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.

Truck Drivers and Workers’ Compensation

According to some estimates, there are three and a half million truck drivers in the United States.  Trucking companies makes it possible to ship goods quickly and efficiently across the company, keeping food in grocery stores, medicine in pharmacies, bringing school supplies to children, and basically all other types of materials and goods.  In short, truck drivers help keep the country functioning.  Like with any other type of employment, it is likely that at some point, truckers will sustain a work-related injury.  If you are an employer who runs a trucking company, workers’ compensation is an important component of your business.

One very important issue for employers in the truck driving industry is the proper classification of its workers.  Until relatively recently, it was common for truck companies to classify all or most of its workers as independent contractors.  This is relevant to workers’ compensation, as businesses are not required to carry workers’ compensation insurance that covers independent contractors.  Classification of all workers as independent contractors could clearly save a company a lot of money in insurance premiums alone.  However, an employer’s classification is not dispositive as to whether a worker is actually an independent contractor.  In 2018, the California Supreme Court in Dynamex v. Superior Court of Los Angles applied the “ABC” test to trucking companies.  This rule for classification of a worker as an independent contractor is: A) the worker is free from the employers’ control and direction with respect to how the work is performed; B) whether the worker regularly performs work outside the usual course of the employer’s regular business; and C) whether the worker is usually engaged in an independently established trade, business, or occupation.  The Supreme Court determined that Dynamex had incorrectly classified light and medium only local delivery contractors as independent contractors instead of employees.  Because the trucking company had misclassified workers as independent contractors, and the employer was resultantly required to pay a judgment of six million dollars in a wage claim.  Hovever, the CA Legislature is currently attempting to extend the ABC test to Workers’ Compensation.  Employers who run trucking companies should also be aware that if a worker is an employee, then the employee will be subject to other employee-focused wage and hour rules, such as mandatory breaks.

We have extensive experience with helping business owners in all types of industries.  Call us today to discuss your business and what we can do to help.

What Is Workers’ Compensation “Leakage?”

Any business owner can tell you that running a business can be a complex proposition.  Trying to make sure your business conforms with all relevant city, state, and federal laws is an essential step before you even get to the practical aspects of your business, such as ordering inventory, advertising, and deciding when to expand.  Workers’ compensation is a very important part of your business, and the law of California provides that you must pay for workers’ compensation insurance unless you qualify under one of the very few limited exceptions.  Being familiar with the insurance system can help make sure you are properly following the rules and regulations surrounding workers’ compensation.  One major issue faced by workers’ compensation insurance carriers is “leakage.”

Leakage in the workers’ compensation context refers to payment errors.  Overpaying claims represents a major problem and challenge for insurance companies.  In general, leakage is divided into two main categories: hard leakage and soft leakage.

Hard leakage refers to erroneous payments made on claims that should not be covered.  If an insurance company pays out on a claim when the insurance policy had actually lapsed, or it turns out the injury was not compensable under the policy, would be two examples of hard leakage. In other words, hard leakage occurs when a payment is made where no types of coverage existed.

Soft leakage, by contrast, refers to when overpayments have been made on claims that are otherwise valid.  Errors in medical payments or even payments made after a claim is denied or disputed are types of soft leakage.

Another type of leakage that does not fall into either of these precise categories is vendor leakage.  Vendor leakage involves payments to outside vendors.  These would be services that are used in the investigation or in handling claims.  Private investigators, private nurse case managers, or independent medical evaluation companies are some of the most common.

Although employers may not think that these types of leakage should concern them, this is not accurate.  The more leakage an insurance company has, the more likely it will  raise rates later to make up for the unnecessary payments.

If you have questions about your business’s rights and responsibilities, call us today. Contact us today for a consultation to talk about your business.

Temporary Versus Permanent Disability

No employer wants to see an employee hurt on the job, but even when the employer has taken meticulous steps to reduce the chances of employee injury, it is almost a certainty that an injury will eventually occur.  When the employee sustains a work-related injury, he or she will be entitled to receive a variety of benefits.  The most pressing and obvious type of benefits will be medical expenses for treatment of the injury.  Temporary and permanent disability benefits may also be awarded, so as an employer, you need to understand the difference between the two.

Temporary disability benefits are designed to help replace at least a portion of the injured employee’s wages while he or she is unable to work.  The type and length of the temporary disability benefits received will be determined by the types of work restrictions set by the employee’s medical provider.  An employee will no longer receive temporary disability benefits once he or she returns to work or is told by the medical provider he or she is sufficiently recovered to return to work.  California law provides that temporary disability can only be paid for a maximum of 104 weeks within the five years following the injury.  There are, however, some conditions that will allow for payment of temporary disability benefits for longer, such as chronic lung disease, chemical burns to the eyes, or amputations.

Permanent disability benefits are benefits that are paid in recognition of your future loss of earning capacity as a result of the injury.  Like temporary disability benefits, the benefit will be paid based on a medical evaluation.  The medical provider must determine when an injury has reached maximum improvement (i.e., has “stabilized”) and at that time will determine an employee’s permanent disability rating. The medical provider will determine the percentage of your disability and the amount paid will be directly determined by that percentage; the higher the percentage, the total money will be paid to the employee.  For any amount under one hundred percent, an employee is partially disabled.  An employee who is permanently totally disabled will be entitled to receive weekly payments in the amount equal to the temporary disability rate for the rest of the employee’s life.

If you have questions about whether what the different types of disability payments mean for your business, call us today.  We can talk to you about your rights and responsibilities.

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