Why Do We Have Workers’ Compensation?

Conscientious employers take many measures to make sure that their employees are safe in the work place.  Providing training, keeping equipment in good repair, and forming safety committees are just a few ways that employers can help keep their workers safe.  In the event that a work related injury occurs despite these measures, the workers’ compensation system comes into play.  The workers’ compensation system is a complex series of statutes and case law that has evolved over time.  Understanding why we have this system can help employers and employees alike better comprehend their rights and responsibilities in the context of workers’ compensation.

Workers’ compensation provides protection for both employees and employers.  When an employee sustains a work related injury, it could mean that he or she is completely unable to work and provide for his or her family.  With workers’ compensation, the employee is able to still receive income.  The employee can also receive reimbursement for reasonable medical expenses.  This is designed to help the employee heal so he or she can return to work as soon as possible.  With workers’ compensation, the employee is also protected from the employer taking retaliatory action due to filing a workers’ compensation claim.

An employer also enjoys protection under this system.  The California workers’ compensation system is a “no fault” system.  This means that the employee does not have to prove that the injury occurred as a result of the negligent or intentional conduct of the employer.  The other side to this, however, is that the employee is typically barred from filing a tort claim against the employer to recover for the injuries.  Instead, the employee must seek recompense for injuries through workers’ compensation.  This protects the employer from repetitive or even frivolous law suits.

It is important to remember that for many years, there were no health or safety standards for work place conditions.  As a result, employees were frequently injured or even killed on the job, and their families would have no method of redress.  The workers’ compensation system helps make sure that employers are incentivized to keep their business safe, and employees are not able to make a “double recovery” by suing in tort as well as receiving benefits.

We have extensive experience with the workers’ compensation system and explaining an employer’s rights and responsibilities.  Contact 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

Why Do We Have Workers’ Compensation and How Does it Benefit My Business?

The workers’ compensation system is firmly entrenched in both federal and state laws in the United States. At its core, workers’ compensation is a form of protection afforded to the employee to make sure that he or she receives compensation for a work-related injury. The first employer liability laws were passed in the United States in 1855, and by 1949, every state had created and enacted its own workers’ compensation statutes. The first employer liability statutes made it possible for an employee to sue the employer for injuries resulting from the employer’s negligent or intentional conduct. Today, workers’ compensation is a “no fault” system. This means that the employee is not required to prove any negligence on the employer’s part before being entitled to workers’ compensation benefits. Although it seems at first glance like it might not be “fair” that an employee does not have to prove the injury was a result of wrongful conduct by an employer, this can actually benefit your business. Having to prove fault can make a case last much longer and make it much more complicated. Protracted litigation is not good for your business, so removing the negligence issue can greatly benefit an employer. Workers’ compensation also means that the employee relinquishes the right to sue the employer. An injured employee may file a claim for workers’ compensation to receive medical treatment and, in some cases, salary replacement. In exchange, however, the employee cannot then also file a law suit. This keeps the employee from being able to “double dip,” meaning he or she cannot get paid twice for the same injury. This provision is good for your business because, again, it will help keep you out of court. If you do end up in a workers’ compensation dispute, California has a special court system set up for workers’ compensation, which helps to speed the process. Workers’ compensation will also benefit your business because it provides a powerful incentive to make sure your employees are properly trained and safe. It also encourages the frequent review and revision of safety protocols, and hopefully reduces the number of injuries suffered by your employees.

If you have questions about workers’ compensation and your business, contact me today at (714) 516-8188. I can help walk you through the process and answer your questions about your business.

Attorneys and Cappers Charged in Workers’ Compensation Scheme

California has taken many steps in recent years to help curtail workers’ compensation fraud.  On June 5, 2017, charges were filed against 16 people in an enormous workers’ compensation insurance referral scheme.  California law prohibits individuals or businesses from getting clients (a practice also referred to as “capping”) for attorneys or law offices.  The law also prohibits attorneys from paying cappers for client referrals, and also prohibits copy service companies from offering any consideration to attorneys in exchange for business referrals.  The penal code also prohibits conspiring to illegally referring or paying for clients as well as hiding capping from an insurance company in order to obtain benefits.  The Orange County District Attorney’s Office investigated this case for three years before bringing these charges.

In this case, Carlos Arguello III is accused of forming an “advertising” company in 2005 and securing illegal referral contracts with up to forty other workers’ compensation and personal injury attorneys.  Mr. Aguello is also accused of creating contracts that specified a monthly fee to be paid by these other attorneys in exchange for delivering a specified number of clients each month.  These “advertising” contracts targeted the Hispanic community.  The contracts also required these attorneys to use other companies he owned together with Edgar Gonzalez, which included copy companies.  Several others are accused of capping for Mr. Arguello and Mr. Gonzalez, and distributed flyers and business cards to predominantly Hispanic neighborhoods.  Once a potential client called and showed interest, a capper would be dispatched to the client’s home to have him or her sign important documents, including a retainer agreement, without ever meeting with an attorney.  The documents would then be sent to the subscribing attorney, without any input from that attorney.  The attorneys involved in the scheme are accused of allowing cappers to order, prepare, and submit documents on their behalf without any oversight.  Medical providers are also under investigation for paying for patients recruited by cappers, as well as prescribing medication and medical equipment from companies chosen by the cappers.

The charges include multiple felony counts of conspiring to refer clients for compensation, referring patients/clients with reckless disregard for commission of fraud, and insurance fraud.  The sentencing enhancements involved include aggravated white collar crime over $500,000 and loss of over $1.3 million.  Ten attorneys and six cappers have been charged.  Mr. Arguello faces a maximum of 29 years and eight months in prison, while Mr. Gonzalez faces a possible 20 years and eight months in prison.

Workers’ compensation fraud is a serious problem, and the State is combating it every day.  If you have questions about workers’ compensation and your business, contact me today at (714) 516-8188 to discuss them.

“Serious and Willful”

When an employee makes a workers’ compensation claim, typically all or he she needs to prove is that he or she was injured and that injury was, in fact, sustained at work. Once the employee provides this proof, a claim is typically approved. The majority of disputes in workers’ compensation cases are not over whether an injury occurred, but rather the degree of the injury and the degree of the disability. Once that is settled, an employee will typically receive at least some degree of compensation. The employee’s burden of proof is quite low. He or she does not need to prove that the injury was the employer’s fault, but only that the injury happened and it was a work-related injury.

A claim for additional compensation under Labor Code 4553 is a different type of case. In those cases, an employee is making the claim that he or she is entitled to compensation over and above the regular workers’ compensation avenues because of the employer’s serious and willful misconduct. To prove this type of claim, an employee must prove that an employer knew of the danger but did nothing to correct it. The failure must be more than just negligent behavior. An employer must have essentially understood the fact that injury was likely to result from an employer’s failure to act but nevertheless failed to take remedial measures.

Serious and willful misconduct cases are serious for employers. Workers’ compensation does not cover these types of claims, and in fact the statute specifically provides these injuries are not insurable at all. The labor code provides that if an employer is found to have caused an employee’s work-related injury through its “serious and willful” misconduct, the employer must pay an amount equal to half the value of all benefits paid as a result of the injury. These benefits include all disability, both temporary and permanent, as well as medical and vocational rehabilitation benefits. A workers’ compensation judge has no discretion in adjusting the amount of the award, and the employer must pay the full amount of damages if the employee meets his or burden of proof. As these injuries are uninsurable, an employer must pay any recovery from the employer’s own funds.

 Serious and willful claims are very serious, and you need an experienced attorney to help you with these claims, both before and after they occur. Call me today at (714) 516-8188. We can talk about your business and these types of claims.

Regional Overview of California Workers’ Compensation Claims

Workers’ compensation is a system designed to make sure that employees who sustain work-related injuries are able to get the treatment they require. When handled properly, it can also help protect employers from liability. Different industries have different rates of workers’ compensation claims, as some types of jobs involve an inherently higher level of danger. Just as the frequency of claims varies from profession to profession, it also may vary by region.

A report released by the California Workers’ Compensation Institute determined that employees in California’s Central Valley have a different claims experience that those workers in other areas. The study determined that the time lag between when the employee notifies the employer of the work-related injury to the notification of the administrator to the initial treatment of the employee are significantly shorter than other regions in the state. The study went on to find that after twenty four months have elapsed after the initial injury, Central Coast claims average more medical visits for the purpose of rehabilitation, evaluation, management, or chiropractic care. The biggest difference, though, was in the surgery rate. Central coast workers’ compensation claims after 11.2 percent more medical payments for surgery than the rest of the state. However, the claims in the Central Coast seem to run significantly faster than in the other regions. The average claim lasts 325 days, which is two and a half months shorter than in other parts of the state. This is consistent with the fact that claims are addressed more quickly in this region over all. In 2015, the Central Coast accounted for 7.7 percent of all work-related injury claims in the state. Over the span of the last eleven years, the Central Coast accounted for an average of 6.7 percent of all workers’ compensation claims.

A large proportion of the claims reviewed in the study were agricultural claims. Almost eighteen percent of the claims involved in the study were agricultural claims. Despite this overall percentage, in the Central Coast, only 2 out of 10 job injury claims were related to agriculture.

 If you have questions about your business, workers’ compensation, and whether your business is taking the proper steps, contact me today at (714) 516-8188. I am highly experienced in guiding my clients through this area of law.

Secondary Injuries – Kesner v. Superior Court

An employer is typically liable for work-related injuries sustained by employees. For this reason, the state of California requires all employers to carry workers’ compensation insurance to cover their employees’ possible work-related injuries. In some cases, though, a third person may sustain injury indirectly from the employee’s job. This third party could be a family member or other person the employee comes into contact with regularly. Where does a employer’s liability end?  This issue was explored in a case called Kesner v. Superior Court.

In Kesner, the plaintiff was the nephew of the employee of the defendant, Abex. The plaintiff was diagnosed in February 2011 with perotineal mesothelioma. His claims against Abex were based on the fact that his uncle worked at the Abex company for many years. During those years, the plaintiff was a frequent visitor at his uncle’s home. His uncle would come home from his job at Abex covered in asbestos dust. The uncle would then play with the defendant, and sometimes sleep near him. The plaintiff alleged that the exposure to the asbestos dust lead to him eventually contracting mesothelioma.

Abex successfully moved to have the case against it dismissed, based on the fact that the plaintiff was not an employee, and Abex owed him no duty of care, which is an essential element of a negligence claim. However, the plaintiff appealed that dismissal and was successful. The court concluded that Abex’s duty of care did, indeed, extend to the plaintiff. The court ruled that Abex could have foreseen that the harm of the asbestos dust could have extended to the third-parties residing in an employee’s home. The court was careful to delineate the harm from a tangible injury such as mesothelioma from intangible harm such as mental anguish, which the court had previously ruled was not covered by third-party liability theories. The court also emphasized that the plaintiff in this case had extensive contact with his uncle. If the contact with the third-person was incidental or occasional, an employer would not be expected to foresee such an injury.

From this case, it is clear that an employer’s liability for work-related injury does not always end when an employee physically walks out of the work-place. Employers need to be cautious about foreseeable injuries to third-parties, such as family members, as they could ultimately be held responsible for such injuries.

If you have a question about secondary injuries, contact me today at (714) 516-8188. We can discuss your business, and review its responsibilities and possible foreseeable injuries.

Workers’ Compensation Insurance Profits at Record High

Is the workers’ compensation industry disappearing?  Is there a nationwide movement to eliminate workers’ compensation insurance?  These questions are both important, and directly related to the fact that a recent study shows that workers’ compensation insurance profits recently were reported at a record high.

A recent study by Conning, Inc. revealed that workers’ compensation insurance profits experienced the lowest loss ratio seen since 1995. In addition, over the last six years, premiums for workers’ compensation insurance have been steadily rising. The study determined that these premiums were boosted by the improving and expanding economy. However, the study also determined that this growth was not sustainable and not likely to continue. In 2016, the rate of filings indicated a softening market. This was attributed to the rise in medical costs. The fact that 2016 was a banner year for workers’ compensation insurance companies came on the heels of 2015, which had also seen record growth and profits. In 2015, the combined ratio for workers’ compensation was 95.4, which was a significant improvement over the ratios demonstrated in 2011-2014, which ranged from 117.3 to 102.4. For example, in 2015, Travelers Companies was the top workers’ compensation writer with a direct written premium of $4.47 billion dollars and net written premiums of $3,96 billion.

Other studies and opinions provide harsh criticism to the rising costs. The California Applicants’ Attorneys’ Association released a statement in April 2016 indicating that the rising rate of premiums has not gone to improve care provided to workers injured on the jobs. Rather, they are concerned that the increased profits to the insurance companies have actually just resulted in lining the pockets of the insurance executives.

Mounting pressure on the insurance companies will likely lead to a dip in insurance premiums. Simply stated, the high insurance premiums cannot continue to be justified in the face of the reduction in the amount of work-related injuries and increased safety standards. Moreover, certain organizations are concerned that even in light of the higher insurance premiums and record profits, care for injured workers has dipped. Some are even citing a reduction of 70% in benefits for employees, and medical professionals dropping employees from their care in the face of frustrating road blocks thrown up by the workers’ compensation insurance companies.

If you have questions about the ever-changing workers’ compensation insurance market and how it can impact your business, contact me today at 714-516-8188. I look forward to talking with you about your business and workers’ compensation.

Recent Workers’ Compensation Bills

This year has seen several significant workers’ compensation bills go across the Governor’s desk. The Governor vetoed several and approved others. Having a grasp on the current legislative activity can provide important insight into the law’s trend and potential future activity.

One bill he vetoed was Assembly Bill 1643. This bill proposed several additions to the current workers’ compensation system, including that breast cancer and prostate cancer receive equivalent impairment ratings and it would also have prohibited apportionment in certain women’s conditions such as pregnancy and osteoporosis. The Governor reasoned that breast and prostate cancer are different conditions with different medical repercussions and should not be treated the same way. He also reasoned that gender discrimination was already illegal, and the conditions concerning certain women’s conditions were unnecessary.

Another veto was for Senate Bill 897. This bill would have provided that if a firefighter or police officer was disabled by a qualifying catastrophic injury, the special leave benefits would be doubled from one to two years. The Governor reasoned that the financial stress this would place on already financially strapped departments would be too great, especially in light of the fact that there was only one example of an officer losing benefits while out on temporary disability.

The Governor did sign AB 1244, which is aimed at reducing workers’ compensation fraud. AB 1244 would require the administrative director to suspend any physician or provider from participating in the workers’ compensation system if that person had been convicted of a crime involving fraud or abuse of Medi-Cal program, Medicare, or workers’ compensation system. Such a provider or physician would also be suspended from participation if its license had ever been suspended for fraud or abuse.

The Governor also signed SB 1160. This bill provides that if criminal charges are filed against a physician or provider for an offense involving medical fraud, there would be an automatic stay against a lien filed by that physician or provider. The bill also prohibits assigning or factoring a lien after January 1, 2017, except in certain circumstances. These circumstances would include when the provider or physician is no longer in that line of business.

If you have questions about the current state of the law or how the new laws may impact your business, contact me today at 714-516-8188. I can review these laws with you and discuss how it may change your workers’ compensation plan.

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