Causation, Lung Disease, and Workers’ Compensation

Workers’ compensation is designed to cover a wide variety of work related injuries that your employees may sustain during the course and in the scope of their employment.  Most people tend to think of physical injuries, such as a broken arm or even an amputated foot, but workers’ compensation covers many other injuries, including those from repetitive stress, psychological injuries, or illnesses that may be caused by work place conditions.  One type of illness commonly seen in the workers’ compensation system is lung disease.

Lung disease may happen as a work related injury where a worker has been exposed to certain contaminants that cause lung disease while at work.  There are many different roles that may expose a worker to dangerous fumes, dust, or gases.  For an injured employee to be eligible to receive workers’ compensation benefits as a result of lung disease, he or she will need to prove industrial causation.  Proving industrial causation will require proof of three things: 1) that the contaminants alleged to have caused the lung disease are actually present in the work place; 2) the worker was exposed to the contaminant in the work place; and 3) there must actually be a disease that the contaminants can cause, accelerate, or aggravate.

A worker can prove which contaminants are in the work place in one of two main ways.  The first is eyewitness testimony.  Other workers or even clients or customers can testify that particular materials or conditions were observed in the workplace.  The other way is through the Material Data Safety Sheet.  Federal law requires that employers ensure that these safety sheets are “readily accessible to employees for all hazardous chemicals in their workplace.”

Whether the worker was actually exposed to the chemical is a factual issue.  The employee or other workers can testify that the employee was exposed to the contaminant.  For example, testimony can be introduced which states the employee was observed inhaling fumes from dangerous chemicals.  In other cases, particular tests can help prove exposure.  These tests would be commonly used where the employee has been injured by, for example, mold or asbestos.

Finally, a physician will have to examine the employee.  The medical professional will need to determine that the lung disease was actually caused by exposure to the contaminant.

If you have questions about what industrial injuries are covered by the workers’ compensation system, let us answer them.  Contact us today for an appointment to talk about your business.

Shift Work Disorder

The workers’ compensation system is designed to help protect both the employer and the employee.  The system helps make sure that the injured worker gets appropriate compensation for industrial injuries while also protecting the employer from excessive tort claims.  Injured employees may receive compensation for a wide variety of work related injuries, ranging from broken bones to PTSD to carpal tunnel syndrome.  Shift Work Disorder is one work related injury that may often be overlooked.

Shift Work Disorder is a sleep disorder that usually affects those people who work shifts that overlap with the time most people are sleeping.  In other words, those who often work second or third shift.  Symptoms of Shift Work Disorder include both insomnia and excessive sleepiness.  Unfortunately, regular, quality sleep is essential to continued good health.  Cardiovascular disease, diabetes, and obesity have all been linked to shift work disorder, as well as stomach problems and depression.  Clearly, these problems may also have a variety of other root causes.  Accordingly, any worker who claims to be suffering from any of these conditions as a result of Shift Work Disorder will have to prove that they are an industrial injury.  Proof will need to come from a treating physician, a qualified medical evaluator, or other medical professional.  The employee may have to undergo diagnostic tests, and the medical professionals will also need to review the employee’s medical records to determine whether the condition is a result of Shift Work Disorder.

There are examples in California law wherein cases involving Shift Work Disorder have been taken before the Workers’ Compensation Appeals Board, as these cases can be very fact sensitive.  In one case, the WCAB determined that the worker’s psychiatric injuries were, in fact, attributable to his rotating shift schedule.  Note that in that case, the worker had to provide substantial medical evidence to support his claim.  In another case, the worker collapsed at work and was admitted to the hospital.  Subsequent neurological testing indicated that the initial injury had resulted in permanent damage to his brain.  When the case went to trial, the main focus was not on whether the event had taken place or why, but rather whether the injured employee’s schedule actually qualified as “shift work.”

We have extensive experience helping our clients understand the rights and responsibilities of their business in the workers’ compensation system.  Contact us today to talk about your options.

Beltran v Structural Steel

Although many may think of the workers’ compensation system as quite adversarial, like other civil law suits, workers’ compensation has some unique features which require that employer and employee work together.  After an employee is injured on the job, he or she will visit a treating physician, who may then determine the worker can only return to work with particular physical restrictions and limitations.  When a worker is determined to be permanently disabled, the employer is obligated to provide accommodations to the injured worker so he or she can return to work.  Where returning to the same position is not possible, the employer will offer the injured worker another position that will pay at least 85% of the salary the injured worker was making in the position he or she was working at the time of injury.  If the employer is unable to make such an offer or the employee refuses the job, then the employee may receive supplemental job displacement benefits (SJDB).  These benefits are given in the form of providing a voucher to the injured worker.  The voucher can then be used by the employee to pay for education, retraining, or skill enhancement at particular accredited schools.  Recent case law from the Workers’ Compensation Appeals Board (WCAB) discusses whether the employer and employee may agree that the employee should receive a SJDB voucher during a settlement.

In Beltran v. Structural Steel Fabricators, the worker Juan Pablo Beltran sustained cumulative trauma injury to his head and back due to heavy work over the course of a year while employed by Structural Steel Fabricators.  After initially denying the claim because Structural Steel alleged Beltran did not submit his workers’ compensation claim until after he was fired from the job, the parties eventually entered into a settlement.  The settlement included language that Beltran was not entitled to a SJDB voucher.  The WCJ rejected the settlement, stating that the parties were not entitled to settle the issue of whether Beltran was entitled to the voucher.  The WCAB disagreed.  The WCAB held that when the parties have a good faith dispute as to whether a worker is eligible for a voucher, the parties may agree on eligibility and include that agreement in a settlement.

We have extensive experience helping our clients with reaching favorable workers’ compensation settlements.  Contact us today and we can talk about your business.

Functional Capacity Evaluations

After a worker sustains a work related injury in the course and scope of their employment duties, the worker will need to obtain medical treatment.  This treatment varies depending on the type of injury, and can range from physical therapy to surgery to acupuncture.  The workers’ compensation process will also require that the employee submit to extra testing to provide information to determine issues such as whether the worker is permanently or temporarily disabled and the extent of the disability.  One examination the worker may have to submit to is called the Functional Capacity Evaluation.

The Functional Capacity Evaluation (FCE) is an examination performed by a physician, physical therapist, or other medical professional to measure the level of the injured worker’s functioning.  The purpose of the test is to evaluate and document the injured worker’s ability to perform, or not perform, the essential job related tasks.  The physician will then review the information and evaluate several different areas.  These areas include the demands of the job, when the employee should return to work, whether the employee can realistically return to the same job he or she held before sustaining injury, the employee’s abilities demonstrated when not on the job, the potential required rehabilitation or medical intervention.  Employees may be asked to submit to either a Job Specific FCE, which will determine the employee’s ability to perform the specific tasks for the job they were in at the time they were injured, or a general purpose FCE, which is typically used when the job the employee was in at the time of injury either no longer exists or has been filled during the employee’s absence.  After the FCE is completed, the physician or medical professional will prepare a particular report reflecting their findings.

The FCE will serve as a touchstone for insurance adjusters, attorneys, and employers to all determine whether an employee is ready to return to work and in what capacity.  The FCE can often serve as a reference when determining the employee’s disability rating.  It is possible that in the future, another treating physician will not be able to assign a higher disability rating than what is found in the FCE.  The employer also needs to have a comprehensive understanding of the contents of the FCE.  The FCE will tell the employer what types of accommodations may be necessary for the employee to return to work.  Employers are obligated to provide reasonable accommodations to employees when they return to work during a workers’ compensation case.

We have extensive experience helping our clients understand the workers’ compensation process.  Contact us today for a consultation to talk about your business.

Structured Settlements and Workers’ Compensation

The legal system is often thought of by lay people as being complicated, and legal cases may take months or even years to resolve a case.  Unfortunately, workers’ compensation is not always an exception to this, as the nature of the cases often include injuries that take time to heal before it can be determined whether a worker is permanently or temporarily disabled, the type of accommodation the worker requires, or whether the worker can even return to work at all.  Both sides are often looking for ways to shorten the process and come to a settlement.  With a settlement, the parties can avoid the time and expense of a court case that drags out and costs both sides dearly.  One way to complete this in a workers’ compensation case is a structured settlement.

A structured settlement is a settlement agreement wherein the employer or its insurance provider agrees to make a series of periodic payments to the injured worker (or the surviving family) over a period of time.  Some structured settlements provide that each payment amount will be exactly the same, but other settlements can provide additional flexibility.  In some cases, the settlement may provide for a lump sum to be paid up front before the regular payments start.  This lump sum may be to assist with housing, transportation, or medical needs.  In addition, the settlement can take future cost of living expenses increase or inflation rates into account, and provide for future increases at specific times.  It should be noted that a separate account is often set up to handle the injured workers’ future medical expenses, and that the periodic payments are meant to represent the lost wages.

One advantage for the employee in accepting a structured settlement is that the periodic payments are not subject to federal income taxes.  An employer will often benefit from a structured settlement in cases where there has been a catastrophic injury that is likely to result in a finding of permanent partial or total disability, especially where the injury is so severe that the worker is unlikely to be able to return to meaningful employment.

We have extensive experience helping our clients understand what types of settleemnts may be best for their business.  Call us today to talk about what we can do to help you.

Global Assessment of Function Score

The workers’ compensation system is designed to help workers get medical treatment and get back to work as soon as possible after they sustain a work-related injury.  The system also provides protection for employers, as the workers’ compensation system provides that the worker is typically required to seek compensation through this system and cannot sue the employer in civil court.  A worker can seek recovery for a large variety of injuries, including psychiatric injuries.  As with a physical injury, workers who have sustained work-related psychiatric injuries will need to undergo examination by a medical professional.  Part of the examination will result in a Global Assessment Function Score.

A Global Assessment Function (GAF) score must be obtained by any injured worker who is seeking to obtain permanent disability benefits through workers’ compensation.  In the workers’ compensation system, only psychiatrists or psychologists can evaluate an injured worker and make this evaluation.  The GAF score will be based on whether there is a permanent psychiatric disability and the degree or amount of that disability.  The GAF score is a numeric scale used by appropriate mental health practitioners.  The practitioner will provide a subjective rating for the social, occupational, and psychological functioning of the injured worker.  For this rating, the lower the number, the greater the degree of permanent disability.  For example, someone with a GAF score of 1 would be considered not disabled at all, and fully functioning, whereas someone with a score of 1 would be highly impaired.

There are a variety of issues used to evaluate psychiatric functioning.  These include:

–          Participating in activities including keeping a job, completing hygiene related tasks, and socializing with friends;

–          Social effectiveness, including whether the worker can make and keep friendships and other community contacts;

–          Family interactions, such as whether the injured worker neglects family relationships, has issues with domestic violence or frequent arguments;

–          School performance, including grades and truancy; and

–          Performance at work, including whether the worker can interact effectively with clients and coworkers, regularly attend work, and complete appropriate tasks.

The mental health professional will also look at different issues when evaluating symptom severity.  These include anxiety, insomnia, suicidal ideations, or depression, just to name a few.

We have experience assisting our clients understand the role of GAF scores in workers’ compensation cases.  Call us today to talk about your business.

Communications Between an Injured Worker and Their Physician

The confidentiality between a patient and doctor is well established in the United States, and California is no exception.  Confidentiality is strict to make sure that the patients can fully disclose all symptoms and potential sources of illness or injury without fear that embarrassing conditions will be on display for others to read.  Although employees can typically be secure in the knowledge that their medical conditions are private and protected from their employers, this can change in the case of a workers’ compensation case.

During a workers’ compensation case, the injured employee will need to seek medical attention.  Even after urgent conditions have been addressed, the worker may require ongoing treatment or physical therapy.  The worker will definitely need to be evaluated by a physician or medical professional to determine whether he or she is temporarily or permanently disabled, the degree of the disability, and whether he or she requires limitations or work restrictions upon returning to work.  Clearly, these will be medical conditions that are assessed by a medical professional.  Employers and employees alike should have an understanding of what types of communications remain privileged between the injured employee and his or her treating physician.

The Confidentiality of Medical Information Act contains strict rules and prohibitions on when a health care provider can release information.  There are exceptions, however in the workers’ compensation system.  Communications between the patient and the physician concerning the work related injury will be turned into reports that will be submitted by the physician to insurance adjusters, attorneys, and even the employer.  The employer, attorneys, or an insurance adjuster may also request copies of the actual medical records.  When the treating physician has been the worker’s treating physician for other conditions in addition to the work related injury, however, these medical records will contain information that is completely irrelevant to the work related injury.  In that situation, the physician is restricted from releasing more information than is necessary.  In other words, an employer or insurance adjuster is not entitled to receive a complete copy of the employee’s entire medical record.  The physician is required only to release the information relevant to the injury and whether the employee is able to return to work.

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

How Long Will the Case Take?

The legal system is notorious for being cumbersome and slow.  The workers’ compensation process is no exception.  Workers’ compensation cases, like any other legal proceeding, has many different steps that need to be completed before the case can be resolved.  How long the case will take depends on a variety of different factors.

Any workers’ compensation case begins when the worker who sustained a work related injury files a claim.  The case cannot start until the worker takes this step.  Following the filing of the petition, the claim administrator has ninety days to investigate the claim of injury or illness.  While the investigation is ongoing, the employee does not have to wait for benefits.  Medical benefits must be authorized within one day.  Temporary or permanent disability payments must be made within fourteen days of when there is knowledge of the injury.  However, if the employer offers the employee a job that pays at least 85% of the compensation he or she was making at the time the injury occurred, the fourteen-day timeline does not apply.

Next, some cases require a Qualified Medical Evaluator.  A QME will review the employee’s medical file and make an independent assessment about the injury and the disability.  The QME may need to be deposed by both sides, and scheduling the deposition can take weeks.  After the QME completes his or her assessment, he or she will have thirty days to issue the initial report.  The QME will determine the percentage of disability that the employee has suffered, which will directly impact the amount and duration of benefits the employee will receive.  The employee can dispute the conclusions in the report, and can present a case to the workers’ compensation administrative law judge to ask the rating be adjusted.

The parties will also likely go through a process called “discovery.”  During discovery, the parties will exchange documents and information that may support their respective positions.  Discovery can sometimes be relatively quick, ending after just thirty days, and sometimes can take months if the parties disagree about the process or need to do multiple rounds of discovery.

If you and the other side cannot come to an agreement on a settlement, the case will go before a workers’ compensation administrative law judge.  The judge will then make the ultimate determination of disability rating.  Other issues may also be presented to the judge, such as whether the worker is an independent contractor who would not be eligible for workers’ compensation benefits.

These are just a few examples of the hurdles that must be cleared before a workers’’ compensation case can be completed.  Contact us today for a consultation to discuss the process and how we can help you.

Returning to Work and Accommodations

All employers work hard to make sure that their employees are as safe as possible at work.  Employers invest in the latest safety technology, form safety committees, and provide training all in an effort to reduce the chances an employee will sustain a work related injury.  Unfortunately, this cannot always be avoided.  If your employee is injured and files a claim for workers’ compensation, it is possible that he or she will have to take some time off work to recuperate.  When the employee returns to work, the employer needs to be aware of the responsibilities they have to the employee to potentially provide accommodations to the employee.

Employers in California have an “affirmative duty” to make “reasonable accommodations” for a known disability.  The employer’s duty to provide an accommodation is triggered when the employer has reliable reason to believe the employee has a disability.  The employer does not have to witness the disability personally and the employee has no obligation to specifically request an accommodation before the employer needs to take action.  The employer needs to accommodate the employer’s disability and work restrictions, but the employer is not required to take measures that would constitute an undue hardship.  The employer is also not required to make sure that the accommodations make it possible for the employee to immediately return to the same job or even a job with the same income.  The employer is not required to make a new job position just for the injured employee, but the employer does have to investigate all the available job openings that the employer could qualify for.  For example, if an employee sustains a back injury that makes it impossible for him to perform his usual duties as a jail warden, the employer is at liberty to offer the employee a desk job at a different facility that would accommodate the restrictions on the warden’s physical activity.  The employer has an obligation to engage in an interactive process with the injured employee to ascertain what sort of accommodation may be required.  The employer should look for alternate positions and continue the dialogue with the employee until he or she terminates the process.  The employer should document these exchanges to make sure that there is evidence of the efforts made to accommodate the employee in case the employee brings a suit against the employer for discrimination or retaliation.

Employers should be aware that they cannot treat non-industrial disability restrictions any differently than a disability or restriction a worker may have as a result of a work-related injury.  Employers must be consistent in how they handle all disability issues.

Workers’ compensation is a long process with a lot of requirements for all parties.  Contact us today for a consultation to talk about your business.

Workers’ Compensation and Retaliation

The workers’ compensation system is designed to allow for workers who sustain work related injuries in the course and scope of their employment to receive proper compensation for their injuries and medical expenses.  The amount of the compensation and how long the benefits will continue to be paid vary widely, depending on the nature and severity of the injury.  The workers’ compensation process can take months or even years.  Employers may be tempted to try to get rid of a troublesome, injured worker who has filed a workers’ compensation claim, but California law prohibits such actions.

California law provides that employers may not discharge or threatening to discharge an employee because an employee submits a workers’ compensation claim, files an application to have the California Division of Workers’ Compensation resolve a claim, states an intent to file a claim for workers’ compensation benefits, obtains a disability rating from a physician, settles a workers’’ compensation claim, or successfully wins an award of workers’ compensation.  California courts have also found that “an employer may not discharge an employee because of the employee’s absence from his job as the consequence of an injury sustained in the course and scope of employment.” In other words, you cannot fire an injured employee simply because he or she must take time off work to get medical treatment for a work related injury.

California law also provides that employers may not penalize an injured employee for having a work-related injury or for making a workers’ compensation claim.  Under this provision, the employer is not allowed to taking any retaliatory action that is detrimental to the injured worker.  Of note, not all actions that could potentially adversely impact the worker are necessarily retaliatory.  For example, if an employer puts a policy in place that applies to all employees, stating that they are required to use sick leave for doctor visits, the injured employee would also have to abide by this rule.  Although the employee may be adversely impacted, if the worker is not being treated differently than other workers, the action will likely not be viewed as retaliatory.

We have extensive experience helping our clients understand their rights and responsibilities with regard to their employees.  Call us today for a consultation

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