First Responders and Workers’ Compensation

We all owe a great debt to first responders.  First responders face great risks in their jobs on an everyday basis.  Police officers, firefighters, and paramedics never know what types of risks they may be facing when walking into any situation on their job.  Unlike most other jobs, first responders face unique challenges due to the impossibility of greatly reducing or even eliminating most on-the-job risks.  In recognition of the inherently high risk associated with first responders’ employment, California has some specific legislation concerning workers’ compensation uniquely for first responders.

One type of workers’ compensation law in California specifically for firefighters recognizes that not all injuries for firefighters are immediately apparent.  While some injuries may be obvious, such as concussions, burns, or broken bones, there are others they may not be.  If a firefighter develops lung cancer, heart disease, tuberculosis, or other lung problems, the injury is presumed to be a work-related injury.  This is an assumption that employees in other fields will not receive.  Moreover, under Labor Code 4850, a firefighter will be eligible to receive full salary for up to a year after sustaining a work-related injury.  This is different from workers in other industries, who would only be eligible to receive temporary or permanent disability payments, which amount to two-thirds of regular salary and are capped at a certain amount.

California law was also modified following the tragic mass shooting at the Las Vegas Route 91 Harvest Festival in October 2017.  There were 58 people killed in the shooting and 851 were injured.  Among those sustaining injuries were four off duty police officers from California.  Their workers’ compensation claims were denied because they were off duty and simply attending the concert when they were injured.  Labor code 3600.2 was amended in response to this.  Under the new law, an employer may cover these types of cases.  Moreover, the labor code specifically names those injured in Las Vegas at the mass shooting as being eligible for workers’ compensation benefits.  The law states that the law shall not preclude an employer from accepting workers’ compensation liability when an employee is injured while outside of California while attempting to apprehend a suspected law violator or while attempting to protect others.

We have experience assisting our clients understand the various provisions of the California labor code and how it impacts your business.  Contact us today for a consultation.

FMLA and Workers’ Compensation

Regardless of the safeguards put in place by the most careful of employers, employees will suffer a work-related injury at some point.  These injuries could be acute, such as a head injury after falling from a ladder, or more slowly developing, such as a repetitive stress injury.  No matter how the injury happens, as long as the employee was acting in the course and scope of employment, the employee can apply for medical benefits and disability payments under the workers’ compensation system.  The employee may be required to take time off from work while recovering from the injury.  In cases where an employee is ill or injured and needs extended time off from work outside of the workers’ compensation context, the employee can seek protection under the Federal Medical Leave Act.  Under the FMLA, eligible employees can take unpaid, job-protected for particular family reasons or medical reasons, such as having a child or a serious health condition that renders the employee unable to perform the essential functions of his or her job.  An employee cannot take unlimited unpaid leave under the FMLA. However,  An employee is limited to twelve work weeks of leave within a twelve-month period, unless the leave is to care for a covered service member with a serious illness or injury if the employee is an immediate family member of the service member.  In those cases, FMLA is limited to twenty-six workweeks of leave in a twelve month period.  As both FMLA and workers’ compensation cases involve an employee taking protected leave to give time to heal from an injury or illness, employers need to understand that the two laws are in place for very different reasons.  An employer cannot force an employee to take FMLA leave if there is a qualifying workers’ compensation claim.  When an injury or illness would qualify the employee for leave, an employee must provide leave to the employee under whichever law provides the employee with the greatest rights and benefits.  Accordingly, as workers’ compensation provides disability payments and medical expenses, an employer cannot force an employee to take time off under the FMLA if the employee also would qualify for time off under workers’ compensation.

We have extensive experience helping business owners understand how the various labor provisions interact.  Contact us today for a consultation.

What Workers’ Compensation Won’t Cover

Workers’ compensation is an essential component of the social welfare system in California.  With workers’ compensation, an employee can receive medical expenses to treat the work-related injury, replacement for lost wages, and permanent benefits if the disability is permanent.  Workers’ compensation benefits can also help to provide training for a new career if the injured employee is permanently disabled and unable to return to work in the capacity he or she previously worked.  There are, however, some things that workers’ compensation will not cover.

One thing that workers’ compensation will not cover is if the employee has an injury that is self-inflicted.  For example, if an employee intentionally slices his arm on a piece of equipment, workers’ compensation would not cover that injury.  Employers should also be cautious of these injuries, as an employee trying to claim workers’ compensation benefits for an injury that was intentionally self-inflicted may also be committing insurance fraud.

Another way that an employee’s injuries may not be covered by workers’ compensation is when the injury was not incurred during the course and scope of the employee’s employment duties.  One of the most common examples of this type of injury is when an employee gets in a car accident during work hours, but he or she is not engaged in work-related activities. For example, if the employee is on a lunch break or running a personal errand, that would not be in the course and scope of employment, and therefore any injury sustained during an accident would not be covered.

Third, some pre-existing injuries will not merit a new workers’ compensation award.  Employers need to keep in mind that if a pre-existing injury is aggravated and worsens as a result of employment, then the employee may be able to recover under workers’ compensation. In other words, whether an employee can recover under workers’ compensation at your business as a result of disability and injury related to a pre-existing injury is a delicate and sometimes complicated inquiry.

Finally, if an employee is injured during an altercation at work that he or she started, then workers’ compensation may not cover those injuries. For example, if your employee assaults a customer, then any injuries sustained in the ensuing fight would not be covered.  However, if the employee is assaulted first by the customer, the injuries may be covered.

If you have questions about whether the circumstances in your case will qualify for workers’ compensation, call us today.  We can help you understand the workers’ compensation system and how your business fits within it.

Investigating a Workers’ Compensation Claim

There are many important components of a workers’ compensation case.  Proper paperwork, obtaining medical treatment, and sorting out reasonable and necessary accommodations are just a few examples.  Investigating a workers’ compensation claim is also an important component.

When an employee sustains a work-related injury, the first step is, of course, to make sure that employee receives the necessary, immediate medical treatment.  Once it is confirmed that the situation is no longer an emergency, the employer can then turn to the administrative side.  An employer is required to provide the workers’ compensation claim form to the employee within one working day of being notified of the injury.  The employer should also move forward to an investigation.

Investigating a workers’ compensation claim does not mean that you suspect the injured employee of lying or taking other fraudulent action.  Moreover, regulation 10109(a) provides that a claims administrator “must conduct a reasonable and timely investigation upon receiving notice or knowledge of an injury or claim for a workers’ compensation benefit.”  This means that an investigation is not just advisable, but required.  If the investigation is not completed within the time limit, then section 5401 provides that the injury shall be presumed to be compensable under workers’ compensation.

A proper investigation often means collecting evidence from more than one source.  If there is video surveillance covering the area where the employee sustained an injury, that video surveillance footage often provides crucial and best information about how the injury occurred.  Eye witness accounts also may provide important information.  Eye witness accounts should be gathered immediately, as the longer you wait to record that information, the less likely it is that the witness statements will be completely accurate.  An investigation can also include talking with other employees or supervisors who work in the same area, even if they did not witness the event.  They may have information about how work is usually performed, how equipment functions, and the likelihood that the injury occurred in the manner explained by the injured employee.

An investigation can and should also include a review of social media.  Although the vast majority of workers’ compensation claims are valid, a small percentage are fraudulent.  Following social media can provide claims administrators or employers with clues that the employee is not as injured as claimed.

We have extensive experience in workers’ compensation cases ranging from minor injuries to death of an employee. Contact us today for a consultation to talk about your business.

Most Common Workplace Injuries

Unsafe working conditions can result in injuries to employees, ranging from minor to severe.  Most employers spend considerable time and effort trying to ensure their business is as safe as possible to prevent injuries to employees and clients alike.  When taking these steps, employers should keep in mind some of the more common types of workplace injuries, as this can help employers take the focused efforts necessary to prevent these injuries.

Back and neck injuries from lifting heavy objects are among the most common workplace injuries.  Almost fifty-seven thousand workers per year in California are injured at work when they are lifting heavy objects at work.  Employers should take measures to make sure their employees are educated about safe lifting techniques and are provided with the appropriate safety equipment, such as weight belts.

Another very common type of injury is a repetitive motion injury.  Work that requires repeated motions can result in nerve, muscle, tendon, or ligament damage.  Most people are familiar with carpal tunnel syndrome, which is a type of repetitive motion injury.  It is not, however, the only type of repetitive motion injury.  Any type of task which requires an action that is repeated over and over can result in this type of injury, such as reaching, twisting, or even lifting.

Slip and fall injuries are the third most common workplace injury reported in California, with about 30,000 people per year injured in this way at work.  It is not uncommon for there to be wet or slippery floors in some types of work environments, such as dishwashing areas in restaurants, pool decks at a gym, or wet pavement after a rainstorm.  Even if the employer is not responsible for the conditions that lead to the slippery conditions, the injured worker can still apply for workers’ compensation benefits.

Cuts and scrapes are also very common work-related injuries.  Minor cuts or scrapes may not require anything more than a bandage, but some lacerations can be very serious, even requiring surgery to repair and physical therapy to completely recover.  Almost twenty thousand workers a year in California file for workers’ compensation benefits due to cuts or scrapes.

We have experience with helping our clients understand their obligations to their employees in the workers’ compensation context.  Call us today for a consultation.

When a Car Accident Can Lead to a Workers’ Compensation Claim

There are a wide variety of ways that an employee can sustain a work-related injury.  An employee can slip and fall, sustain a repetitive motion injury such as carpal tunnel, or even a psychiatric injury like post-traumatic stress disorder.  When an employee sustains an injury at work, while working, it is almost always clear that the employee’s injury is covered under the workers’ compensation system.  However, when an employee is injured in a car accident, it may be more difficult to unravel whether the injury is covered by workers’ compensation.

The essential inquiry when determining whether injuries sustained by an employee in a car accident will be covered under workers’ compensation is whether they were driving in the car in the course and scope of their employment. The very nature of some employment involves a lot of driving, such as plumbers or patrolling law enforcement.  There can be difficulties, however, in determining whether the driving was being done in the course and scope of employment in other cases.  For example, if the worker is driving during lunch break, then it is likely not in the course and scope of employment.  However, if the employee is running an errand at the request of his or her supervisor when the car accident occurs, then the employee’s injuries are much more likely to be considered in the course and scope of employment.  In other words, even if the employee is driving during work hours, this does not necessarily mean that injuries sustained during a car accident will be covered by workers’ compensation.

It is also important to note that an accident that occurs when an employee is commuting to or from work is usually not covered by workers’ compensation.  There are, however, exceptions to this general rule.  If the employee is driving to a work site that is not the employee’s typical work location, then that commute may be covered by workers’ compensation, especially if the site is much farther away than the distance involved in his or her typical commute.

Employers should keep in mind that the workers’ compensation system is a no-fault system.  This means that the employee does not have to prove that the employer was somehow at fault for the accident.  Conversely, even if the employer can prove the employee was in part at fault for the accident, it will not mean that he or she will be rendered ineligible for workers’ compensation benefits.

If you have questions about whether your business is liable for car accident injuries to an employee, call us today.  We can talk to you about your rights and responsibilities.

Maximum Medical Improvement

All conscientious employers take as many steps as they can to reduce the likelihood their employees will sustain work-related injuries.  Even if all the right measures are taken, an employee may still sustain a work-related injury.  The workers’ compensation system will provide the employee with medical treatment costs and temporary disability benefits.  In some cases, the employee’s work-related injury may be so severe that it will never completely heal.  In such a case, the worker will be deemed to be permanently disabled.  Whether an injury is still healing or is determined by a medical professional to be one that will never heal is essential to the type and duration of benefits provided through workers’ compensation.  Maximum medical improvement is the term used in workers’ compensation cases for when an injured worker’s condition will not improve.

When an employee sustains a work-related injury, hopefully the employee is able to receive treatment and recover fully.  However, when an employee has received treatment and a medical professional has determined the employee’s condition is unlikely to improve, then the employee will be said to have reached maximum medical improvement.  Under California law, maximum medical improvement is defined as the time when the medical condition “is well stabilized, and unlikely to change substantially in the next year with or without medical treatment.”

A medical professional is the only one who can make the determination that an employee has reached maximum medical improvement.  The medical professional will write a report setting out the fact the employee has reached maximum medical improvement.  The report will also include an impairment rating.  The impairment rating will determine the amount of permanent disability benefits the employee will receive, as the employee’s disability rating directly impacts the amount of benefits.

Employers need to remember that the insurance company or the injured worker can both elect to dispute the medical professional’s assessment.  If this happens, then the disputing party is entitled to get a second opinion from another physician.  The physician will be chosen from a list of Qualified Medical Evaluators that is maintained by the Division of Workers’ Compensation.

If you have questions about workers’ compensation or disability ratings, contact us today.  We can talk with you about workers’ compensation and your business.

What Am I Obligated to Report to My Insurance Carrier?

Workers’ compensation is an important social program for Californians.  Workers’ compensation allows employees and employers to rest easy knowing that they are both protected in case an employee suffers a work-related injury.  In California, almost all employers, with very few exceptions, are required by law to carry workers’ compensation insurance.  Failure to carry workers’ compensation insurance can result in severe civil and even criminal penalties for an employer who fails to follow the law.  Employers who do properly carry insurance need to understand what must be reported to their insurance carrier to make sure they do not violate their policy.

If you have any questions about what needs to be reported to your insurance company, the first place you should look is your policy documents.  The insurance policy documents will be an essential source of information concerning your responsibilities.  If you fail to adhere to your policy’s requirements, it could result in your insurance carrier refusing to cover an incident.  It could even mean your insurance carrier will decline to continue providing coverage for your business at all.

In addition to those issues that your insurance requires to be reported, there are California laws that will also apply to reporting requirements.  The most important of these is the initial report of the injury or occupational illness.  As an employer, you are required to provide a workers’ compensation claim form within one day after the employee reports a work-related injury or illness.  After the employee returns this form to you, you must provide the claim form along with the report of the injury or illness to your insurance claims administrator within one working day.  In other words, if the employee reports an injury, you are required by law to report this to your insurance.

Another important reporting issue is fraud.  If you have suspicions about fraud in your workers’ compensation case, you need to report this to your insurance carrier.  Workers’ compensation fraud includes not only fraud on the part of the employee, but also the medical providers or even attorneys.  Your insurance carrier will then investigate the fraud concerns.  If there are founded cause for concern, your carrier will report the issue to law enforcement.

We have extensive experience helping our clients understand their responsibilities when it comes to workers’ compensation insurance.  Call us today to talk about your case and your business.

Lost Wages and Medical Costs – What Type of Benefit Will My Employee Receive

The workers’ compensation system is designed to help protect and help both employees and employers.  The employer is protected because when an employee sustains a work-related injury, the employee can usually only recover benefits through the workers’ compensation system.  In other words, the employee typically cannot file a civil suit against the employer for negligence.  An employee is protected because he or she does not have to prove fault or negligence on the part of the employer in order to obtain benefits.  If you own a business, it is important for you to understand the types of benefits your employee may receive.

One of the most obvious types of benefits that the employee will receive is medical costs for treatment of his or her injury.  The medical treatment benefits will include the costs of treatment for an acute injury, such as going to the emergency room or emergency surgery.  What some employers fail to realize, however, is that the covered medical expenses will also include ongoing expenses, such as physical therapy, acupuncture, or medical equipment.  If the injury is a mental injury, such as post-traumatic stress disorder, the medical costs would also include psychiatric care.

Temporary disability benefits are another type of benefits that will be awarded.  Temporary disability benefits are designed to provide a replacement for the lost wages for the time during which an employee is not able to return to work after sustaining a work-related injury. An employee will receive two-thirds of his or her average weekly pay for up to 104 weeks within five years of the date of the injury.

Permanent disability is not designed to address the same issue as a temporary disability.  Permanent disability is designed to address a permanent loss of function that the employee experiences as a result of the work-related injury.  The amount the employee receives will depend on the degree of disability, as determined by medical professionals, up to two hundred ninety dollars a week.

Workers may also be eligible for job displacement benefits.  If a worker is permanently disabled and as a result cannot return to his or her job, then he or she may apply to receive a voucher for retraining.  The injured worker can go back to school to be trained for a new position.

We have extensive experience helping our clients understand the benefits in a workers’ compensation case and what that means for their business.  Call us today for a consultation

Workers’ Compensation and Medical Technology

Medical technology, expertise, and understanding have advanced substantially in the past decade.  The advancement of medical science provides potential cures and treatments in all areas of chronic and acute conditions.  When an employee sustains a work-related injury, workers’ compensation provides access to medical care to help address the injury and get the worker back on the job.  Advancements in medical technology can also mean changes in the way workers’ compensation treatment is handled.

One recent advancement in medical technology that can greatly impact workers’ compensation is a blood test that has been recently approved by the Food and Drug Administration.  This blood test can help to diagnose mild brain injuries by detecting particular proteins that are released into the bloodstream after such an injury is sustained.  The test is called the Banyan Brain Trauma Indicator.  The test is reportedly very accurate, with a 97% correlation rate with CT scan results.  However, the test must be done quickly, within 24 hours of the injury.

Another new test is called the Clustered Regularly Interspaced Short Palindromic Repeat, or “CRISPR.”  This genetic test will allow doctors to customize medications based on the individual patient’s genetic code.  Tailoring medication to the individual patient means that the medication can help target the exact work-related injury sustained by the employee, such as regenerating damaged joint tissue.

There are also efforts being made to develop wearable devices to assist with tracking rehabilitation of the employee.  These devices would be worn by an injured employee to make sure he or she is actually doing the physical rehabilitation efforts prescribed by a doctor.  This is important to make sure the employee is making important efforts to heal as quickly as possible and get back to work.  This would also help doctors in making further diagnoses, as the device could track other statistics, such as heart rate and blood pressure.

FaceTime and Skype are also helping with workers’ compensation.  With these technologies, physical therapists can remotely work with their patients.  By eliminating the requirement for an employee to go to an office physically, this could cut down on the amount of time an employee will have to be absent from work.

We have experience assisting our clients to understand their options regarding their employee’s workers’ compensation.  Contact us today for a consultation.

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