The Role of the Qualified Medical Examiner

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

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

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

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

Intentional Conduct and Workers’ Compensation

Workers’ compensation is an important part of the California legal process.  It provides a method for workers who are injured during the course and scope of their employment to receive payment for medical costs and replacement wages.  One of the features of the workers’ compensation system that provides protection to both employees and employers is the fact that the California workers’ compensation is “no fault.”  This means that neither the employer nor the employee has to prove that the other is at fault for the injury before the employee is eligible to receive workers’ compensation benefits.  An important exception to this, however, is where the injury is received after intentional conduct from the employee.

One of the most common examples to this is when an employee has intentionally injured him or herself on the job in an effort to get workers’ compensation benefits.  This can be classified as fraud and is one of the reasons it is important to properly document and investigate every workplace injury.  For example, if your employee was injured in a purported slip and fall incident, but you have video evidence that he or she intentionally fell to the ground, it is possible that this will render him or her ineligible to receive workers’ compensation benefits.

Another way that intentional conduct can render your employee ineligible to receive workers’ compensation benefits is if your employee was involved in a fight.  If your employee engaged in an illegal act, such as assault, this will render him or her ineligible to receive workers’ compensation benefits for any injuries sustained during the fight.  It is important to note, however, that if the employee was not the aggressor, he or she may still be able to collect workers’ compensation benefits.

Workers’ compensation benefits also come into play if an employee is injured in a car accident during the course and scope of his or her employment.  During the discussion with the car insurance company, the issue of fault will be relevant.  However, in the context of workers’ compensation, the fault of the employee is irrelevant.  If, however, you could prove that the employee intentionally wrecked the company vehicle, that would mean that he or she will not be eligible for workers’ compensation.

We have experience with helping clients understand their rights and responsibilities with regard to intentional conduct and workers’ compensation.  Call us today for a consultation.

Helping Your Employees with Occupational Illnesses

Employers take many measures to make sure their workplace is as safe as possible.  Keeping the workplace free from hazards is an essential step to keeping your customers and employees safe.  When making your business safe, you likely think about dangers such as a slippery floor or heavy machinery with outdated safety updates.  Unfortunately, many employers overlook the very real danger posed by occupational illnesses.  These include conditions such as carpal tunnel syndrome, ulcers, or back injuries.  Conscientious employers should take measures to help their employees avoid occupational illnesses.  As an employer, there are measures you can and should take to help your employees avoid and deal with their occupational illnesses.

One of the best ways to identify and avoid occupational illnesses for your employees is to create an injury and illness prevention program.  The focus of an injury and illness program is to identify potential sources of injuries, and then making a plan to help manage and control those dangers.  For example, if your business requires employees to perform repetitive motions, such as lifting boxes and turning to put them away, an illness and injury program can help provide training to employees on how to properly lift boxes to avoid injuries as well as making sure employees take breaks at regular intervals.

Another way to help your employees is to provide information and awareness information about occupational illnesses.  While employees are likely aware of the dangers of carpal tunnel or even repetitive motion injuries, they may be less familiar with how to prevent other injuries, such as developing asthma or even certain psychological injuries.

Encouraging your employees to stay healthy and take appropriate breaks from work can also help to reduce the incidences of occupational illnesses.  Keeping your employees healthy and fit can help keep them strong, making it less likely they will develop those injuries.  Breaks are also extremely important.  For example, taking regular breaks from typing can reduce the chances of an employee developing carpal tunnel or exacerbating prior nerve damage.  Although some employers may feel frustrated at frequent breaks, making sure the employee never develops the injury in the first place will save time in the long run, as the employee will not need to miss work for treatment of the injury.

If you have questions about what measures you should take as an employer, contact us today.  We can talk to you about your rights and responsibilities

State Action on Workers’ Compensation Fraud

The workers’ compensation system is an important safety net to help provide employees with a way to get their medical costs covered as well as a degree of replacement wages while they are recovering.  The system also protects employers by preventing an employee from suing them in court for the injury in addition to the workers’ compensation process, with very few exceptions.  Although the overwhelming number of workers’ compensation claims are valid, workers’ compensation fraud is a serious problem, costing the California taxpayers millions of dollars a year.  To that end, there have been significant actions by the state to help combat fraud.

One way that the state of California combats workers’ compensation fraud is by creating specialized workers’ compensation fraud units in district attorneys’ offices across the state.  These units are full of attorneys with specialized knowledge about some of the most common types of workers’ compensation fraud, including claim mills, malingering, premium fraud, and provider fraud.  These attorneys are familiar with the types of evidence required to move forward with a case and are skilled in getting convictions.  These convictions help cut down on the amount of fraud being perpetrated, saving untold tax dollars.

Another way the state of California combats workers’ compensation fraud is the Workers’ Compensation Fraud Program, which was established by the legislature in 1991.  The program made it a requirement for employers to report suspected fraud, made workers’ compensation fraud a felony, and provided a way to fund enforcement and prosecution activities.  The legislation also established the Fraud Assessment Commission.  The role of the Fraud Assessment Commission allocates funding to fraud prosecutors.

The state also takes action against workers’ compensation fraud by passing new legislation to combat fraud.  One example is Assembly Bill 2046, which was introduced in 2018.  The bill modifies the way that the legislation and commission are permitted to spend funds on fraud prosecutions.  The bill also allows certain government agencies which have workers’ compensation insurance fraud information to release that information to certain designated and authorized government agencies.  Several bills were also introduced in 2018 dealing with the requirement to carry workers’ compensation insurance, including requirements for particular contractors to carry a certificate of workers’ compensation insurance or certificates of self-insurance.

If you have questions about workers’ compensation fraud and how to make sure your company complies with the law, call us today.  We can talk with you about workers’ compensation and your business.

Home Healthcare and Workers’ Compensation

All conscientious employers work hard to make sure that their employees are safe and do not sustain an injury while on the job.  Unfortunately, despite the most diligent efforts, it is still possible that employees may sustain an injury during the course and scope of their employment.  When this occurs, the employee will be entitled to workers’ compensation, which covers their medical costs, as well as a percentage of salary replacement.  The medical costs that are covered by workers’ compensation cover a wide variety of treatments, ranging from surgery to acupuncture to psychiatric treatment.  One issue that may come up during your employee’s workers’ compensation case is home health care.

Workers’ compensation covers the treatment and cure costs for injuries sustained through the course and scope of employment.  Once a medical professional has diagnosed your employee with a particular injury, the medical professional will then provide a treatment plan for your employee.  The treatment plan may include home health care.  A determination that an employee requires home health care will require an assessment of several issues and the employee’s needs for three types of services.  These services include skilled nursing and therapy services, assistance with personal tasks, and assistance with activities that allow a person to remain at home.  Personal tasks include tasks such as grooming, dressing, and eating.  Activities that allow a person to remain at home include shopping, cooking, and housework.  It is important to note that these services are not inherently medical services, meaning that no medical training is required to complete these tasks.  Nevertheless, they qualify under home health care services for purposes of workers’ compensation.

In 2015, the California Senate passed a bill requiring the California Workers’ Compensation to establish a fee schedule for workers’ compensation schedule.  Before that bill, the Official Medical Fee Schedule established the fee schedule for home health care services under workers’ compensation.  The bill also provides that the treating physician of the injured employee needs to prescribe home health care services, and also request authorization.  The process of utilization of review will allow the insurance provider or other payer to determine whether home health care services are necessary and appropriate.

We have extensive experience helping our clients understand what benefits their employees may receive through workers’ compensation.  Call us today to talk about your case and your business.

Reducing Workers’ Compensation Costs

All business owners know that maintaining a business can be costly.  Advertising, inventory, rent, and taxes, just to name a few.  In California, almost all businesses are also required to carry workers’ compensation insurance.  Workers’ compensation insurance can be costly.  All businesses, ranging from large corporations to small businesses, are all trying to reduce costs in order to maximize profitability.  Although California law likely requires you to carry workers’ compensation insurance for your business, there are techniques you can employ to help reduce your workers’ compensation costs.

One way to help you reduce your workers’ compensation insurance costs is to make sure you understand how your workers’ compensation insurance premium is determined.  Workers’ compensation insurance premiums are based on a specific classification system.  The more dangerous the roles of your employees, the higher your workers’ compensation rates will be.  Accordingly, you need to have an open line of communication with your insurance adjuster to ensure that he or she is assigning the correct classification to your workers.

Another way to reduce your workers’ compensation insurance costs is to make sure that your workplace is as safe as possible.  Ensure that you keep your equipment up to date and in good repair.  Creating a safety committee in the workplace can also help, as your employees can take a direct role in keeping your workplace as safe as possible.  As your employees are the ones who directly deal with all workplace conditions, they often have some important suggestions as to how to make your workplace even safer.  The fewer injuries you have in your workplace, the lower your workers’ compensation premiums will be.

Third, you should build a return to work program.  An important rule of thumb to keep in mind is that the longer a workers’ compensation claim remains open, the more expensive the claim will be.  This is because the claim will require that more replacement income benefits must be paid.  Accordingly, if you can build a program that proactively helps workers get back to work, income benefits will not have to be paid for as long a time.  A return to work program often includes allowing an employee to return on a light-duty or even part-time basis.  You will need to coordinate these plans directly with the employee’s health care provider to make sure the work is appropriate for the particular injury.

We have extensive experience helping our clients understand their rights and responsibilities with regard to workers’ compensation responsibilities.  Call us today for a consultation.

Why Can’t I Fire My Worker for Filing for Workers’ Compensation?

If you are an employer, you are likely well-aware that the laws surrounding workers’ compensation in California can be complicated and seem overwhelming.  Employers sometimes struggle with issues such as proper classification of employees versus independent contractors, determining whether an injury was work-related or in the course and scope of employment, and what types of paperwork need to be filed when.  As a business owner, you are likely to understand that an employee is entitled to workers’ compensation benefits after sustaining a work-related injury.  You also need to be aware that firing your employee because the employee exercises his or her right to file for workers’ compensation is strictly forbidden under California law.

California law provides that employers may not retaliate against an employee because or she is eligible to file a workers’ compensation claim.  Under California Labor Code 132a, an employer cannot take adverse action against an employee who has filed or stated an intention to file for workers’ compensation.  The types of retaliatory action that are not allowed under labor code 132a include: purposefully demoting the employee, firing an employee before he or she has the chance to file a claim, or giving unwarranted negative employee reviews.  Essentially any negative action the employer takes because of the existence of a current or potential future workers’ compensation case.  Witnesses to the workplace injury are also protected from retaliatory action under the law.

Employers should know, however, that an employee is not immune from adverse workplace action just because of a workers’ compensation claim.  An employee can still be fired or disciplined for other reasons, as long as the reason for the adverse action is not retaliatory under labor code 132a.  For example, an employer can still terminate an employee’s employment for failure to meet important industry standards or fulfilling their regular job requirements.  Employers should still be cautious, however, because  an employee can bring a suit under 132a for free. Even if they are not ultimately successful, defending the suit will still absorb resources and time.  Before terminating or taking adverse action against an employee who is eligible for workers’ compensation, an employer should talk to an experienced workers’ compensation attorney to make sure the business is properly protected.  Even then, defense of an unsupported filing may still be necessary.

If you are a business owner and have questions about retaliation, call us today.  We can help you understand the workers’ compensation system and how your business fits within it.

What Does Workers’ Compensation Not Cover?

Workers’ compensation is crucial to help make sure that employees receive medical treatment after sustaining a work-related injury.  Workers’ compensation allows an employee to recover medical costs related to the treatment of the injury. It also provides temporary or permanent disability payments to help take the place of lost wages.  Workers’ compensation will cover a wide variety of injuries, ranging from post-traumatic stress disorder, carpal tunnel syndrome, or a broken arm, just to name a few.  While workers’ compensation certainly covers a lot of different injuries, there are definitely some things that workers’ compensation will not cover.

One thing that workers’ compensation will not cover is injuries sustained during a car accident that happened during the employee’s normal commute.  Getting to and from work is not generally included, but there can be some exceptions.  For example, if the employee is driving between two different work sites, or is commuting to a distant work site that is not the employee’s typical workplace, then injuries sustained during that drive could sometimes fall under workers’ compensation.

Another class of injuries that would not be included in workers’ compensation benefits would be injuries that were intentionally inflicted by the employee himself.  An employee cannot recover for injuries if he or she purposefully sustains that injury.  This makes sense, as it is clearly unfair to allow an employee to receive financial benefit for purposefully throwing himself off of scaffolding or slicing her arm with a kitchen knife.

Third, injuries that were sustained during horseplay or fighting are likely not covered.  Even if  the employees are “on the clock” when they were horsing around, if either sustains an injury while this was going on, they likely will not be covered by workers’ compensation.  As with most other issues, there are exceptions to this.  If the employer regularly permitted or even encouraged horseplay, it is conceivable that the injuries would be covered.  Similarly, fighting in the workplace may end up not being covered.  That said, while a personal altercation between two employees may fall outside of coverage if one employee is attacked by another after a poor job performance review, the injuries to the employee who did not instigate the fight may be covered.

If you have questions about what types of injuries are covered by workers’ compensation, call us today.  We can talk with you about workers’ compensation and your business.

What Is In the “Course and Scope of Employment?

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

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

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

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

Documenting Injuries

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

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

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

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

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