Time Limits and Workers’ Compensation

In the wake of an employee injury at your business, there are many issues that need to be taken care of.  First and foremost, the employee will need to receive medical treatment to address the injury or illness.  Once the dust settles, you will likely be aware that there are procedural issues involved in commencing and moving forward with the workers’ compensation system.  Time limits involved in workers’ compensation are essential to observe, just as in every other civil case.  If your business is facing a workers’ compensation case, you need to have a handle on some of the basic time requirements and limits.

First, you need to understand that there is a time limit associated with reporting the injury.  An employee who has sustained a work-related injury has thirty days to report the injury.  If he or she fails to report it, then there is a chance that he or she will lose the ability to collect workers’ compensation benefits.  People involved in these cases need to understand that the thirty-day time limit can be complicated to calculate.  The deadline starts to run when the injured worker was injured or when the injured worker had reason to believe the injury was work-related.

Another important timeline to understand in the California workers’ compensation system is the deadline by which the workers’ compensation insurance company must respond to a claim for workers’ compensation.  The insurance company must respond to the claim within ninety days.  If the insurance fails to respond, then the law presumes the claim has been approved.

Employers and employees should also keep in mind that there are time limits regarding how long an injured employee may continue to receive benefits.  For most injuries, if an employee is ruled to be temporarily disabled, he or she can receive a maximum of one hundred and four weeks of temporary disability payments in a five year period.  There are, however, exceptions, such as when a worker has sustained severe burns or chronic lung disease.  If that is the case, an injured worker may receive benefits for two hundred and forty weeks.

We have experience with helping clients understand important timelines during workers’ compensation cases.  Call us today for a consultation.

How Long Will My Workers’ Compensation Case Take?

Being involved in litigation is never pleasant.  Litigation means conflict, and if you are running a business, you likely do not have the time or energy to devote to this extra struggle.  If your employee has sustained a work-related injury, it will come as no surprise when a workers’ compensation case follows soon thereafter.  Once you know that the workers’ compensation case is pending, you likely want to know how long it will take until the case has been resolved.

Unfortunately, the answer to this question is “it depends.”  Cases can vary wildly in length due to variance in complexity, the seriousness of the injury, and whether you or your insurance company disagree with the medical assessment, just to name a few reasons.  If there is a suspicion of fraud, the case can become even more complicated and lengthy.  In a nutshell, the more detailed and complex the case, the longer it is likely to take.  This is because it is likely to take a longer time to gather the evidence needed for each side to prove his or her respective position.  All that said, if the case is straightforward, the injury relatively minor, and neither side disagrees about any issues, the case could be potentially over in as little as a couple of months.  The parties are free to reach an agreement at any point during the case, even at the very beginning.  Employers should be advised, however, that any settlement agreement must be approved by the workers’ compensation judge.  It is possible for a judge to reject the settlement, even if the employee, the employer, and the insurance company have all signed the agreement.  The judge will examine whether the settlement is adequate considering all of the circumstances.

There are some areas of the case that are particularly prone to delaying the case.  One area is filing the claim.  Without the claim of injury, the case cannot move forward.  Investigating the claim can also be a source of delay, as the investigator has ninety days from the date the claim is filed pursuant to labor code 5402(b).  If there is a dispute about whether an injured employee is permanently impaired.  If that happens, either side may request an assessment of a qualified medical examiner.

If you have questions the timeline of a workers’ compensation case, call us today.  We can talk to you about your case and how long it may take.

Workers’ Compensation and Product Liability

The workers’ compensation system has an extensive system of legislation determining what type of injury is eligible under the system.  Workers’ compensation legislation also provides that the system is a “no-fault” system.  This means that the employee is not obligated to prove that the employer’s negligent or intentional conduct was the direct or indirect cause of the conditions that lead to the work-related injury.  The system also limits the ways in which an injured employee can seek to recover; an employee is generally prevented from filing a civil suit in court while also pursuing recovery through workers’ compensation.  One of the exceptions regarding this rule involves product liability.

Product liability actions mean that the manufacturer of a product can be held liable in some situations when the equipment malfunctions and causes injury.  Product liability comes into play with workers’ compensation most often when an employee is injured by defective equipment in the workplace.  The employer can then seek to recover or receive reimbursement from the manufacturer for the costs the employer has had to pay through workers’ compensation.  For example, if an employee is badly burned when an oven malfunctions and the worker then files for workers’ compensation, the employer can then seek to recover the money it had to pay to the employee from the manufacturer of the oven.

Another way that products liability can figure into workers’ compensation is through the operation of a power press.  Some employers may be tempted to remove certain safety precautions installed on power presses in the interest of increasing productivity and profit.  A power press is specifically identified as any material-forming machine used to die, press, impact, stamp, punch, or extrude material.  Power presses do not income those machines simply used to cut material.  Under California Labor Code § 4558, if an employer knowingly removes the guard, the employee may be able to recover both in civil court and in through workers’ compensation.  However, if a manufacturer-installed the press, or designed it in such a way as to make it unsafe, the manufacturer may be on the hook for the employee’s injuries instead of the employer.

We have extensive experience helping our clients understand how products liability fits into workers’ compensation.  Call us today to talk about your case and your business.

Do I Have a Right to My Employee’s Medical Records?

Workers’ compensation can be a confusing process for both the injured employee and the employer.  Like other civil litigation, workers’ compensation requires a large amount of paperwork.  There are many forms that need to be filed in a timely manner, the employee will have to file paperwork starting the claim with the court, and doctors will need to fill out and return forms concerning the employee’s injury.  Medical conditions can be just as complicated and confusing for laypeople as the workers’ compensation claim itself.  If your business is facing a workers’ compensation case, you may be wondering if you can get a copy of your employee’s medical records.

The short answer to this question is “yes.”  Although employees may balk at this as it seems like an invasion of privacy, it is important for employees and employers both to understand that medical records can be crucial to the workers’ compensation process because an employee’s claim can be impacted by the existence of a pre-existing injury.  For example, if your worker is claiming he or she has developed carpal tunnel syndrome during the course and scope of employment, the employee can be forced to disclose medical records that show that he or she has sought treatment for the same or similar condition in the past.

Employers should keep in mind, however, that an employer cannot force an employee to provide copies of all medical records, despite the lack of connection between the work-related injury and records of past medical conditions.  Taking the same example of the employee claiming he or she has developed carpal tunnel syndrome, the employer could not likely require the employee to provide copies of medical records concerning skin cancer treatment.  Employers should also keep in mind that the Health Insurance Portability and Accountability Act (HIPAA) also applies to workers’ compensation cases.  The purpose of HIPAA is to help protect the privacy and security of medical records.  In most situations, a person would need to sign a release for another entity to receive a copy of health records. Workers’ compensation cases have a limited exception, allowing relevant medical information to be released without individual authorization from the injured employee.  However, the medical records will only be disclosed to meet the minimum required information.

We have extensive experience helping our clients understand the type of information they may have a right to during a workers’ compensation case.  Call us today for a consultation.

Workers’ Compensation Mediation

Civil litigation has a reputation for being complicated and dragging on for months or even longer.  Workers’ compensation is no exception, and when the sides disagree about central issues, the case can become complicated and lengthy.  As a way to cut down on the time and expense involved in litigation, many people are turning to mediation.  During mediation, the two sides will sit down with a neutral third party who will try to facilitate a settlement.  Mediation allows the two sides to come to an agreement that fits their needs and preferences.  If your business is facing a workers’ compensation suit, you should know what to expect from workers’ compensation mediation.

During a workers’ compensation mediation, you and the employee will both appear and discuss the case with the mediator.  The mediator is not a judge and cannot force either side to settle.  Instead, the mediator’s job is simply to help the two sides communicate and try to reach common ground on some or all of the issues.  You and the other side will both be able to present discussion and argument to the mediator about the merits of your respective positions.  Neither of you will be under oath, and the rules of evidence that are applicable in a courtroom are not applicable during mediation.  Typically before the parties arrive, the employee and the employer (or the employer’s insurance company) will have sent a detailed position statement to the mediator outlining the details of the case and the source of contention.  It is usually helpful for both sides to bring all relevant documents, especially if the parties have already completed discovery.

During mediation, the sides can discuss any part of the case that is still in disagreement.  In general, the mediator will put the two sides in two different rooms and go back and forth between the two, trying to help them find common ground.  It can take hours for an initial settlement offer to be made, and the offer is usually followed up by a counteroffer.  If the parties are able to reach a settlement on at least part of the case, the agreement will be reduced to writing and the parties will sign.  The agreement will later be presented to the court for the judge’s signature.  IF the parties are unable to reach an agreement on all of the issues, they can still proceed to a final hearing on only those issues that remain.

We have experience assisting our clients in workers’ compensation mediation.  Call us today and we can talk about your case.

The Role of the Qualified Medical Examiner

There are many important steps during the workers’ compensation process.  The employee and employer will both be required to file particular paperwork and may have to attend court.  The employee will also need to receive medical treatment.  The medical attention will be not only for the purpose of treating the injury, but also for assessing the employee’s injury and assigning a disability rating.  One of the medical care providers the employee will likely need to meet with is a qualified medical examiner (QME).

The qualified medical examiner is a doctor that is licensed to practice medicine in California.  The QME is also certified by the Division of Workers’ Compensation Medical Unit in his or her area of expertise.  The QME is meant to be able to provide an unbiased opinion about the injured employee’s injury.  The opinion of the QME can have a serious impact on the outcome of your case.  The QME provides an opinion on the disability rating of the injured employee, which in turn has a direct impact on the length and amount of workers’ compensation benefits an employee may receive.

The most common way that an employee will need to be assessed by a QME is after the injured employee has been given a permanent disability rating by his or her treating physician and you and your workers’ compensation insurance provider disagrees with the rating.  You and the insurance company can then request that the employee submits to a QME examination.  The employee will be given a choice of three different QMEs in the area that he or she can choose from.  The relationship between the employee and the QME is different than a typical physician-patient relationship.  The examination by the QME is a  “medical-legal” evaluation.  Before the employee arrives at the QME’s office, the file will have already been sent over to the QME for review.  The insurance company will have sent over a list of questions to the QME that they want answered based on the treatment the employee has already received.  The QME will discuss the injury and the treatment received with the employee.  The QME will then complete a report about the injury, detailing his or her findings.  The QME is required to send a copy of the report to both the insurance company and the employee.

If you have questions about the workers’ compensation process, call us today. Contact us today for a consultation to talk about your business.

Workers’ Compensation Audits

If you have your own business, you likely know there are many regulations that you need to comply with, ranging from federal tax laws to local zoning ordinances.  In California, you will also need to make sure your business complies with all the requirements of the California Labor Code, including the requirement that almost every business must carry workers’ compensation insurance covering all of their employees.  In addition to complying with the law, you will need to cooperate with your workers’ compensation insurance carrier.  One way you will need to cooperate workers’ compensation insurance carrier will be during a workers’ compensation audit.

Workers’ compensation insurance carriers will need to comply with their annual workers’ compensation audit.  It is likely that when your policy is set to expire, you will receive a letter or a phone call informing you that it is necessary to complete a workers’ compensation audit if you wish to continue using that company for workers’ compensation insurance.  Keep in mind that the letter or phone call may come from a company other than your workers’ compensation insurance provider, as many large insurance companies outsource their audit process.

In general, the audit process exists to make sure that your business still has the proper type and amount of workers’ compensation insurance.  For example, if your business has grown from 50 employees to 250 employees, it is likely your payroll will increase your insurance premium.  In general, auditors will request documents including tax forms, payroll records, and certificates of insurance if you have hired any subcontractors.  If you are unable to provide licenses and certificates of insurance for subcontractors, your insurance company will likely charge you additional premium for subcontractors’ workers’ compensation insurance.  They will also ask about job descriptions for each of your employees.  One way you can facilitate the auditing process is to ask the auditor if there is a specific order in which he or she would like the papers organized.

During the audit, your auditor will aim to make sure your business is placed in the correct rate class.  The rate class code has a direct impact on your insurance premium.  If you feel that you have been misclassified, you should immediately discuss the issue with your auditor.

We have extensive experience helping business owners understand their rights and responsibilities, including concerning workers’ compensation audits  Contact us today for a consultation.

My Employee is Injured But I Don’t Have Insurance

The area of workers’ compensation law is one that is complex and nuanced.  Employers know that it is important to follow California rules and regulations about how to conduct their business, including abiding by the workers’ compensation laws.  While there are a variety of code provisions that impose affirmative duties on an employer in the workers’ compensation context, one of the most important is the almost universal requirement for employers to carry workers’ compensation insurance.  If you have failed to follow this provision and your employee has sustained a work-related injury, you may be wondering what are the important next steps.

The first step that you should take if you failed to carry workers’ compensation insurance and the employee has sustained a work-related injury is to retain a skilled attorney.  Failure to carry workers’ compensation insurance can result in severe civil penalties or even criminal prosecution.  Accordingly, you need to consult an attorney immediately to protect yourself and your business.

Next, you need to understand that just because you failed to carry insurance will not mean the business will not be responsible for medical bills.  To the contrary, an employer can still be held responsible for payment of all medical bills associated with the treatment of the work-related injury.  In addition, unlike a typical workers’ compensation case, there is no law restricting the employee from filing a civil lawsuit against the employer.  In this type of lawsuit, the employer will be presumed to have acted negligently and cannot use the defense of contributory negligence.  The result can be a very sizeable civil award to the employee.

If your business does not have the resources to pay the benefits for the injured employee, the Uninsured Employers Benefit Trust Fund can pay the workers’ compensation benefits. After the  case has been resolved and a final sum of damages awarded, the UEBTF can pay this amount to the employee.  The employer will be responsible for reimbursing the UEBTF for everything it has to pay out to the employee.  To request payment of workers’ compensation benefits from the UEBTF, the employer must apply for payment and provide certain documentation.  Ensuring your employee receives compensation from the UEBTF does not mean that you cannot be fined or even incarcerated for your failure to carry insurance.

We have externsive experience with helping clients when they have failed to carry the required insurance.  Call us today for a consultation.

What Is In the “Course and Scope of Employment?

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

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

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

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

Documenting Injuries

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

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

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

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

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