness, employers need to understand that the two laws are in place for very different reasons.  An employer cannot force an employee to take FMLA leave if there is a qualifying workers’ compensation claim.  When an injury or illness would qualify the employee for leave, an employee must provide leave to the employee under whichever law provides the employee with the greatest rights and benefits.  Accordingly, as workers’ compensation provides disability payments and medical expenses, an employer cannot force an employee to take time off under the FMLA if the employee also would qualify for time off under workers’ compensation.

We have extensive experience helping business owners understand how the various labor provisions interact.  Contact us today for a consultation.

What Workers’ Compensation Won’t Cover

Workers’ compensation is an essential component of the social welfare system in California.  With workers’ compensation, an employee can receive medical expenses to treat the work-related injury, replacement for lost wages, and permanent benefits if the disability is permanent.  Workers’ compensation benefits can also help to provide training for a new career if the injured employee is permanently disabled and unable to return to work in the capacity he or she previously worked.  There are, however, some things that workers’ compensation will not cover.

One thing that workers’ compensation will not cover is if the employee has an injury that is self-inflicted.  For example, if an employee intentionally slices his arm on a piece of equipment, workers’ compensation would not cover that injury.  Employers should also be cautious of these injuries, as an employee trying to claim workers’ compensation benefits for an injury that was intentionally self-inflicted may also be committing insurance fraud.

Another way that an employee’s injuries may not be covered by workers’ compensation is when the injury was not incurred during the course and scope of the employee’s employment duties.  One of the most common examples of this type of injury is when an employee gets in a car accident during work hours, but he or she is not engaged in work-related activities. For example, if the employee is on a lunch break or running a personal errand, that would not be in the course and scope of employment, and therefore any injury sustained during an accident would not be covered.

Third, some pre-existing injuries will not merit a new workers’ compensation award.  Employers need to keep in mind that if a pre-existing injury is aggravated and worsens as a result of employment, then the employee may be able to recover under workers’ compensation. In other words, whether an employee can recover under workers’ compensation at your business as a result of disability and injury related to a pre-existing injury is a delicate and sometimes complicated inquiry.

Finally, if an employee is injured during an altercation at work that he or she started, then workers’ compensation may not cover those injuries. For example, if your employee assaults a customer, then any injuries sustained in the ensuing fight would not be covered.  However, if the employee is assaulted first by the customer, the injuries may be covered.

If you have questions about whether the circumstances in your case will qualify for workers’ compensation, call us today.  We can help you understand the workers’ compensation system and how your business fits within it.

Can I Delay Benefits If I Suspect My Employee of Workers’ Compensation Fraud

Workers’ compensation fraud costs Californians tens of millions of dollars each year.  The state of California has put into place many programs, laws, and departments to help combat this type of fraud.  The programs put in place help stop fraud before it starts, as well as prosecuting those who have already committed these crimes.  It is admirable for employers to want to help with the efforts to put a stop to fraud.  Some employers may wonder if they can delay workers’ compensation benefits if they suspect their employee is committing fraud.

The short answer to this question is “no.”  There are a lot of potential red flags for workers’ compensation fraud that an employer can be on the lookout for.  These include such issues as a lack of witnesses to an injury, delayed reporting, or the first report of an incident coming straight for an attorney.  When an employer receives a report of an incident with one of these fraud red flags, it may be tempting to refuse to take the written report or even to hold off until the employee can have a medical evaluation.  This is not permitted under California law.  Even if you suspect your employee is faking the injury, you are still required to provide your employee with a workers’ compensation form within one working day after the employee reports the work-related injury or illness.  Once the employee returns the form, the employer will have one working day to forward the claim form to the claims administrator of the workers’ compensation insurance company.  There are no exceptions to this for potential fraud.

Not all suspicions of fraud come at the very beginning of the case.  It is possible that as the case progresses, an employer may see other signs of fraud, such as social media posting showing the employee is active, potential medical fraud, or malingering.  If this occurs, an employer still does not have the right to put a halt to or somehow intercept the payments that are being made to the employee under workers’ compensation.  Instead, the employer should carefully document all concerns and report them to his or her workers’ compensation claims administrator.

We have extensive experience with helping our clients understand the role of their business in fraud prevention.  Call us today to discuss your case and what we can do to help.

Investigating a Workers’ Compensation Claim

There are many important components of a workers’ compensation case.  Proper paperwork, obtaining medical treatment, and sorting out reasonable and necessary accommodations are just a few examples.  Investigating a workers’ compensation claim is also an important component.

When an employee sustains a work-related injury, the first step is, of course, to make sure that employee receives the necessary, immediate medical treatment.  Once it is confirmed that the situation is no longer an emergency, the employer can then turn to the administrative side.  An employer is required to provide the workers’ compensation claim form to the employee within one working day of being notified of the injury.  The employer should also move forward to an investigation.

Investigating a workers’ compensation claim does not mean that you suspect the injured employee of lying or taking other fraudulent action.  Moreover, regulation 10109(a) provides that a claims administrator “must conduct a reasonable and timely investigation upon receiving notice or knowledge of an injury or claim for a workers’ compensation benefit.”  This means that an investigation is not just advisable, but required.  If the investigation is not completed within the time limit, then section 5401 provides that the injury shall be presumed to be compensable under workers’ compensation.

A proper investigation often means collecting evidence from more than one source.  If there is video surveillance covering the area where the employee sustained an injury, that video surveillance footage often provides crucial and best information about how the injury occurred.  Eye witness accounts also may provide important information.  Eye witness accounts should be gathered immediately, as the longer you wait to record that information, the less likely it is that the witness statements will be completely accurate.  An investigation can also include talking with other employees or supervisors who work in the same area, even if they did not witness the event.  They may have information about how work is usually performed, how equipment functions, and the likelihood that the injury occurred in the manner explained by the injured employee.

An investigation can and should also include a review of social media.  Although the vast majority of workers’ compensation claims are valid, a small percentage are fraudulent.  Following social media can provide claims administrators or employers with clues that the employee is not as injured as claimed.

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.

Most Common Workplace Injuries

Unsafe working conditions can result in injuries to employees, ranging from minor to severe.  Most employers spend considerable time and effort trying to ensure their business is as safe as possible to prevent injuries to employees and clients alike.  When taking these steps, employers should keep in mind some of the more common types of workplace injuries, as this can help employers take the focused efforts necessary to prevent these injuries.

Back and neck injuries from lifting heavy objects are among the most common workplace injuries.  Almost fifty-seven thousand workers per year in California are injured at work when they are lifting heavy objects at work.  Employers should take measures to make sure their employees are educated about safe lifting techniques and are provided with the appropriate safety equipment, such as weight belts.

Another very common type of injury is a repetitive motion injury.  Work that requires repeated motions can result in nerve, muscle, tendon, or ligament damage.  Most people are familiar with carpal tunnel syndrome, which is a type of repetitive motion injury.  It is not, however, the only type of repetitive motion injury.  Any type of task which requires an action that is repeated over and over can result in this type of injury, such as reaching, twisting, or even lifting.

Slip and fall injuries are the third most common workplace injury reported in California, with about 30,000 people per year injured in this way at work.  It is not uncommon for there to be wet or slippery floors in some types of work environments, such as dishwashing areas in restaurants, pool decks at a gym, or wet pavement after a rainstorm.  Even if the employer is not responsible for the conditions that lead to the slippery conditions, the injured worker can still apply for workers’ compensation benefits.

Cuts and scrapes are also very common work-related injuries.  Minor cuts or scrapes may not require anything more than a bandage, but some lacerations can be very serious, even requiring surgery to repair and physical therapy to completely recover.  Almost twenty thousand workers a year in California file for workers’ compensation benefits due to cuts or scrapes.

We have experience with helping our clients understand their obligations to their employees in the workers’ compensation context.  Call us today for a consultation.

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