Shift Work Disorder

The workers’ compensation system is designed to help protect both the employer and the employee.  The system helps make sure that the injured worker gets appropriate compensation for industrial injuries while also protecting the employer from excessive tort claims.  Injured employees may receive compensation for a wide variety of work related injuries, ranging from broken bones to PTSD to carpal tunnel syndrome.  Shift Work Disorder is one work related injury that may often be overlooked.

Shift Work Disorder is a sleep disorder that usually affects those people who work shifts that overlap with the time most people are sleeping.  In other words, those who often work second or third shift.  Symptoms of Shift Work Disorder include both insomnia and excessive sleepiness.  Unfortunately, regular, quality sleep is essential to continued good health.  Cardiovascular disease, diabetes, and obesity have all been linked to shift work disorder, as well as stomach problems and depression.  Clearly, these problems may also have a variety of other root causes.  Accordingly, any worker who claims to be suffering from any of these conditions as a result of Shift Work Disorder will have to prove that they are an industrial injury.  Proof will need to come from a treating physician, a qualified medical evaluator, or other medical professional.  The employee may have to undergo diagnostic tests, and the medical professionals will also need to review the employee’s medical records to determine whether the condition is a result of Shift Work Disorder.

There are examples in California law wherein cases involving Shift Work Disorder have been taken before the Workers’ Compensation Appeals Board, as these cases can be very fact sensitive.  In one case, the WCAB determined that the worker’s psychiatric injuries were, in fact, attributable to his rotating shift schedule.  Note that in that case, the worker had to provide substantial medical evidence to support his claim.  In another case, the worker collapsed at work and was admitted to the hospital.  Subsequent neurological testing indicated that the initial injury had resulted in permanent damage to his brain.  When the case went to trial, the main focus was not on whether the event had taken place or why, but rather whether the injured employee’s schedule actually qualified as “shift work.”

We have extensive experience helping our clients understand the rights and responsibilities of their business in the workers’ compensation system.  Contact us today to talk about your options.

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.

UEBTF Basics

The California workers’ compensation system is designed to protect both employees and the employers.  One way it accomplishes this is to require almost all employers to carry workers’ compensation insurance.  In the event that an employee makes a workers’ compensation claim, the insurance company will be the one to pay out the benefits to the employer and medical provider, not the employer.  This protects the employer’s bottom line while also making sure that the employee also receives the benefits that he or she is entitled to after sustaining a work-related injury.  Despite the fact that California law provides serious repercussions and penalties for employers who fail to carry workers’ compensation insurance, some employers still fail to carry it.  The Uninsured Employers Benefits Trust Fund (UEBTF) can then help provide the compensation required.

The UEBTF was set up in 1971 to make sure that even if an employer illegally fails to carry workers’ compensation insurance, he or she will still be properly cared for and receive the appropriate wage replacement or other benefits he or she may be entitled to under California law.  The UEBTF benefits the uninsured employer because it means that the employee still will not be able to directly sue the employer for his or her work-related injuries, as the injuries will still be compensated under the no-fault system established through workers’ compensation.  To receive compensation from the UEBTF, an injured employee must first go to the Workers’ Compensation Appeals Board to request a judgment for uncompensated injuries.  Once that occurs, he or she can then apply for benefits from the UEBTF.

After an employee receives compensation from the UEBTF, the process is not finished.  The UEBTF can and will seek to recover the benefits paid for the employee directly from the employer.  The UEBTF uses the funds recovered from illegally uninsured employers to help continue to fund the UEBTF.  Because the employer will not always have the cash on hand to reimburse the UEBTF for the benefits paid out, the UEBTF will typically seek to place liens on the assets and property held by the business.  Moreover, the UEBTF can seek to place liens on substantial shareholders of the business.

We have extensive experience helping our clients to understand the repercussions of failing to carry the required workers’ compensation insurance.  Call us today for a consultation

What Is the Workers’ Compensation Appeals Board?

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

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

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

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

Liens and Angelotti Chiropractic

When a worker sustains a work-related injury, he or she is entitled to seek medical treatment for the initial injury as well as an on-going basis. Workers’ compensation is meant to cover the costs of the treatment, including equipment, therapy, surgery, prescription medication, and a number of other costs. A provider who has supplied services, products, or medicines to an injured worker in a workers’ compensation case can file a lien against the workers’ compensation benefits of the worker. This allows the provider to make sure he or she gets paid. In 2012, a bill came into effect that required lien holders to pay an “activation fee.”  The purpose of this fee was an attempt to clear the large backlog of small liens that were bogging down the system, as well as discouraging providers from filing small claims by making the fee large enough as to render the lien worthless. A case called Angelotti Chiropractic v. Baker challenged the constitutionality of the activation fee. The case claimed that the activation fee was a violation of the Equal Protection clause of the United States Constitution because large institutional lien holders such as union trusts and health care plans were exempt from having to pay the activation fee. The plaintiffs alleged that this was unfair, and either all or no lien holders should have to pay the fee. The court ultimately agreed.

In November 2013, the court approved the request for a preliminary injunction, which prevented the DWC from collecting the activation fee for the liens from before 2013 as well as preventing enforcement of a provision of the new law that would have allowed for dismissal of liens by December 31, 2013 if the activation fee had not been paid.

The Ninth Circuit United States Court later determined that the activation fees were, in fact constitutional. The court dismissed the injunction put in place by the trial court. The court determined that any affected lien claimant who filed a declaration of readiness or attended a lien conference between November 9, 2015 and December 31, 2015 must pay the activation fee. It also determined that pursuant to labor code 4903.06(a)(5). After December 31, 2015, activation fees were no longer accepted by the DWC. Providers should note that the fee for filing liens was completely unaffected by this case.

If you have questions about how workers’ compensation claims are paid, you need an experienced attorney to discuss it with you. Contact us today at (714) 516-8188 for a consultation to discuss your business and how workers’ compensation will impact your business.

Larsen v. Securitas and Violence in the Work Place

The Occupational Safety and Health Administration reports that over two million workers are victims of workplace violence every year.  This often comes in the form of a worker being assaulted by another employee or a client or customer.  When this occurs, in some cases, a worker may seek to receive compensation for injuries through workers’ compensation.  The workers’ compensation system has certain exceptions and rules for work place violence.  One of these special provisions can be found in California Labor Code 4660.1.  This code provision provides that the impairment rating for a worker’s injury shall not be increased for sleep dysfunction, sexual dysfunction, or psychiatric disorder.  An exception to this rule is if the worker was a victim of a violent act.

In the May 2016 case of Deborah Larsen v. Securitas Security Services, the issue became what constitutes a violent act for purposes of the exception under 4660.1.  In that case, Deborah Larsen was acting as a security guard under the employ of Securitas.  She was performing her typical duty of walking patrol through a parking lot when she was hit by a car and sustained injuries.  She claimed that part of the injury included psychiatric disorder.  The employer did not contest that she sustained a work-related physical injury or that she was entitled to compensation as a result.  Instead, the employer argued that she was not entitled to compensation for the psychiatric injury.  Ms. Larsen argued that she was entitled to compensation under the violent act exception contained in 4660.1(c).  The WCAB noted that Ms. Larsen was “hit from behind with enough force to cause her to fall, hit her head, and lose consciousness.”  The Workers’ Compensation Appeals Board determined that this was sufficient to constitute a violent act.  The WCAB also determined that a violent act under 4660.1(c) is not required to be an act that is criminal or quasi-criminal in nature.  Instead, “it may include other acts that are characterized by either strong physical force, extreme or intense physical force, or are vehemently or passionately threatening.”

Another recent case also spoke to the issue of violent injury, and found that the violent act exception did not apply where the psychiatric injury was the result of the industrial accident and not as a result of the compensable physical injury.

If you are an employer and have questions about violence in the workplace in relation to workers’ compensation, call me today at (714) 516-8188. We can discuss your business, workplace violence, and workers’ compensation.

Southcoast Framing v. WCAB and Death Benefits

Workers’ compensation benefits come in a six different potential varieties.  Among these is death benefits.  If a worker is killed because of work-related accident, the worker’s surviving family may apply for and receive survivorship benefits.  The amount awarded will vary depending on the number of dependents that the deceased worker had, as well as when the death occurred.  The dependents may file for survivorship benefits up to 240 weeks after the death occurred.

In a case called Southcoast Framing v. Worker’s Compensation Appeals Board, the California Supreme Court addressed the issue of death benefits and what the surviving spouse and dependents are required to prove.  In that case, Brandon Clark sustained a work-related injury when he fell ten feet, suffering neck, back, and head injuries.  He was prescribed medication by the workers’ compensation physician as well as his own family doctor.  Mr. Clark then died as a result of accidental toxic overdose of a deadly combination of the medications.  Mr. Clark’s surviving widow and three dependent children applied for workers’ compensation survivor benefits.  The Qualified Medical Expert refused to assign a percentage of causation to the medication combination in relation to Mr. Clark’s death.  However, another physician testified that the combination of medication was toxic and lead to Mr. Clark’s death.   The trail judge determined that the combination of the medicines contributed to Mr. Clark’s death and accordingly approved the claim.  The appellate court reversed, holding that the medications were not “a substantial or material cause” of Mr. Clark’s death.

The California Supreme Court noted that the workers’ compensation system in California is a no-fault system designed to ensure that workers receive compensation while the employers are insulated from tort liability.  The Supreme Court ruled that the Court of Appeals inappropriately applied the tort standard of causation, which is incorrect and inappropriate in light of the no-fault system under workers’ compensation.  The Court also pointed out that it is the role of the legislature to extend or expand the burden of proof for death benefits cases, not that of the courts.  Because the legislature had decided that the application of proximate cause as the standard in workers’ compensation cases, the Supreme Court would not rule a different standard was appropriate.  Mr. Clark’s widow and children were permitted to recover survivorship benefits because the medication was used by Mr. Clark to treat his work-related injury and were the ultimate cause of his death.

If you have questions about survivorship benefits in workers’ compensation cases, contact me today at (714) 516-8188. We can discuss the state of the law and how that might impact your business.

Home Healthcare and Workers’ Compensation

For obvious reasons, workers’ compensation is intricately intertwined with the health care industry. This may include hospital stays, physical therapy, chiropractic services, psychological treatment, or an enormous variety of other services, depending on the nature of the work-related injury. With respect to home healthcare, employers need to be aware of two different potential issues that are related to workers’ compensation.

The first potential issue is if the employer’s own business is to provide home healthcare services. In California, it is required that all employers provide workers’ compensation insurance for all of their employees, with a few limited exceptions. The home healthcare industry is not one of those exceptions, in and of itself. In other words, chances are that your home healthcare business is required by California law to carry workers’ compensation insurance. Although home healthcare is not typically thought of as a “high risk” industry, there are many hazards inherent in the home healthcare business. Home healthcare providers are always inside of unfamiliar homes that may not be very clean or safe. Even if the home is completely free of typical hazards, simply being unfamiliar with surroundings can lead to more injuries. Accordingly, it is essential that home healthcare business owners not ignore the workers’ compensation insurance mandate.

The other potential issue could be whether an employer of a worker who has sustained work-related injuries is required to pay out a claim for home healthcare. This issue was addressed in a WCAB case called Hernandez v. Geneva Staffing, Inc. that was handed down in June 2014. In that case, a worker had a severely injured hand and received home healthcare services from his wife. He submitted a claim to his employer for payment for those home healthcare services. The employer denied the claim, based on the fact that the employee failed to provide a valid medical prescription for the home healthcare services. The WCAB explained that an employer may be liable to pay for home healthcare services where certain conditions are met, such as a valid medical prescription. The WCAB also explained that the amount that the employer may be liable for is limited by the Official Fee Schedule.

Employers of any industry have many responsibilities toward their employees when it comes to workers’ compensation. Call me today at (714) 516-8188 and let me review your business’s obligations with you.

Exclusivity Rule

Every employer takes all precautions possible to prevent any type of injury from occurring in the work place.  Unfortunately, sometimes even the most cautious and meticulous of employers cannot prevent all injuries to its workers. When this happens, the employee who has incurred a work-related injury may file for compensation under workers’ compensation provisions of California law.  In some rare cases, however, employees who have sustained work-related injuries may attempt to recover damages through other means, other than workers’ compensation.  The California Labor Code and associated case law has strict provisions about when such a course of action may be permissible.

California Labor Code section 3600 contains the statute that codifies what is colloquially known as the “Workers’ Compensation Exclusivity Rule.”  The exclusivity rule provides that the workers’ compensation system is the exclusive method by which the employee may recover for a work-related injury, as long as this injury is incurred during the course and scope of the employee’s employment.  The workers’ compensation system is a no-fault system.  This means that an injured employee does not have to prove that an employer is responsible for the injury, only that the injury occurred during work and in the scope of employment.  However, in a civil case brought in a traditional court room, an employee would be required to prove fault, or at least negligence.  The trade-off is that in the workers’ compensation system, the injured worker is limited in the amount and type of damages that he or she may request or be awarded.  However, in a tort suit (meaning the type of suit that is brought in a “traditional” court room), an injured worker could ask for a larger variety of damages, including medical expenses, lost wages, lost capacity, and loss of household services, in addition to the damages that could be alleged by the spouse of the injured employee.

However, the exclusivity rule prevents an injured worker from seeking to bring a civil suit against an employer at the same time that he or she brings a workers’ compensation suit.  In other words, injured employers are prevented from bringing a workers’ compensation suit in addition to a civil suit.  There are exceptions to the exclusivity rule, though.  These exceptions include such issues as employer assault, fraud, and an uninsured employer.  If an exception applies, though, there are still rules that apply to prevent an employee from receiving a double recovery.

If you have questions about the exclusivity rule or other issues relating to how an employee may recover against his or her employer, contact us today at (714) 252-7078.

Proposition 64 and Safety-Sensitive Fields

In November 2016, Californians voted to pass the ballot measure of Proposition 64.  This law legalized the recreational use of marijuana in private homes and businesses for residents who are 21 years of age or older.  Legalization for purposes of recreational use at the state level does not give employees carte blanche to get high and come to work, however.

Proposition 64 will be added to the California Health and Safety Code as Section 11362.45.  The law includes a provision that states that nothing in the law should be interpreted in such a way as to preempt the ability and right of an employer to maintain a drug and alcohol work place.  The law also states that an employer cannot be forced to accommodate the use of marijuana in the work place.  Finally, it also states that employers are free to continue to have policies that prohibit the use of marijuana by employees or prospective employees.  Also of note is that the law does not differentiate between medical use and recreational use of marijuana.  Employers are free to continue to prohibit marijuana use even if that use is medicinal.  Federal and state law requires that employers make reasonable accommodation for a disability, but the new law does not require that employers make accommodation for drug use.

This is all a logical set of restrictions when it comes to safety-sensitive professions.  Construction workers and truck drivers face high incidences of work-related injuries, and are in fact some of the most safety-sensitive fields in California.  The law provides that employers may continue to craft policies and hiring and firing practices that will ensure their employees are sober and drug-free.  California labor code § 3600(a)(4) precludes employer liability for a claim of workers’ compensation where the injury was at least proximately caused by intoxication or the unlawful use of a controlled substance.  Now that marijuana is legal for adults to consume even without a prescription, employers must rely on the fact an employee was intoxicated at the time of the injury, as opposed to use of marijuana. Of note is that OSHA has new rules that prohibit blanket post-accident drug tests, so a post-accident drug testing policy needs to accommodate this regulation.

If you have questions about your employees’ use of marijuana and how it may impact your workers’ compensation system, contact me today at (714) 252-7078.  We can discuss your business and make sure you are in compliance with the current law.

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