Safety Committees

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

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

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

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

Course and Scope of Employment

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

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

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

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

How Is Disability Determined?

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

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

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

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

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

Out of State Injuries and Business

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

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

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

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

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

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

Can an Employee Sue Me In Civil Court?

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

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

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

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

What Is the Difference Between Removal and Reconsideration?

When working in the legal system, it is essential to have a firm understanding of the procedures and rules if you are to be successful in your claim or defense.  Workers’ compensation is no exception, and to make sure that your business is protected, having expert legal advice in addition to some basic knowledge about the process can be the difference between successfully defending a claim against your business and having to pay an unfair judgment.  If your business is involved in workers’ compensation litigation, it is possible that the judge could make a decision with which you do not agree.  If that occurs, you have two options to attempt to overturn that decision.

The first option is called a Petition for Reconsideration.  If you have received a final order in your workers’ compensation case from the WCJ, you can file a Petition for Reconsideration.  Under California Labor Code § 5900, a Petition for Reconsideration asks the Workers’ Compensation Appeals Board to intervene in the case.  California case law provides that a final order is one that “determines any substantive right or liability” of the parties in the case.  California Labor Code § 5910 states that the person wishing for the WCAB to reconsider the WCJ’s ruling has just twenty days from the order to file the petition.  The available grounds to file for reconsideration are: 1) the WCJ acted without power or in excess of its power; 2) the order or award was procured by fraud; 3) the evidence is no sufficient to justify the findings of fact; 4) the existence of newly discovered information that was not available previously; or 5) the findings do not support the order or decision.  Filing the petition also has the effect of suspending the order for ten days.

The other option is a Petition for Removal.  In contrast to a Petition for Reconsideration, a removal request is asking for relief from an order that is not a final order.  As with the Petition for Reconsideration, the Petition for Removal must be filed within twenty days of the order from which the requesting party seeks relief.  To be successful, the appealing party must show: 1) the order from the WCJ will result in prejudice; 2) the order will result in irreparable harm to the appealing party; and 3) reconsideration after the final order will not provide an adequate remedy.

Deciding when and how to appeal a workers’ compensation order is a difficult decision.  Contact us today to talk about your proceedings and what we can do to help protect your business.

What Is the Workers’ Compensation Appeals Board?

As a business owner, you know that taking the right steps for planning, financing, expanding, licensing, and other related activities is essential.  Understanding the right procedures can be the difference between your business’ success and failure.  This is just as true with the workers’ compensation system.  The procedure your business will go through during this process is important to understand in order to protect it and its future.  When a claim is made against your business for workers’ compensation benefits by an injured worker, the claims are usually informally resolved between the injured worker and the insurance adjusted.  If the claims cannot be informally resolved, the issues will be resolved by the workers’ compensation judge (WCJ).  There are a wide variety of issues the WCJ may be asked to decide, ranging from the level of injury sustained by the employee to the authorization for medical treatment.

If either party disagrees with the decision made by the WCJ, that party may appeal that decision to the Workers’ Compensation Appeals Board (WCAB).  The WCAB is made up of seven judges, called “Commissioners,” that are appointed by the governor, and then confirmed by the state senate.  The Commissioners serve in terms of six years.  Out of the seven, three will preside over an appeal.   The appeal is called a Petition for Reconsideration.  As with any appeal, there are strict deadlines, so having an experienced attorney for your Petition for Reconsideration is essential.  Missing a deadline could mean that you waive your right to request reconsideration of the WCJ’s decision.

After the Petition for Reconsideration is filed, each of the three Commissioners assigned to the case will review the petition.  Note that filing a Petition for Reconsideration with the WCAB does not mean that you have a full trial in front of the WCAB; rather, it means that your attorney will file particular documents with the WCAB explaining why the petition has merit.  There are several possible outcomes for the Petition.  First, it is possible the WCAB will simply dismiss the request.  Second, they could affirm the decision of the WCJ and deny the request for reconsideration.  Third, they could grant the request for reconsideration and return the case to the WCJ for additional proceedings.  Finally, they could grant the request for reconsideration and render their own decision.

If you have questions about the workers’ compensation process, you need an experienced team on your side.  Contact us today and we can discuss the procedure and how they will impact your business.

What Is Subrogation?

The workers’ compensation system was established in 1911 by the California legislature to help provide relief for workers who were injured in the course and scope of their employment.  The system is what is called a “no fault” system, which means that the employee is not required to prove that the injury was the fault of the employer in order to recover for his or her injuries and ongoing disabilities.  In some cases, however, a third party’s actions or inactions may have contributed to the employee’s injury.  Under California Labor Code § 3850, et seq., an employer or the employer’s insurance company may exercise their right to subrogation in this instance.  Subrogation is the right of the employer and/or the insurance company to recover the amount paid under the workers’ compensation suit against a third party.  There are several ways that an employer may use subrogation to recover these expenses.

An employee may seek to recover against a third party whose negligent or even intentional conduct contributed to the accident causing the injury.  An employee may seek to recover, for example, from the equipment manufacturer for faulty safety systems or may sue a negligent driver for a car accident occurring during the course of the employee’s work.  If an employee files his or her own lawsuit against such a third party, an employer has a couple of options.  One option is to serve a Notice of Lien on all of the parties in the lawsuit.  This type of lien is considered a first lien against any recovery obtained by the injured employee.  This means that if the employee obtains a judgment from the lawsuit against the third party, the lien will be paid right after the employee’s attorney fees and legal expenses are paid.  Another option is to intervene in the law suit.  This means that your business will become a party to the lawsuit and will participate in the litigation.

If the employee does not decide to file his or her own lawsuit, your business or your workers’ compensation insurance company still have the independent right to file a lawsuit against a third party.  You should note that the statute of limitations will apply to your business, just as it would apply to the right of the employee to bring his or her own law suit.

If you have questions about subrogation or workers’ compensation, let us answer them.  Call us today for a consultation.

How Important Are Documents in the Workers’ Compensation Process?

Lawsuits invariably involve a large amount of paperwork. The initial complaint, the response, discovery work, and motions can all contribute to the large volume. Workers’ compensation is no exception to this rule. In fact, meticulous and detailed documentation are essential to the workers’ compensation process. Documents that carefully detail processes and injuries both before, during, and after a work-related injury can drastically alter the course of a workers’ compensation case.

Before a work-related injury ever happens at your place of business, it is vital to make sure you provide accurate information to your workers’ compensation insurance company. Providing the required paperwork to the company in terms of the number of employees and the nature of your business will help make sure that in the event a work-related injury occurs and you have to file a claim on behalf of your business, the claim will not be denied because of inaccurate or incomplete information.

When an employee actually sustains a work-related injury, it is then vital to complete paperwork related to that injury as soon as possible. This paperwork will include the Claim Forms that you must provide to the insurance company. Providing detailed information about how the injury happened, as well as when and where, will arm the insurance company with important information allowing them to identify any red flags for fraud, malingering, or a pre-existing injury. Witness statements from other employees as well as a statement from the injured employee should be secured as quickly as possible to help nail down the details of what actually happened.

Medical documents from the injured employee’s health care provider are also very obviously central to the workers’ compensation system. The medical providers will determine the percentage of an employee’s injury, necessary course of treatment, and whether the injury is temporary or permanent. All of these will be instrumental in determining the amount and length of benefits an injured worker will receive. Moreover, these medical documents will allow for careful review of whether treatment is appropriate for the injury or whether an insurance company may need to call for an independent medical review.

If you have questions about the documents your business will need during a workers’ compensation suit, contact me today at (714) 516-8188. We can talk about your business and its workers’ compensation procedures.

IMR in 2016

When an employee is injured on the job, he or she will need to get medical treatment to proceed with a workers’ compensation claim. The physician will make an assessment of the injury and decide what type of course of treatment will be best to treat and hopefully cure the injured employee. In some situations, an employer can request an Independent Medical Review of the physician’s diagnosis and treatment plan. When a claim is made for workers’ compensation, the claim must go through a “utilization review” process in order to confirm the treatment is medically necessary before the claim is paid out. If the claim is denied, the employee may request an IMR. If an employer believes the claim should not have been approved, the employer may request an IMR. The purpose of instituting the IMR system was done with an eye toward reducing workers’ compensation disputes and speeding settlement, in order to help ease the congestion in the court. A recent analysis done of IMR volume shows that the process is perhaps not meeting its intended purpose.

The California Workers’ Compensation Institute conducted an analysis of almost half a million IMR decision letters from 2014, 2015, and 2016. These letters were from applications submitted to the state after a utilization review physician’s medical service was modified or denied. In 2016, IMR was at record high levels, with 10,477 more cases in 2016 than in 2015. The IMR analysis showed that in over 90% of cases, the IMR upheld the decision to modify or deny a requested medical service. The types of services did not change much, with prescription drug requests comprising over half of all IMRs, 28.5% of which were for opioids. The rate at which the IMRs upheld the decision made by the utilization review varied from 78.9% for evaluation services to 93.6% for acupuncture. The analysis also found that IMR requests varied widely by geographic region, with Los Angeles County and the Bay area representing a disproportionately large amount of IMR requests vis a vis their percentage of involvement in workers’ compensation medical services across the state. Similarly, areas with low population typically had a disproportionately small amount of IMRs, as did Orange County and San Diego.

If you own your own business, you need an experienced attorney to help you navigate the system. Call us today at (714) 516-8188. I can help you understand your business’s obligations and the claims process.

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