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.

Functional Capacity Evaluations

After a worker sustains a work related injury in the course and scope of their employment duties, the worker will need to obtain medical treatment.  This treatment varies depending on the type of injury, and can range from physical therapy to surgery to acupuncture.  The workers’ compensation process will also require that the employee submit to extra testing to provide information to determine issues such as whether the worker is permanently or temporarily disabled and the extent of the disability.  One examination the worker may have to submit to is called the Functional Capacity Evaluation.

The Functional Capacity Evaluation (FCE) is an examination performed by a physician, physical therapist, or other medical professional to measure the level of the injured worker’s functioning.  The purpose of the test is to evaluate and document the injured worker’s ability to perform, or not perform, the essential job related tasks.  The physician will then review the information and evaluate several different areas.  These areas include the demands of the job, when the employee should return to work, whether the employee can realistically return to the same job he or she held before sustaining injury, the employee’s abilities demonstrated when not on the job, the potential required rehabilitation or medical intervention.  Employees may be asked to submit to either a Job Specific FCE, which will determine the employee’s ability to perform the specific tasks for the job they were in at the time they were injured, or a general purpose FCE, which is typically used when the job the employee was in at the time of injury either no longer exists or has been filled during the employee’s absence.  After the FCE is completed, the physician or medical professional will prepare a particular report reflecting their findings.

The FCE will serve as a touchstone for insurance adjusters, attorneys, and employers to all determine whether an employee is ready to return to work and in what capacity.  The FCE can often serve as a reference when determining the employee’s disability rating.  It is possible that in the future, another treating physician will not be able to assign a higher disability rating than what is found in the FCE.  The employer also needs to have a comprehensive understanding of the contents of the FCE.  The FCE will tell the employer what types of accommodations may be necessary for the employee to return to work.  Employers are obligated to provide reasonable accommodations to employees when they return to work during a workers’ compensation case.

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

Acupuncture, Chiropractors, and Workers’ Compensation

After an employee sustains a work-related injury, there are many steps that will need to be taken, ranging from paper work to reporting the injury to insurance company to reporting certain injuries to state and federal entities.  One of the most important steps is making sure that an employee receives proper medical treatment.  Although some medical treatment may involve addressing acute and emergent injuries, such as a broken arm, other treatment plans may include more long-term types of treatment, such as physical therapy.  Some workers may elect to pursue alternative treatments.  Two of these treatments are acupuncture or going to a chiropractor.

Acupuncture is a form of alternative medicine with roots in China.  With acupuncture, tiny needs are inserted into the patient’s skin at very particular, key points.  Practitioners of acupuncture believe that proper practice can alleviate stress or pain.  Under the California Labor Code 4600, acupuncture is recognized as a valid treatment for work-related injuries. The labor code provides that an authorized practitioner of acupuncture may apply to become certified as a health care organization to provide treatment to injured employees.

Chiropractic care is based on manipulating and realigning joints, especially those in the spine.  Practitioners believe that proper chiropractic care can help address disorders affecting nerves and muscles.  As with acupuncture, California Labor Code 4600 provides that chiropractic care is a valid treatment course for workers’ compensation.  Unfortunately, many employers have reported negative experiences with some chiropractors.  In the past, some unscrupulous chiropractors would continue to make sure the injured worker came back for as many treatments as possible to maximize the money he or she could make from the patient.  In response, California law now provides that chiropractic visits shall be capped at twenty four for each industrial injury, unless the employer authorizes additional visits.  This law was passed in response to the fact that past studies revealed that workers’ compensation cases involving chiropractic care often paid out more than thirty percent more than other cases, and tended to last longer.  The law is intended to address the fact that many chiropractors often recommend chiropractic care as a life long course of care, and some were attempting to draw out treatment far after was actually needed for the work related injury.

If you have questions about what type of care is appropriate or available for your injured worker, call us today.  We have extensive experience helping business owners understand their rights and responsibilities under California law.

Causation, Lung Disease, and Workers’ Compensation

Workers’ compensation is designed to cover a wide variety of work related injuries that your employees may sustain during the course and in the scope of their employment.  Most people tend to think of physical injuries, such as a broken arm or even an amputated foot, but workers’ compensation covers many other injuries, including those from repetitive stress, psychological injuries, or illnesses that may be caused by work place conditions.  One type of illness commonly seen in the workers’ compensation system is lung disease.

Lung disease may happen as a work related injury where a worker has been exposed to certain contaminants that cause lung disease while at work.  There are many different roles that may expose a worker to dangerous fumes, dust, or gases.  For an injured employee to be eligible to receive workers’ compensation benefits as a result of lung disease, he or she will need to prove industrial causation.  Proving industrial causation will require proof of three things: 1) that the contaminants alleged to have caused the lung disease are actually present in the work place; 2) the worker was exposed to the contaminant in the work place; and 3) there must actually be a disease that the contaminants can cause, accelerate, or aggravate.

A worker can prove which contaminants are in the work place in one of two main ways.  The first is eyewitness testimony.  Other workers or even clients or customers can testify that particular materials or conditions were observed in the workplace.  The other way is through the Material Data Safety Sheet.  Federal law requires that employers ensure that these safety sheets are “readily accessible to employees for all hazardous chemicals in their workplace.”

Whether the worker was actually exposed to the chemical is a factual issue.  The employee or other workers can testify that the employee was exposed to the contaminant.  For example, testimony can be introduced which states the employee was observed inhaling fumes from dangerous chemicals.  In other cases, particular tests can help prove exposure.  These tests would be commonly used where the employee has been injured by, for example, mold or asbestos.

Finally, a physician will have to examine the employee.  The medical professional will need to determine that the lung disease was actually caused by exposure to the contaminant.

If you have questions about what industrial injuries are covered by the workers’ compensation system, let us answer them.  Contact us today for an appointment to talk about your business.

Structured Settlements and Workers’ Compensation

The legal system is often thought of by lay people as being complicated, and legal cases may take months or even years to resolve a case.  Unfortunately, workers’ compensation is not always an exception to this, as the nature of the cases often include injuries that take time to heal before it can be determined whether a worker is permanently or temporarily disabled, the type of accommodation the worker requires, or whether the worker can even return to work at all.  Both sides are often looking for ways to shorten the process and come to a settlement.  With a settlement, the parties can avoid the time and expense of a court case that drags out and costs both sides dearly.  One way to complete this in a workers’ compensation case is a structured settlement.

A structured settlement is a settlement agreement wherein the employer or its insurance provider agrees to make a series of periodic payments to the injured worker (or the surviving family) over a period of time.  Some structured settlements provide that each payment amount will be exactly the same, but other settlements can provide additional flexibility.  In some cases, the settlement may provide for a lump sum to be paid up front before the regular payments start.  This lump sum may be to assist with housing, transportation, or medical needs.  In addition, the settlement can take future cost of living expenses increase or inflation rates into account, and provide for future increases at specific times.  It should be noted that a separate account is often set up to handle the injured workers’ future medical expenses, and that the periodic payments are meant to represent the lost wages.

One advantage for the employee in accepting a structured settlement is that the periodic payments are not subject to federal income taxes.  An employer will often benefit from a structured settlement in cases where there has been a catastrophic injury that is likely to result in a finding of permanent partial or total disability, especially where the injury is so severe that the worker is unlikely to be able to return to meaningful employment.

We have extensive experience helping our clients understand what types of settleemnts may be best for their business.  Call us today to talk about what we can do to help you.

Communications Between an Injured Worker and Their Physician

The confidentiality between a patient and doctor is well established in the United States, and California is no exception.  Confidentiality is strict to make sure that the patients can fully disclose all symptoms and potential sources of illness or injury without fear that embarrassing conditions will be on display for others to read.  Although employees can typically be secure in the knowledge that their medical conditions are private and protected from their employers, this can change in the case of a workers’ compensation case.

During a workers’ compensation case, the injured employee will need to seek medical attention.  Even after urgent conditions have been addressed, the worker may require ongoing treatment or physical therapy.  The worker will definitely need to be evaluated by a physician or medical professional to determine whether he or she is temporarily or permanently disabled, the degree of the disability, and whether he or she requires limitations or work restrictions upon returning to work.  Clearly, these will be medical conditions that are assessed by a medical professional.  Employers and employees alike should have an understanding of what types of communications remain privileged between the injured employee and his or her treating physician.

The Confidentiality of Medical Information Act contains strict rules and prohibitions on when a health care provider can release information.  There are exceptions, however in the workers’ compensation system.  Communications between the patient and the physician concerning the work related injury will be turned into reports that will be submitted by the physician to insurance adjusters, attorneys, and even the employer.  The employer, attorneys, or an insurance adjuster may also request copies of the actual medical records.  When the treating physician has been the worker’s treating physician for other conditions in addition to the work related injury, however, these medical records will contain information that is completely irrelevant to the work related injury.  In that situation, the physician is restricted from releasing more information than is necessary.  In other words, an employer or insurance adjuster is not entitled to receive a complete copy of the employee’s entire medical record.  The physician is required only to release the information relevant to the injury and whether the employee is able to return to work.

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

Returning to Work and Accommodations

All employers work hard to make sure that their employees are as safe as possible at work.  Employers invest in the latest safety technology, form safety committees, and provide training all in an effort to reduce the chances an employee will sustain a work related injury.  Unfortunately, this cannot always be avoided.  If your employee is injured and files a claim for workers’ compensation, it is possible that he or she will have to take some time off work to recuperate.  When the employee returns to work, the employer needs to be aware of the responsibilities they have to the employee to potentially provide accommodations to the employee.

Employers in California have an “affirmative duty” to make “reasonable accommodations” for a known disability.  The employer’s duty to provide an accommodation is triggered when the employer has reliable reason to believe the employee has a disability.  The employer does not have to witness the disability personally and the employee has no obligation to specifically request an accommodation before the employer needs to take action.  The employer needs to accommodate the employer’s disability and work restrictions, but the employer is not required to take measures that would constitute an undue hardship.  The employer is also not required to make sure that the accommodations make it possible for the employee to immediately return to the same job or even a job with the same income.  The employer is not required to make a new job position just for the injured employee, but the employer does have to investigate all the available job openings that the employer could qualify for.  For example, if an employee sustains a back injury that makes it impossible for him to perform his usual duties as a jail warden, the employer is at liberty to offer the employee a desk job at a different facility that would accommodate the restrictions on the warden’s physical activity.  The employer has an obligation to engage in an interactive process with the injured employee to ascertain what sort of accommodation may be required.  The employer should look for alternate positions and continue the dialogue with the employee until he or she terminates the process.  The employer should document these exchanges to make sure that there is evidence of the efforts made to accommodate the employee in case the employee brings a suit against the employer for discrimination or retaliation.

Employers should be aware that they cannot treat non-industrial disability restrictions any differently than a disability or restriction a worker may have as a result of a work-related injury.  Employers must be consistent in how they handle all disability issues.

Workers’ compensation is a long process with a lot of requirements for all parties.  Contact us today for a consultation to talk about your business.

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.

PTSD and Workers’ Compensation

The way our society is acknowledging and addressing mental health issues has drastically changed over the past few decades.  Disorders that were previously downplayed or even outright rejected are now receiving the attending they require, helping many people address their problems and get better.  In some situations, the mental health issues may actually stem from the employee’s job.  Some jobs are high intensity and dangerous, exposing the employees to risk and trauma on a daily basis.  The unfortunately result is that many employees will then develop Post Traumatic Stress Disorder.  Although most people associate PTSD with military service, thousands of civilians suffer from PTSD that they developed through their employment.

In California, PTSD can be covered by workers’ compensation.  The claim can be a standalone claim for only PTSD, or it could be in conjunction with another work related physical or mental injury.  In addition to military members, those who are typically at high risk of developing PTSD as a work related injury would be those who are exposed to dangerous or tragic work environments, such as firefighters, police officers, social workers, or EMTs.  They can develop PTSD after a singular incident, or as the result of repeated exposure to stressful and traumatic situations.

Like any other workplace injury, a claim for workers’ compensation based on PTSD will start when the employee files a claim with the employer. There are strict deadlines as to when an employee can file for benefits after becoming aware of the injury.  In this case, the timeline would likely start from when the employee receives a diagnosis of PTSD from a medical professional or counselor.

California Labor Code 3208.3 provides that if an employee’s injury is a result of being “a victim of a violent act or from direct exposure to a significant violent act, the employee shall be required to demonstrate by a preponderance of the evidence that actual events of employment were a substantial cause (35-40 percent) of the injury.”  It is important to note that a medical diagnosis will be required to satisfy the section of the labor code.  The definition of key terms such as “victim,” “direct exposure,” and “significant violent act” is the subject of extensive litigation, and can be a nuanced argument for an attorney to make.

If you have questions about the workers’ compensation system, let us answer them. Contact us for a consultation to talk about your business.

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