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  When making your business safe, you likely think about dangers such as a slippery floor or heavy machinery with outdated safety updates.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.

My Employee is Injured But I Don’t Have Insurance

The area of workers’ compensation law is one that is complex and nuanced.  Employers know that it is important to follow California rules and regulations about how to conduct their business, including abiding by the workers’ compensation laws.  While there are a variety of code provisions that impose affirmative duties on an employer in the workers’ compensation context, one of the most important is the almost universal requirement for employers to carry workers’ compensation insurance.  If you have failed to follow this provision and your employee has sustained a work-related injury, you may be wondering what are the important next steps.

The first step that you should take if you failed to carry workers’ compensation insurance and the employee has sustained a work-related injury is to retain a skilled attorney.  Failure to carry workers’ compensation insurance can result in severe civil penalties or even criminal prosecution.  Accordingly, you need to consult an attorney immediately to protect yourself and your business.

Next, you need to understand that just because you failed to carry insurance will not mean the business will not be responsible for medical bills.  To the contrary, an employer can still be held responsible for payment of all medical bills associated with the treatment of the work-related injury.  In addition, unlike a typical workers’ compensation case, there is no law restricting the employee from filing a civil lawsuit against the employer.  In this type of lawsuit, the employer will be presumed to have acted negligently and cannot use the defense of contributory negligence.  The result can be a very sizeable civil award to the employee.

If your business does not have the resources to pay the benefits for the injured employee, the Uninsured Employers Benefit Trust Fund can pay the workers’ compensation benefits. After the  case has been resolved and a final sum of damages awarded, the UEBTF can pay this amount to the employee.  The employer will be responsible for reimbursing the UEBTF for everything it has to pay out to the employee.  To request payment of workers’ compensation benefits from the UEBTF, the employer must apply for payment and provide certain documentation.  Ensuring your employee receives compensation from the UEBTF does not mean that you cannot be fined or even incarcerated for your failure to carry insurance.

We have externsive experience with helping clients when they have failed to carry the required insurance.  Call us today for a consultation.

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.

What Does Workers’ Compensation Not Cover?

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

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

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

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

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

What Is In the “Course and Scope of Employment?

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

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

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

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

Documenting Injuries

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

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

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

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

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.

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