How Long Will My Workers’ Compensation Case Take?

Being involved in litigation is never pleasant.  Litigation means conflict, and if you are running a business, you likely do not have the time or energy to devote to this extra struggle.  If your employee has sustained a work-related injury, it will come as no surprise when a workers’ compensation case follows soon thereafter.  Once you know that the workers’ compensation case is pending, you likely want to know how long it will take until the case has been resolved.

Unfortunately, the answer to this question is “it depends.”  Cases can vary wildly in length due to variance in complexity, the seriousness of the injury, and whether you or your insurance company disagree with the medical assessment, just to name a few reasons.  If there is a suspicion of fraud, the case can become even more complicated and lengthy.  In a nutshell, the more detailed and complex the case, the longer it is likely to take.  This is because it is likely to take a longer time to gather the evidence needed for each side to prove his or her respective position.  All that said, if the case is straightforward, the injury relatively minor, and neither side disagrees about any issues, the case could be potentially over in as little as a couple of months.  The parties are free to reach an agreement at any point during the case, even at the very beginning.  Employers should be advised, however, that any settlement agreement must be approved by the workers’ compensation judge.  It is possible for a judge to reject the settlement, even if the employee, the employer, and the insurance company have all signed the agreement.  The judge will examine whether the settlement is adequate considering all of the circumstances.

There are some areas of the case that are particularly prone to delaying the case.  One area is filing the claim.  Without the claim of injury, the case cannot move forward.  Investigating the claim can also be a source of delay, as the investigator has ninety days from the date the claim is filed pursuant to labor code 5402(b).  If there is a dispute about whether an injured employee is permanently impaired.  If that happens, either side may request an assessment of a qualified medical examiner.

If you have questions the timeline of a workers’ compensation case, call us today.  We can talk to you about your case and how long it may take.

Do I Have a Right to My Employee’s Medical Records?

Workers’ compensation can be a confusing process for both the injured employee and the employer.  Like other civil litigation, workers’ compensation requires a large amount of paperwork.  There are many forms that need to be filed in a timely manner, the employee will have to file paperwork starting the claim with the court, and doctors will need to fill out and return forms concerning the employee’s injury.  Medical conditions can be just as complicated and confusing for laypeople as the workers’ compensation claim itself.  If your business is facing a workers’ compensation case, you may be wondering if you can get a copy of your employee’s medical records.

The short answer to this question is “yes.”  Although employees may balk at this as it seems like an invasion of privacy, it is important for employees and employers both to understand that medical records can be crucial to the workers’ compensation process because an employee’s claim can be impacted by the existence of a pre-existing injury.  For example, if your worker is claiming he or she has developed carpal tunnel syndrome during the course and scope of employment, the employee can be forced to disclose medical records that show that he or she has sought treatment for the same or similar condition in the past.

Employers should keep in mind, however, that an employer cannot force an employee to provide copies of all medical records, despite the lack of connection between the work-related injury and records of past medical conditions.  Taking the same example of the employee claiming he or she has developed carpal tunnel syndrome, the employer could not likely require the employee to provide copies of medical records concerning skin cancer treatment.  Employers should also keep in mind that the Health Insurance Portability and Accountability Act (HIPAA) also applies to workers’ compensation cases.  The purpose of HIPAA is to help protect the privacy and security of medical records.  In most situations, a person would need to sign a release for another entity to receive a copy of health records. Workers’ compensation cases have a limited exception, allowing relevant medical information to be released without individual authorization from the injured employee.  However, the medical records will only be disclosed to meet the minimum required information.

We have extensive experience helping our clients understand the type of information they may have a right to during a workers’ compensation case.  Call us today for a consultation.

Workers’ Compensation Mediation

Civil litigation has a reputation for being complicated and dragging on for months or even longer.  Workers’ compensation is no exception, and when the sides disagree about central issues, the case can become complicated and lengthy.  As a way to cut down on the time and expense involved in litigation, many people are turning to mediation.  During mediation, the two sides will sit down with a neutral third party who will try to facilitate a settlement.  Mediation allows the two sides to come to an agreement that fits their needs and preferences.  If your business is facing a workers’ compensation suit, you should know what to expect from workers’ compensation mediation.

During a workers’ compensation mediation, you and the employee will both appear and discuss the case with the mediator.  The mediator is not a judge and cannot force either side to settle.  Instead, the mediator’s job is simply to help the two sides communicate and try to reach common ground on some or all of the issues.  You and the other side will both be able to present discussion and argument to the mediator about the merits of your respective positions.  Neither of you will be under oath, and the rules of evidence that are applicable in a courtroom are not applicable during mediation.  Typically before the parties arrive, the employee and the employer (or the employer’s insurance company) will have sent a detailed position statement to the mediator outlining the details of the case and the source of contention.  It is usually helpful for both sides to bring all relevant documents, especially if the parties have already completed discovery.

During mediation, the sides can discuss any part of the case that is still in disagreement.  In general, the mediator will put the two sides in two different rooms and go back and forth between the two, trying to help them find common ground.  It can take hours for an initial settlement offer to be made, and the offer is usually followed up by a counteroffer.  If the parties are able to reach a settlement on at least part of the case, the agreement will be reduced to writing and the parties will sign.  The agreement will later be presented to the court for the judge’s signature.  IF the parties are unable to reach an agreement on all of the issues, they can still proceed to a final hearing on only those issues that remain.

We have experience assisting our clients in workers’ compensation mediation.  Call us today and we can talk about your case.

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.

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.

Can I Delay Benefits If I Suspect My Employee of Workers’ Compensation Fraud

Workers’ compensation fraud costs Californians tens of millions of dollars each year.  The state of California has put into place many programs, laws, and departments to help combat this type of fraud.  The programs put in place help stop fraud before it starts, as well as prosecuting those who have already committed these crimes.  It is admirable for employers to want to help with the efforts to put a stop to fraud.  Some employers may wonder if they can delay workers’ compensation benefits if they suspect their employee is committing fraud.

The short answer to this question is “no.”  There are a lot of potential red flags for workers’ compensation fraud that an employer can be on the lookout for.  These include such issues as a lack of witnesses to an injury, delayed reporting, or the first report of an incident coming straight for an attorney.  When an employer receives a report of an incident with one of these fraud red flags, it may be tempting to refuse to take the written report or even to hold off until the employee can have a medical evaluation.  This is not permitted under California law.  Even if you suspect your employee is faking the injury, you are still required to provide your employee with a workers’ compensation form within one working day after the employee reports the work-related injury or illness.  Once the employee returns the form, the employer will have one working day to forward the claim form to the claims administrator of the workers’ compensation insurance company.  There are no exceptions to this for potential fraud.

Not all suspicions of fraud come at the very beginning of the case.  It is possible that as the case progresses, an employer may see other signs of fraud, such as social media posting showing the employee is active, potential medical fraud, or malingering.  If this occurs, an employer still does not have the right to put a halt to or somehow intercept the payments that are being made to the employee under workers’ compensation.  Instead, the employer should carefully document all concerns and report them to his or her workers’ compensation claims administrator.

We have extensive experience with helping our clients understand the role of their business in fraud prevention.  Call us today to discuss your case and what we can do to help.

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.

Why Do We Have Workers’ Compensation?

Conscientious employers take many measures to make sure that their employees are safe in the work place.  Providing training, keeping equipment in good repair, and forming safety committees are just a few ways that employers can help keep their workers safe.  In the event that a work related injury occurs despite these measures, the workers’ compensation system comes into play.  The workers’ compensation system is a complex series of statutes and case law that has evolved over time.  Understanding why we have this system can help employers and employees alike better comprehend their rights and responsibilities in the context of workers’ compensation.

Workers’ compensation provides protection for both employees and employers.  When an employee sustains a work related injury, it could mean that he or she is completely unable to work and provide for his or her family.  With workers’ compensation, the employee is able to still receive income.  The employee can also receive reimbursement for reasonable medical expenses.  This is designed to help the employee heal so he or she can return to work as soon as possible.  With workers’ compensation, the employee is also protected from the employer taking retaliatory action due to filing a workers’ compensation claim.

An employer also enjoys protection under this system.  The California workers’ compensation system is a “no fault” system.  This means that the employee does not have to prove that the injury occurred as a result of the negligent or intentional conduct of the employer.  The other side to this, however, is that the employee is typically barred from filing a tort claim against the employer to recover for the injuries.  Instead, the employee must seek recompense for injuries through workers’ compensation.  This protects the employer from repetitive or even frivolous law suits.

It is important to remember that for many years, there were no health or safety standards for work place conditions.  As a result, employees were frequently injured or even killed on the job, and their families would have no method of redress.  The workers’ compensation system helps make sure that employers are incentivized to keep their business safe, and employees are not able to make a “double recovery” by suing in tort as well as receiving benefits.

We have extensive experience with the workers’ compensation system and explaining an employer’s rights and responsibilities.  Contact us today for a consultation.

First Steps After your Worker is Injured

It is essential for employers to take all reasonable steps to reduce the risk for injury to their employees.  Keeping your employees safe is not only the right thing to do, it will keep your business running smoothly and make sure your business does not run afoul of state and federal safety regulations.  Almost all employers with very few exceptions are required to carry workers’ compensation insurance.  Although employers have taken the precautions to prevent injuries and purchased insurance in case these measures fail, injuries will inevitably happen eventually.  It is important for business owners to know the first steps to take after a worker is injured.

A workers’ compensation claim starts when an employee notifies the employer of a work-related injury.  The employer is then required to provide the employee with a Workers’ Compensation Form, also known as DWC-1.  The employee will need to fill out the form and return it to the employer.  An employee providing verbal notice is not sufficient to trigger the employer’s obligation to start paying benefits.

After the employer receives the completed claim form from the employee, the employer has fourteen days to accept, reject, or delay a decision concerning the claim.  If the employer delays a decision, it has ninety days to make a final determination.  During those ninety days, the employer must provide up to ten thousand dollars of medical care for the employee.  However, the employer does not have to pay temporary benefits during this time.

The injured employee will need to be assessed by a medical professional.  The employer has the right to select the first doctor.  However, the employee does not have to keep seeing that physician.  The employer is obligated to provide the employee with notification of the Medical Provider Network, which is a list of medical providers that the employee may choose from.  If the employer does not have a MPN, the employee can switch medical providers after thirty days, and can choose any doctor who accepts workers’ compensation insurance.

It is essential that the employer notify his or her workers’ compensation insurance provider as soon as the injury occurs.  If the employer does not have insurance, the employer needs to seek assistance from an experienced attorney, as there can be severe penalties for failure to carry the required insurance.

We have extensive experience with all types of workers’ compensation litigation.  Call us today for an appointment so we can discuss your business and what we can do to help you at the beginning of a workers’ compensation case.

Safety Committees

Employers work tirelessly to make sure their business is using the most beneficial business tactics and practices.  Employers know that this includes not only making sure marketing, manufacturing, and customer satisfaction is properly attended to, but also the safety of the employees.  If an employee sustains a work-related injury, he or she can file for benefits through the workers’ compensation system.  This is a no-fault system, meaning neither the employee nor the employer will be required to demonstrate who was at fault for the accident.  Although the workers’ compensation is a system that benefits both employee and employer, the optimal situation is actually to reduce the chance of employee injury as much as possible.  Forming a safety committee at your business can be one way to help reduce the incidences of workplace injuries.

A safety committee is a group of comprised of employees, typically from across different departments, and will include members of the workforce and members of management.  Properly executed and overseen, a safety committee can be one of the most effective ways to help cut down on workplace injuries at your business.  A safety committee will serve many purposes.  One purpose will be to make sure that employees are more away of the proper safety procedures in place.  The safety committee can organize more frequent safety briefings and help amend corporate safety handbooks.  The safety committee can also serve as a place where other employees can bring safety concerns to the attention of management.  Safety committees can help facilitate communication to ensure management is aware of the nature and frequency of certain risks or violations happening in the workplace.  The safety committee can also help construct an action plan to improve workplace safety, as well as develop goals and incentive programs to encourage employees to work more safely.

There are particular traits of employees you may want to focus on when deciding who would be best suited to serve on a safety committee.  You want to look for employees who are respected by their co-workers, as these types of employees are more likely to get results.  Committee members need to be familiar with the processes of their departments, as well as receptive to new ideas as to how to improve conditions.

If you have questions about how your business can protect itself from workers’ compensation claims, call us today.  We can talk about your business and what can be done to protect its future.

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