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.

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.

Maximum Medical Improvement

All conscientious employers take as many steps as they can to reduce the likelihood their employees will sustain work-related injuries.  Even if all the right measures are taken, an employee may still sustain a work-related injury.  The workers’ compensation system will provide the employee with medical treatment costs and temporary disability benefits.  In some cases, the employee’s work-related injury may be so severe that it will never completely heal.  In such a case, the worker will be deemed to be permanently disabled.  Whether an injury is still healing or is determined by a medical professional to be one that will never heal is essential to the type and duration of benefits provided through workers’ compensation.  Maximum medical improvement is the term used in workers’ compensation cases for when an injured worker’s condition will not improve.

When an employee sustains a work-related injury, hopefully the employee is able to receive treatment and recover fully.  However, when an employee has received treatment and a medical professional has determined the employee’s condition is unlikely to improve, then the employee will be said to have reached maximum medical improvement.  Under California law, maximum medical improvement is defined as the time when the medical condition “is well stabilized, and unlikely to change substantially in the next year with or without medical treatment.”

A medical professional is the only one who can make the determination that an employee has reached maximum medical improvement.  The medical professional will write a report setting out the fact the employee has reached maximum medical improvement.  The report will also include an impairment rating.  The impairment rating will determine the amount of permanent disability benefits the employee will receive, as the employee’s disability rating directly impacts the amount of benefits.

Employers need to remember that the insurance company or the injured worker can both elect to dispute the medical professional’s assessment.  If this happens, then the disputing party is entitled to get a second opinion from another physician.  The physician will be chosen from a list of Qualified Medical Evaluators that is maintained by the Division of Workers’ Compensation.

If you have questions about workers’ compensation or disability ratings, contact us today.  We can talk with you about workers’ compensation and your business.

Vouchers and Workers’ Compensation

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

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

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

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

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.

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.

Permanent Total Disability

All good employers work hard to make sure their employees have the safest possible working conditions.  Keeping safety manuals up to date, providing regular safety training, and making sure that all equipment is kept in good repair are just a few ways that employers can help safeguard their employees and guard against workplace accidents.  Unfortunately, despite the most careful steps, workplace accidents usually will happen.  When an employee sustains a work-place accident, he or she can apply for workers’ compensation.  Employees will receive one of four disability classifications after seeing medical professionals: temporary partial disability, temporary total disability, permanent partial disability, and permanent total disability.

A doctor can classify permanent disability anywhere on a scale of zero to one hundred.  Only a classification of one hundred will result in the employee being classified as permanently totally disabled.  It is important to note that the classification of the disability at one hundred does not mean that the employee’s condition will not deteriorate or worsen in the future.  Instead, it means that the doctor has determined that the employee’s injuries meet the minimum threshold necessary for total disability.

There are two ways that an employee may demonstrate that he or she is permanently and totally disabled.  California labor code 4662(a) provides that certain conditions mean a conclusive presumption of permanent total disability.  These conditions are: 1) loss of both eyes or sight in both eyes; 2) loss of both hands or loss of use of both hands; 3) an injury resulting in practically total paralysis; or 4) an injury to the brain resulting in permanent mental incapacity.  For this presumption to apply, the incident resulting in the injury must be an industrial accident.  A prior injury cannot contribute, for example, to the loss of sight in both eyes. Rather, the industrial accident subject to the current workers’ compensation claim must have resulted in the loss of sight in both eyes.

The other way for an employee to demonstrate permanent total disability is under Labor Code 4662(b), which provides that all other claims of permanent total disability must be determined “in accordance with fact.”  Although the labor code does not specifically define what this means, case law indicates that Labor Code 4660 will govern how the finding of permanent total disability will be made.

We have extensive experience in assisting our clients to understand the different types of disability in workers’ compensation suits and how they may impact their business.  Contact us today for a consultation to talk about your business and its future

What Is Permanent Disability?

As a business owner, you take every measure possible to reduce the chance of injury to your employees as much as possible.  Unfortunately, no matter how much you strive for an injury-free work place, it is overwhelmingly likely that an injury will eventually occur.  If during the course and scope of employment, your employee sustains an injury, he or she will likely be entitled to receive workers’ compensation benefits.  The type and percentage of disability is a central component of disability claims.

The California Department of Industrial Relations defines permanent disability as “any lasting disability from your work injury or illness that affects your ability to earn a living.”  If an employee is permanently disabled, he or she will be entitled to permanent disability benefits, regardless of whether that injury renders him or her unable to work in the future.  In most cases, permanent disability is determined through Whole Person Impairment (WPI).  This will be determined after the employee is examined by his or her doctor or a Qualified Medical Evaluator.  The doctor or QME will determine the percentage of impairment level, meaning how the injury will impact the employee in his or her ability to work.  The QME will use the standards established by the American Medical Association in making this determination.  The impairment level will then be reduced to a percentage, using a formula which also takes into account the employee’s age and occupation. In cases involving psychological injuries, the injury must either be categorized as catastrophic or the employee must have witnessed a violent crime in the course and scope of employment.  Taking all of these elements into account, the disability evaluator or the judge will then use the statutory formula and decide the amount of permanent disability the employee is entitled to receive.  The amount the employee will be entitled to receive will also be impacted by the date of the injury in addition to the wages paid to the employee before he or she was injured.  The permanent disability benefits typically begin being paid after the end of temporary benefits and the doctor indicates that the injury has “stabilized.”  This means that the injury will not heal or improve any more.

If you have questions about disability payments to your employees, contact us today.  We look forward to discussing workers’ compensation with you and what we can do to help protect you.

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