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

Plan Ahead to Protect Your Workers From Injury

Business owners work hard to make sure the future of their business is stable and secure.  This work includes many aspects, such as investing in new technology, reinvesting in the local community, and making sure you have the best staff for your business.  One essential issue for any business owner is to plan ahead to protect employees from injury.

One important step is make sure that your employees and management staff are all properly educated on the most up to date safety protocols for your industry.  This usually includes not only providing up to date service manuals, but also ensuring there is in person, on the job training. Most people think this training is important only for workers who operate heavy machinery, but typical office workers can also benefit from this type of training, as even carpal tunnel syndrome can be a compensable injury through workers’ compensation.

Another essential step is to make sure to provide safety equipment.  Employers need to also make sure that the equipment is kept in good repair, and provide training to ensure the equipment is properly used.  Employers should strive to cultivate a working environment that encourages the proper use of all safety equipment.  Employers also need to create a schedule to make sure the equipment is up to government code and properly cleaned.

Next, employers need to make sure to maintain the proper staffing level.  Workers who are pulling long hours and working a lot of overtime may be exhausted, which can easily lead to work place injuries.  Maintaining the proper level of staff means that the employees are less tired, better able to focus, and less apt to be injured due to fatigue.

Employers should consider developing a safety plan and creating a safety committee.  Safety plans provide concrete guidelines that every employee may study about how to conduct typical tasks.  While this may seem like micromanaging, it can actually result in heightened awareness of potential risks from mundane tasks.  Safety committees can also help reduce injuries by assisting in the development and implementation of these safety plans.  Employers should also encourage an environment wherein employees are comfortable reporting potential health hazards.

If you have questions about workers’ compensation and how to help protect your workers. Call us today.  We can talk with you about your business and how to make sure you are protected.

Ways to Protect your Business In Workers’ Compensation

Small business owners are the backbone of the American economy.  Over half a million new businesses are started every month, and there are almost 28 million small businesses in the United States.  Small business owners all take great pride in building their venture and growing their business.  Any business owner, regardless of the size of the company, wants to protect the business from threats and risks.  Business owners need to be especially aware of how to protect their business during a workers’ compensation case.

One important way to protect your business is to properly investigate every claim.  Business owners should take immediate steps to gather evidence about how the injury happened.  Clearly you will want to make sure to interview witnesses and collect written statements.  However, you should also consult another, neutral employee about the facts surrounding how the injury happened.  Another employee may be able to provide insight that will show how to keep employees safe in the future or even can show that the injury could not have happened in the way the injured employee reported.

Another essential step to protect your business is to make sure that the managers of each department are trained in the proper and immediate steps to take in the event of a work place accident.  Managers need to understand the proper notices and forms that must be provided to the employee, that they cannot refuse to accept a claim, and that it is essential to make sure an injured employee gets medical attention as soon as possible.  Failure to ensure that your staff is properly trained can result in inadvertent violations of important workers’ compensation regulations.

Third, you should be familiar with some common signs of fraud and be on the lookout for red flags.  One common red flag is when there are no witnesses to the incident, or the only witness is a close friend of the injured employee.  Another sign that the claim could be fraudulent is if the employee is inconsistent about the details of the incident that led to the injury.  If the employee refuses medical treatment or tests to confirm the injury, this could also be a sign the employee’s injury is not legitimate.

Finally, small businesses need to make sure to carry workers’’ compensation insurance in accordance with state law.  They also need to report any injuries immediately to their carrier and be truthful at all times.

We are well versed in the workers’ compensation laws in California.  Call us today to talk about how we can help you protect your business

First Steps After your Worker is Injured

It is essential for employers to take all reasonable steps to reduce the risk for injury to their employees.  Keeping your employees safe is not only the right thing to do, it will keep your business running smoothly and make sure your business does not run afoul of state and federal safety regulations.  Almost all employers with very few exceptions are required to carry workers’ compensation insurance.  Although employers have taken the precautions to prevent injuries and purchased insurance in case these measures fail, injuries will inevitably happen eventually.  It is important for business owners to know the first steps to take after a worker is injured.

A workers’ compensation claim starts when an employee notifies the employer of a work-related injury.  The employer is then required to provide the employee with a Workers’ Compensation Form, also known as DWC-1.  The employee will need to fill out the form and return it to the employer.  An employee providing verbal notice is not sufficient to trigger the employer’s obligation to start paying benefits.

After the employer receives the completed claim form from the employee, the employer has fourteen days to accept, reject, or delay a decision concerning the claim.  If the employer delays a decision, it has ninety days to make a final determination.  During those ninety days, the employer must provide up to ten thousand dollars of medical care for the employee.  However, the employer does not have to pay temporary benefits during this time.

The injured employee will need to be assessed by a medical professional.  The employer has the right to select the first doctor.  However, the employee does not have to keep seeing that physician.  The employer is obligated to provide the employee with notification of the Medical Provider Network, which is a list of medical providers that the employee may choose from.  If the employer does not have a MPN, the employee can switch medical providers after thirty days, and can choose any doctor who accepts workers’ compensation insurance.

It is essential that the employer notify his or her workers’ compensation insurance provider as soon as the injury occurs.  If the employer does not have insurance, the employer needs to seek assistance from an experienced attorney, as there can be severe penalties for failure to carry the required insurance.

We have extensive experience with all types of workers’ compensation litigation.  Call us today for an appointment so we can discuss your business and what we can do to help you at the beginning of a workers’ compensation case.

Torts and Workers’ Compensation

California’s workers’ compensation system is designed to protect both the employee and the employer.  The employee is protected because the law provides that if he or she sustains a work-related injury in the course and scope of employment, he or she will be entitled to receive compensation for a variety of things, ranging from medical expenses to biweekly payments for permanent disability.  The employer is protected because there is a system in place to reduce incidences of fraud, ensure that the expectation for reasonable accommodations is clear, and it clear that not all workers are actually covered under workers’ compensation.  The workers’ compensation system is a “no fault” system, which means that the employee is not required to show the employer was at fault for the injury.  California labor code 3600 also provides that the exclusive remedy for an employee injured and seeking compensation is to purse a workers’ compensation case.  In other words, the employee cannot generally sue the employer for negligence or other civil torts.  All of the essential conditions contained in labor code 3600 must be met in order for the rule to apply.

Like so many other areas of law, however, there are exceptions to the exclusive remedy rule.  One exception is called “dual capacity.”  This exception acknowledges that an employee may have multiple different duties toward the employer.  If the injury arises out of an incident that was independent of the employment relationship, the employee may sue the employer.  Another exception is fraudulent concealment.  This will apply where the employer fraudulently conceals the worker’s injury and its connection to the employment, and the concealment exacerbates the injury.  This exception is typically seen in cases involving exposure to toxic chemicals, mold, or asbestos.  A third exception is employer assault or ratification.  This exception provides that although an employer is not typically responsible for injuries sustained when one employee assaults another, the injured employee may bring a civil suit if the employer took affirmative steps by either ratifying the conduct of the assaulting employee or by assaulting the employee. The next exception is for power press machines.  These machines are any material forming machine which uses a die to press, impact, punch, stamp, or extrude material.  A power press does not include the machines that simply cut material with a blade.  If an employer removes the guard on the press or fails to maintain the guard, an injured employee may sue the employer.  Finally, an employee may bring a civil suit against the employer when the employer has failed to obtain and maintain workers’ compensation insurance in accordance with California law.  This type of suit could allow for an injured employee to obtain workers’ compensation benefits while also recovering for negligence.

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

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

Ratings and Reviews

CBLS