Who Chooses the Doctor?

The workers’ compensation system provides important rights and responsibilities for both employees and employers.  Employees can rest easy knowing that they can receive benefits and medical care costs if they suffer a work-related injury.  Employers can also feel a sense of relief knowing that the workers’ compensation system means that the employee cannot sue for the injury, except in certain limited circumstances.  Despite these reassuring facts, workers’ compensation does require several important procedural steps.  One of the most obvious is that the injured employee will have to get medical attention.  As the medical diagnoses and care are clearly an integral part of the workers’ compensation case, employers may wonder who gets to choose the doctor for the employee?

The medical care provider plays an essential role in the workers’ compensation case.  The doctor will diagnose the condition and determine if the injury was a result of working conditions.  The doctor will also decide how long the employee must stay out of work and what accommodations are necessary when the employee does return to the work force.  The doctor will also decide when the employee’s medical condition has stabilized and whether the employee has any permanent disability.

Before an injury occurs, an employee has the right to “predesignate” his or her personal doctor.  This means that if and when the employee sustains a work related injury, he or she can go directly to that personal, pre-designated physician for treatment.  California labor code 4600 requires employers to give employees the necessary paperwork to predesignate a treating physician.

If an employee has failed to predesignate a health care provider, then he or she will likely not be able to choose the initial physician that he or she sees for treatment of the industrial injury.  Typically the workers’ compensation insurance provider or the employer itself will have a “medical provider network.”  The employee will need to choose a doctor who is included in that network.  There are some important exceptions to this general rule.  First, if the employee needs emergency care, it is not required that he or she use a physician including in the medical provider network.  In addition, if the employer has failed to provide certain required notices or information, the employee may also not be required to use a doctor in the MPN.

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

Handymen, Nannies, Small Businesses, and Workers’ Compensation

Millions of Americans run their own small business.  Whether that business is the primary source of income for the family or just a side job to help provide supplemental income, business owners are all well aware that there are many regulations surrounding formation and running a business.  In addition, many people choose to employ other individuals for help around the house, including nannies and handymen.  Whether you have a small business or you employ others to help you around the house, it is important that you understand your rights and responsibilities regarding workers’ compensation.

California labor code provides that employers are obligated to carry workers’ compensation insurance.  This is true even if the business has only one employee.  This is also true of businesses which are located outside the state of California but still do business in this state.  In other words, if your business is located in Oregon but you sometimes do business in California, you are stills subject to the California requirement that you carry workers’ compensation insurance.  For a sole proprietorship, the law does not usually require workers; compensation if the business has no employees.  The important exception to this is for roofing contractors.  All C-39 roofing contractors in California are required to carry workers’ compensation insurance and file a valid certification with the state.

It is also important to understand your obligation regarding workers’ compensation insurance if you use the services of a nanny or a handyman.  Under California labor code 3352(h), “any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant” is classified as an employee.  This means that you may be required to carry workers’ compensation insurance for your nanny or handyman.  California law goes on to state that if the person has worked less than 52 hours in the 90 days before the injury was sustained or earned less than $100 in wages during that time, the person is not an employee for worker’s compensation purposes.

We have extensive experience helping our clients understand the rights and responsibilities concerning workers’ compensation insurance.  Contact us today to talk about your options.

Corporations and Workers’ Compensation

Small businesses form the backbone of the American economy.  Millions of people very year start their own business.  When forming a business, a founder has a wide variety of choices concerning the type of business organization.  A business can be a sole proprietorship, a limited liability corporation, a limited partnership, or even a hybrid of more than one of these types.  There are benefits and drawbacks to each type of business structure.  If you are thinking of choosing a corporation as the structure for your business, you need to understand how workers’ compensation interacts with the rules for corporation formation.

One thing that business owners in California need to understand is that almost all employers are required to carry workers’ compensation insurance pursuant to California labor code 3700.  Failure to carry the required insurance can result in severe civil and even criminal penalties for the business owners.  Corporations are not exempt from this requirement.  Forming a business as a corporation can provide important shelters from liability as well as tax advantages, but these advantages do not include de facto exclusion from the requirement to carry workers’ compensation insurance.

Moreover, some relatively recent changes to the California labor code provides that executive officers and directors of corporations must be included in the workers’ compensation insurance coverage.  The exception to this is if the corporation is fully owned by the directors and officers.  If that is the case, the directors and officers may elect to be excluded from workers’ compensation coverage and benefits.  For this to apply the person must be a sole shareholder who is an officer or director of a private corporation.  In that case, that person is excluded from the legal definition of “employee.” Any director or officer wishing to opt out will have to fill out specific paperwork to accomplish this.  The document is executed under the penalty of perjury, and states that he or she meets the qualifications under the California labor code for being exempt from the insurance requirements.  For officers or members of the board of directors of a cooperative corporation and for owners of a professional corporation, there are additional waiver requirements that must be met.

.We have extensive experience helping our clients understand their rights and responsibilities with regard to California’s workers’ compensation insurance requirements.  Call us today for a consultation.

When Is Self-Insurance Allowed

Workers’ compensation is an important part of our legal system.  It provides support and financial assistance for injured employees.  It also provides immunity from additional tort law suits to the employer, except in limited circumstances.  California has the largest workers’ compensation system in the United States.  Under California law, employers are required to carry workers’ compensation insurance.  There are severe civil and criminal consequences for employers who fail to fulfill this responsibility.  There are a few narrow exceptions to this rule, including self-insurance.

Self-insurance means that the employer has assumed the financial risk associated with providing workers’ compensation benefits to their employees who sustain work-related injuries.  Workers’ compensation benefits can include not only the cost of medical treatment for the worker, but also other monthly benefits.  Clearly, this can represent a significant financial burden, especially for smaller businesses.

California law provides that there are strict requirements before a business can qualify to self-insure instead of purchasing a workers’ compensation insurance policy.  A business wanting to qualify for self-insurance must apply to the California Office of Self-Insurance Plans.  The business will have to provide particular information and evidence to support the application. First, the business must have been a legally authorized business form for at least three years.  Next, the business will have to provide three years of certified, independently audited financial statements with the application.  The business will also have to demonstrate it has an acceptable credit rating for three years preceding applying for self-insurance. If the company has subsidiaries, each subsidiary must file its own application.  The application may be filed separately or together with the parent company’s application.  If a current existing company that already has been approved for self-insurance creates a new subsidiary or affiliate, a new application can be filed.  If the parent company can demonstrate solvency, the subsidiary is automatically self-insured for 180 days.  The parent company must file an application for a permanent certificate during that time.

Once an employer is approved by the state to be self-insured, the employer is still subject to state audits.  The audits check for the accuracy of claims reserving practices as well as the correctness of the reported workers’ compensation liabilities.

If you have questions about workers’ compensation and your rights and responsibilities as a business owner, contact us today.  We can talk to you about your business and the workers’ compensation process.

Death and Workers’ Compensation

Workers’ compensation exists to help make sure that an employee who sustains a work-related injury receives appropriate compensation for the injury, as well as reimbursement for medical costs required to treat or cure the injury.  In the optimal circumstance, the injury will be minor, easy to treat, and the employee will be able to return to work soon.  Unfortunately, not all work-related injuries are minor, and there are some cases where the employee dies as a result of the work-related injury.

In the typical workers’ compensation case, the injured employee is the one seeking workers’ compensation benefits.  If the employee dies as a result of the work related injury, the family members will be the ones to file for workers’ compensation benefits.  A family member of the deceased employee is eligible to file for death benefits in workers’ compensation if he or she was totally or partially dependent on the deceased employee for financial support at the time the employee sustained the injury that resulted in death.  The person filing for benefits also needs to show that he or she was a member of the employee’s household or was at least a close relative of the employee.  Common examples of qualifying family members include spouses, children, and parents of the deceased.  California law automatically assumes that certain people were totally dependent on the employee, including minor children, adult children who are unable to earn their own living due to physical or mental incapacity, or a surviving spouse who earned less than $30,000 in the twelve months before the employee’s death.  If a family member does not meet these requirements, he or she will have to provide evidence to the court that he or she meets the requirements under California law.

The amount of death benefits that will be received depends on the number of eligible dependents the deceased employee had.  If the employee had one dependent, death benefits will be $250,000.  Two dependents will result in $290,000 in benefits, and three or more dependents will mean $320,000 in death benefits.  If there were two or more dependents, the benefits will be equally split between all the dependents.

If you have questions about your business and workers’ compensation, let us answer them.  Contact us today for an appointment to talk about your business.

Slip and Falls in Workers’ Compensation Cases

Diligent employers take important steps to reduce the chances that their employees will be injured in the course and scope of their employment.  These steps may include keeping equipment up to date, forming safety committees, and providing regular training to make sure employees are aware of safety features on industrial equipment.  Despite the most diligent efforts to avoid injuries and risks to employees, injuries will often happen anyway.  One of the most basic types of injuries is that sustained after a “slip and fall.”

Slip and fall injuries are not uncommon in any profession, but those where workers spend a lot of time on their feet, such as retail or food service.  Like other industrial injuries, if an employee can demonstrate that he or she sustained injury after falling during the course and scope of their working duties, then he or she may be entitled to workers’ compensation.  For example, a food server who slips and falls on a wet floor in the dishwashing area of the restaurant during a shift could have a valid claim for workers’ compensation.

It should also be noted that slip and fall cases are common in tort law.  Customers or visitors can sue a business or property owner if they sustain injury after falling.  In those cases, the injured person will have to show that the conditions that led to the fall were caused by the business or property owner’s negligent or even intentional conduct.  However, workers’ compensation is a “no fault” system.  This means that the injured employee will not have to show that the conditions that led to the injury were caused by the employer’s negligence.  The employee will only have to demonstrate that the injury was sustained in the course and scope of the worker’s duties.  Note that depending on the duties of the employee, it is not necessary that the injury be sustained while the employee is physically at the employer’s place of business.  For example, if the worker is a courier who slips and falls while making a delivery for the employer, then the injured employee can seek benefits under workers’ compensation.

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

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.

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.

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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