Medical Fraud and Workers’ Compensation

Workers’ compensation exists to make sure that employees receive the appropriate compensation and medical care in the event they sustain a work related injury.  In the vast majority of cases, workers’ compensation claims are valid and the injured employee really does require medical care.  In some unfortunate cases, however, there may be medical fraud in workers’ compensation cases.

Medical fraud in workers’ compensation cases comes in many different forms.  One common form is when a worker either exaggerates or completely fabricates an injury.  An employee may state that he or she still needs medical care and accommodations at work even though he or she is actually no longer injured.  This is commonly known as “malingering.”  If an employee fabricates or exaggerates an injury to continue to receive benefits, the employee can be charged with insurance fraud, ordered to pay back the fraudulently received funds and even serve time in jail.  Common injuries that are seen with this type of fraud are soft tissue injuries, as there are no medical tests to determine whether the injury has sufficiently healed and the employee is the only one who can say whether there is still pain or limitations because of the injury.

There are also much more complicated types of medical fraud.  These are typically white collar crimes that may involve multiple layers of fraud and multiple offenders.  These types of schemes may include doctors and attorneys who encourage others to exaggerate their injuries.  Doctors may over treat the patient to continue receiving payment for services and may over prescribe drugs, including harmful and addictive substances like powerful opioids.  Doctors receive payments for unnecessary treatment and the cost of insurance companies, and that cost is ultimately passed on to tax payers and others who must purchase workers’ compensation insurance.

In recent years, the state of California has made significant efforts to identify and prosecute workers’ compensation fraud, including medical fraud.  During the 2015-16 fiscal year alone, 167 cases were referred to prosecutors by the fraud division, totaling a potential loss of almost two hundred million dollars.  In addition, during that same time period, district attorneys reported 731 arrests.  Restitution of over fifteen million dollars was ordered in connection with the successful convictions.

If you have questions about workers’ compensation fraud, contact us today.  We can talk with you about fraud concerns and how you can comply with the law.

Repetitive Motion Injuries – What Is My Business Liable For?

There are a wide variety of injuries that can occur in a work place.  An employee can fall off scaffolding, get in a car accident while driving to deliver a shipment, or receive an injury from malfunctioning equipment.  Repetitive motion injuries are also a common source of work related injuries.  The most common type of repetitive stress injury is carpal tunnel syndrome.  Carpal tunnel syndrome occurs when the nerves running from the hand to the wrist are compressed through repeated motions, like typing.  There are other types of repetitive stress injuries, which could come from repeated bending or repeated use of one body part, such as repeatedly lifting your arms over your head.  Like other work related injuries, an employer can still be liable for repetitive motion injuries.

If your employee has a repetitive motion injury or shows signs of developing the injury, you need to treat the repetitive stress injury just as you would any other injury.  The employee needs to seek medical attention.  You will need to complete the same paperwork and submit it to your workers’ compensation insurance provider.  The employee will be eligible to receive replacement income, payment of medical expenses, and if necessary, reasonable accommodations when the worker is able to come back to work.

One issue that frequently arises with these types of injuries is that the worker was likely typing a lot or during similar repetitive actions in previous employment.  Employers will often wonder whether they are obligated to cover the repetitive stress injury if the condition started to develop during prior work.  Whether the injury is covered by the workers’ compensation system will be dependent on whether the injury is a pre-existing condition.  For example, if the injury was diagnosed and treated before the worker started with your business, it may very well be excluded from coverage under workers’ compensation.  However, if the pre-existing condition is one that he or she previously received workers’ compensation benefits for and the condition is aggravated by the work with your business, then the employee may very well be eligible for additional workers’ compensation benefits.  The employee will need to get a medical examination to determine whether it is part of a pre-existing condition or a new injury.

We have extensive experience helping our clients understand the workers’ compensation system.  Call us today to talk about what we can do to help you

Beware of Incorrect Worker Classification

Employers know that there are many administrative responsibilities they must give special attention to.  This includes such issues as paying taxes, making sure you comply with any local ordinances, and keeping your inventory up to date, just to name a few.  Employers are also free to determine how they want to accomplish their work.  Employers can hire employees to work directly for their business.  Alternatively, they can retain the services of an independent contractor.  It is essential that employers properly classify their workers.

Under the California workers’ compensations system, an employer is required to provide workers’ compensation insurance for all employees.  The failure to provide the required insurance can result in hefty civil penalties and in some cases, even criminal charges.  However, an employer is not required to provide workers’ compensation insurance for independent contractors.  To that end, many employers end up classifying all of their workers as independent contractors to try to get out of providing insurance and benefits.  Like the failure to provide insurance coverage at all, the misclassification of workers as independent contractors can carry heavy repercussions.  If it is discovered that a worker is misclassified, California law provides that an employer may have to go back and pay unpaid payroll taxes that were avoided because of the misclassification. California law also provides for civil penalties starting at $5,000 for each misclassification and go up from there.  Moreover, the misclassified worker can seek up to three years of back wages, including unpaid overtime.

It is clear that employers need to be diligent in their proper classification.  However, there is not exactly a set definition of “independent contractor” versus “employee,” although employee is defined in labor code section 3351. That said, there are several issues the court will examine when trying to decide whether a worker is an independent contractor.  One of the most important issues is what type of control the worker has on how his or her work is completed.  For example, if the employer sets specific times when the worker must do the work as well as a particular place, that indicates the worker is actually an employee.  Another indication is if the employer provides the tools and equipment necessary to complete the work, the worker may actually be an employee and not an independent contractor.

We have experience assisting our clients understand worker classification.  Contact us today to talk about your business and what we can do to help make sure you are in full compliance with the law

Occupational Diseases

Workers’ compensation is designed to provide financial support and relief to employees who sustain work related injuries.  When most people think of workers’ compensation, they think of broken arms, concussions, slip and fall injuries, or other physical injuries that happen from some type of accident.  However, occupational diseases are also compensable and qualifying injuries under the workers’ compensation system.

Occupational injuries are wounds or illnesses that result from the work environment.  One of the most common occupational injuries for office workers is carpal tunnel syndrome.  Carpal tunnel syndrome is damage to the nerves resulting from repetitive movement, which typically results from typing on a keyboard for extended periods of time in this context.  However, occupational injuries can also include lung disease, cancer, brain damage, or a variety of skin diseases, depending on the working conditions.

If an employee believes that he or she has sustained an occupational disease, he or she much file a Notice of Occupational Disease and Claim Compensation Form.  The employee must notify the employer and make sure to complete all required paperwork, just like any other workers’ compensation claim.  The employee will also need to provide medical evidence that the injury is directly caused by the working conditions or duties.

It is also important to understand that occupational injuries are typically more impacted by a discussion of “cumulative injuries” than injuries resulting from an accident.  For example, carpal tunnel syndrome may result only from work for the current employer.  However, it is also likely that an employee has sustained at least part of that injury prior to employment with the current employer, especially where the employee has not worked for the employer for a very long time.  However, just because an employee sustained part of the injury before starting employment at the current job does not mean that he or she is ineligible for workers’ compensation benefits.  In cases where the employee has sustained permanent injury, for example, the employer is only responsible for the portion of the injury sustained during employment, which is a process called “apportionment.”.  In addition, employers need to know that an employee who aggravates a non-industrial injury during employment can still request workers’ compensation benefits.

If you have questions about the types of injuries that your business may be responsible for, call us today.  We have extensive experience helping business owners understand their rights and responsibilities under California law.

Who Chooses the Doctor?

The workers’ compensation system provides important rights and responsibilities for both employees and employers.  Employees can rest easy knowing that they can receive benefits and medical care costs if they suffer a work-related injury.  Employers can also feel a sense of relief knowing that the workers’ compensation system means that the employee cannot sue for the injury, except in certain limited circumstances.  Despite these reassuring facts, workers’ compensation does require several important procedural steps.  One of the most obvious is that the injured employee will have to get medical attention.  As the medical diagnoses and care are clearly an integral part of the workers’ compensation case, employers may wonder who gets to choose the doctor for the employee?

The medical care provider plays an essential role in the workers’ compensation case.  The doctor will diagnose the condition and determine if the injury was a result of working conditions.  The doctor will also decide how long the employee must stay out of work and what accommodations are necessary when the employee does return to the work force.  The doctor will also decide when the employee’s medical condition has stabilized and whether the employee has any permanent disability.

Before an injury occurs, an employee has the right to “predesignate” his or her personal doctor.  This means that if and when the employee sustains a work related injury, he or she can go directly to that personal, pre-designated physician for treatment.  California labor code 4600 requires employers to give employees the necessary paperwork to predesignate a treating physician.

If an employee has failed to predesignate a health care provider, then he or she will likely not be able to choose the initial physician that he or she sees for treatment of the industrial injury.  Typically the workers’ compensation insurance provider or the employer itself will have a “medical provider network.”  The employee will need to choose a doctor who is included in that network.  There are some important exceptions to this general rule.  First, if the employee needs emergency care, it is not required that he or she use a physician including in the medical provider network.  In addition, if the employer has failed to provide certain required notices or information, the employee may also not be required to use a doctor in the MPN.

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

Corporations and Workers’ Compensation

Small businesses form the backbone of the American economy.  Millions of people very year start their own business.  When forming a business, a founder has a wide variety of choices concerning the type of business organization.  A business can be a sole proprietorship, a limited liability corporation, a limited partnership, or even a hybrid of more than one of these types.  There are benefits and drawbacks to each type of business structure.  If you are thinking of choosing a corporation as the structure for your business, you need to understand how workers’ compensation interacts with the rules for corporation formation.

One thing that business owners in California need to understand is that almost all employers are required to carry workers’ compensation insurance pursuant to California labor code 3700.  Failure to carry the required insurance can result in severe civil and even criminal penalties for the business owners.  Corporations are not exempt from this requirement.  Forming a business as a corporation can provide important shelters from liability as well as tax advantages, but these advantages do not include de facto exclusion from the requirement to carry workers’ compensation insurance.

Moreover, some relatively recent changes to the California labor code provides that executive officers and directors of corporations must be included in the workers’ compensation insurance coverage.  The exception to this is if the corporation is fully owned by the directors and officers.  If that is the case, the directors and officers may elect to be excluded from workers’ compensation coverage and benefits.  For this to apply the person must be a sole shareholder who is an officer or director of a private corporation.  In that case, that person is excluded from the legal definition of “employee.” Any director or officer wishing to opt out will have to fill out specific paperwork to accomplish this.  The document is executed under the penalty of perjury, and states that he or she meets the qualifications under the California labor code for being exempt from the insurance requirements.  For officers or members of the board of directors of a cooperative corporation and for owners of a professional corporation, there are additional waiver requirements that must be met.

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

Work Restrictions and Limitations

Following a work related injury, the injured worker will need to take many steps, including paper work and obtaining medical treatment.  In most cases, an injured worker will want to return to work as soon as possible.  Employees want to continue to financially support themselves and their families, as well as avoid the depression and other unfavorable side effects that can set in from staying at home for too long.  However, even if a worker is on the road to recovery, there may be restrictions or limitations on their ability to perform typical duties.

Obtaining medical treatment is obviously one of the first actions that the injured employee will need to take following a work related injury.  The injured worker’s treating physician will evaluate the injury and determine when or even if the worker can return to work.  The physician is likely to clear the injured worker for work before he or she is totally healed.  In these cases, the physician is likely to impose work restrictions or limitations.  These will allow the injured employee to return to work while still avoiding the risk of re-injury as much as possible.  Some of the common restrictions seen for workers who are temporarily disabled are no lifting more that particular weight, no standing for longer than a particular duration, or no climbing.  Clearly the restriction will vary depending on the injury.  The treating physician needs to promptly communicate the work restrictions to the claims administrator to make sure that the restrictions and limitations are communicated properly to the employer.  The employer is obligated to comply with the restrictions imposed by the physician.  In the event that the job cannot accommodate the restrictions, then the employee may have no choice but to continue to receive temporary disability benefit is until he or she is healthy enough to return to work without those restrictions.  In the case of a permanent disability, the employer needs to try to permanently modify the job to accommodate the permanent limitation. When that is impossible, the employer will need to find another job to offer the employee that provides at least 85% or more of the same salary and benefits as the former job.

Employers should note that California law strictly prohibits employers from taking retaliatory action against an injured worker simply because of the limitations imposed.  Employers are required to make reasonable accommodations for the restrictions imposed by the employee’s treating physician.

If you have questions about workers’ compensation and your rights and responsibilities as a business owner, contact us today.  We can talk to you about your business and the workers’ compensation process.

Slip and Falls in Workers’ Compensation Cases

Diligent employers take important steps to reduce the chances that their employees will be injured in the course and scope of their employment.  These steps may include keeping equipment up to date, forming safety committees, and providing regular training to make sure employees are aware of safety features on industrial equipment.  Despite the most diligent efforts to avoid injuries and risks to employees, injuries will often happen anyway.  One of the most basic types of injuries is that sustained after a “slip and fall.”

Slip and fall injuries are not uncommon in any profession, but those where workers spend a lot of time on their feet, such as retail or food service.  Like other industrial injuries, if an employee can demonstrate that he or she sustained injury after falling during the course and scope of their working duties, then he or she may be entitled to workers’ compensation.  For example, a food server who slips and falls on a wet floor in the dishwashing area of the restaurant during a shift could have a valid claim for workers’ compensation.

It should also be noted that slip and fall cases are common in tort law.  Customers or visitors can sue a business or property owner if they sustain injury after falling.  In those cases, the injured person will have to show that the conditions that led to the fall were caused by the business or property owner’s negligent or even intentional conduct.  However, workers’ compensation is a “no fault” system.  This means that the injured employee will not have to show that the conditions that led to the injury were caused by the employer’s negligence.  The employee will only have to demonstrate that the injury was sustained in the course and scope of the worker’s duties.  Note that depending on the duties of the employee, it is not necessary that the injury be sustained while the employee is physically at the employer’s place of business.  For example, if the worker is a courier who slips and falls while making a delivery for the employer, then the injured employee can seek benefits under workers’ compensation.

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

When to hire a PI

Employers work hard to make sure that their employees are safe from injury on the job.  Unfortunately, there are times that despite the most careful precautions, an employee sustains a work-related injury and will accordingly submit a claim for workers’ compensation.  The vast majority of employees who submit a claim for workers’ compensation are validly injured and will want to return to work as soon as possible.  Unfortunately, there are a handful of dishonest people who will try to abuse the system.  If you are an employer who suspects your employee is not being totally honest about the work related injury, you may consider hiring a private investigator.

One reason you may want to consider hiring a private investigator is if the medical reports fail to match up with the severity of the injury that the employee is reporting.  This could be both in terms of the acute symptoms as well as how long it is taking the employee to recover.  When an employee commits fraud by exaggerating the severity or duration of his or her injury, it is called “malingering,” and can be a good reason to hire a private investigator.

Another reason could be if the employee’s social media shows him or her engaging in activities that do not seem compatible with the injury.  For example, if the employee states the his or her back pain prevents him or her for standing or sitting for any longer than thirty minutes, but social media indicates the employee spends weekends hiking, hiring a private investigator can help provide more proof of fraud.

Another red flag for fraud that may suggest you want to hire a private investigator is if the employee has filed lots of workers’ compensation cases in the past.  This may indicate that the employee knows how to “work the system” and has made a habit of filing fraudulent claims and malingering.  Hiring a private investigator can help you get details about past claims as well as information about how the employee is spending his or her time away from work.

A private investigator can fill many roles, such as setting up surveillance, collecting information from the internet, and talking to witnesses to the event.  The private investigator can help you uncover fraud and move forward.

We have experience assisting our clients with fraudulent workers’ compensation claims.  Call us today 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.

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