Who Chooses the Doctor?

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

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

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

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

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

When to hire a PI

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

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

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

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

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

We have experience assisting our clients with fraudulent workers’ compensation claims.  Call us today to talk about your business.

Beltran v Structural Steel

Although many may think of the workers’ compensation system as quite adversarial, like other civil law suits, workers’ compensation has some unique features which require that employer and employee work together.  After an employee is injured on the job, he or she will visit a treating physician, who may then determine the worker can only return to work with particular physical restrictions and limitations.  When a worker is determined to be permanently disabled, the employer is obligated to provide accommodations to the injured worker so he or she can return to work.  Where returning to the same position is not possible, the employer will offer the injured worker another position that will pay at least 85% of the salary the injured worker was making in the position he or she was working at the time of injury.  If the employer is unable to make such an offer or the employee refuses the job, then the employee may receive supplemental job displacement benefits (SJDB).  These benefits are given in the form of providing a voucher to the injured worker.  The voucher can then be used by the employee to pay for education, retraining, or skill enhancement at particular accredited schools.  Recent case law from the Workers’ Compensation Appeals Board (WCAB) discusses whether the employer and employee may agree that the employee should receive a SJDB voucher during a settlement.

In Beltran v. Structural Steel Fabricators, the worker Juan Pablo Beltran sustained cumulative trauma injury to his head and back due to heavy work over the course of a year while employed by Structural Steel Fabricators.  After initially denying the claim because Structural Steel alleged Beltran did not submit his workers’ compensation claim until after he was fired from the job, the parties eventually entered into a settlement.  The settlement included language that Beltran was not entitled to a SJDB voucher.  The WCJ rejected the settlement, stating that the parties were not entitled to settle the issue of whether Beltran was entitled to the voucher.  The WCAB disagreed.  The WCAB held that when the parties have a good faith dispute as to whether a worker is eligible for a voucher, the parties may agree on eligibility and include that agreement in a settlement.

We have extensive experience helping our clients with reaching favorable workers’ compensation settlements.  Contact us today and we can talk about your business.

Structured Settlements and Workers’ Compensation

The legal system is often thought of by lay people as being complicated, and legal cases may take months or even years to resolve a case.  Unfortunately, workers’ compensation is not always an exception to this, as the nature of the cases often include injuries that take time to heal before it can be determined whether a worker is permanently or temporarily disabled, the type of accommodation the worker requires, or whether the worker can even return to work at all.  Both sides are often looking for ways to shorten the process and come to a settlement.  With a settlement, the parties can avoid the time and expense of a court case that drags out and costs both sides dearly.  One way to complete this in a workers’ compensation case is a structured settlement.

A structured settlement is a settlement agreement wherein the employer or its insurance provider agrees to make a series of periodic payments to the injured worker (or the surviving family) over a period of time.  Some structured settlements provide that each payment amount will be exactly the same, but other settlements can provide additional flexibility.  In some cases, the settlement may provide for a lump sum to be paid up front before the regular payments start.  This lump sum may be to assist with housing, transportation, or medical needs.  In addition, the settlement can take future cost of living expenses increase or inflation rates into account, and provide for future increases at specific times.  It should be noted that a separate account is often set up to handle the injured workers’ future medical expenses, and that the periodic payments are meant to represent the lost wages.

One advantage for the employee in accepting a structured settlement is that the periodic payments are not subject to federal income taxes.  An employer will often benefit from a structured settlement in cases where there has been a catastrophic injury that is likely to result in a finding of permanent partial or total disability, especially where the injury is so severe that the worker is unlikely to be able to return to meaningful employment.

We have extensive experience helping our clients understand what types of settleemnts may be best for their business.  Call us today to talk about what we can do to help you.

Workers’ Compensation and Retaliation

The workers’ compensation system is designed to allow for workers who sustain work related injuries in the course and scope of their employment to receive proper compensation for their injuries and medical expenses.  The amount of the compensation and how long the benefits will continue to be paid vary widely, depending on the nature and severity of the injury.  The workers’ compensation process can take months or even years.  Employers may be tempted to try to get rid of a troublesome, injured worker who has filed a workers’ compensation claim, but California law prohibits such actions.

California law provides that employers may not discharge or threatening to discharge an employee because an employee submits a workers’ compensation claim, files an application to have the California Division of Workers’ Compensation resolve a claim, states an intent to file a claim for workers’ compensation benefits, obtains a disability rating from a physician, settles a workers’’ compensation claim, or successfully wins an award of workers’ compensation.  California courts have also found that “an employer may not discharge an employee because of the employee’s absence from his job as the consequence of an injury sustained in the course and scope of employment.” In other words, you cannot fire an injured employee simply because he or she must take time off work to get medical treatment for a work related injury.

California law also provides that employers may not penalize an injured employee for having a work-related injury or for making a workers’ compensation claim.  Under this provision, the employer is not allowed to taking any retaliatory action that is detrimental to the injured worker.  Of note, not all actions that could potentially adversely impact the worker are necessarily retaliatory.  For example, if an employer puts a policy in place that applies to all employees, stating that they are required to use sick leave for doctor visits, the injured employee would also have to abide by this rule.  Although the employee may be adversely impacted, if the worker is not being treated differently than other workers, the action will likely not be viewed as retaliatory.

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

Fraud Red Flags

Workers’ compensation is an important system which was put in place to protect workers from unscrupulous employers who would prefer to put the well-being of their business over the well-being of their employees.  The workers’ compensation system provides protections to an injured employee to make sure that he or she receives compensation for work-related injuries.  The system also provides protections to employers by helping create checks and standards for injuries and compensation limits.  California has also established special state task forces to help deal with the problem of workers’ compensation fraud.  Although the majority of workers’ compensation claims are valid, employers should keep a look out for some red flags for workers’ compensation fraud.

One red flag is a delay in reporting the incident.  For most employees, an injury severe enough to require medical attention is not an incident to be taken lightly.  Most employees who have actually sustained a work-related injury will immediately report being hurt.  An employee who waits days or even weeks to report the injury could be committing fraud.

Another common red flag is when the employee is inconsistent or vague about the details of the incident.  Employers should look for employees who frequently change the version of events or cannot remember important details, such as the date or location of the incident.

The lack of witnesses or the type of witnesses also can be a marker for fraud.  An employee whose job responsibilities typically include working together with others or in front of large groups, but who sustains an injury while he or she just happened to be alone is a red flag.  Moreover, if the only witnesses available are the close friends or family members of the injured, it may be important to investigate further.

Where you have a difficult time following up with the employee while he or she is supposed to be at home recuperating, this can also be a red flag.  In this situation, employers should watch for situations in which repeated phone calls or attempt to contact the employee during normal business hours are unsuccessful.  Family members who answer the phone may seem noncommittal about the injured employee’s whereabouts, or always claim the employee is sleeping.

Workers’ compensation fraud can have a serious impact on your business.  Call us today to talk about how we can help protect your business.

What Is Laches?

The workers’ compensation system is often described as a “statutory scheme.”  This is because in 1911, the California legislature was directed to create the statutes and framework to help provide compensation to workers injured in the course and scope of their employment.  Because the system is based on these statutes and those that were amended or added later, it is said to be statutory in nature.  Nevertheless, there have been some times when equitable principles have been applied to workers’ compensation cases.  One of these principles is laches.

Laches is a legal doctrine that means that an otherwise enforceable right may not be enforced if there is an unreasonable delay in asserting that right, and that delay results in injury to the opposing party.  In essence, if you wait too long to bring a suit or ask for redress under the workers’ compensation system, the court may refuse to allow you to enforce your right to recover, even if you would have been able to recover if you brought your suit sooner.  The California Supreme Court in Kaiser Foundation Hospitals v. Worker’s Comp. Appeals Board determined that laches is applicable to workers’ compensation cases.  In that case, the Supreme Court determined that a claim for a lien can be barred by a defense of laches.  Other court cases since then have also applied the doctrine of laches to workers’ compensation cases.  For example, Godbolt v. Wherehouse Entertainment and Ace Insurance Company, the issue of laches came up when a case was settled in 1988 through a compromise and release, although the agreement did not relinquish jurisdiction over potential liens.  Eight years later, the lien claimant contacted the defendant.  The claimant then contacted the defendant again in 2000, 2006, and 2007.  It was not until 2009 that the lien claimant finally hired an attorney and attempted to move forward with the lien.  The defendant asserted the defense of laches, due to the unreasonable delay in bringing the claim as well as claiming it had been prejudiced by the fact so much time had passed.  The WCAB determined that laches did not apply in this particular case because the defendant failed to make the necessary showing that it was actually prejudiced by the passage of so much time.

If you have questions about the defenses available to your business in a workers’ compensation case, we can help answer them.  Call us today for a consultation.

Changes to Drug Formulary Starting January 1, 2018

After a worker sustains a work-related injury, he or she will receive a treatment from a large range of providers, depending on the type of the injury. The type of treatment can range from psychological treatment to surgery to chiropractic treatment. Often, the treatment often includes prescription medication to treat and address any number of conditions that may have arisen from the work-related injury and subsequent treatment. In recognition of the widespread use of prescription medication in treatment of work-related injuries in the workers’ compensation system, the California legislature has created new laws with requirements to adopt a new drug formulary.

Drug formularies are used in both health insurance and workers’ compensation insurance fields. A drug formulary is, quite simply, a list of medications. The list will provide what types of mediations are approved and covered under the insurance and what type are not. Just because a worker is prescribed a medication that is not on the approved list of a drug formulary does not mean that the medication will not be covered under workers’ compensation, merely that the worker may have to take additional steps to have the cost of the medication covered. The purpose of a drug formulary is to attempt to cut costs to the workers’ compensation system and in some other states has seen other benefits such as a reduction in the number of opioid prescriptions.

Assembly Bill 1124 mandated the adoption of an evidence-based formulary by the DWC. After an initial comment period, the DWC has modified the proposed regulations in order to make them more clear and to add more detail. The comment period ended on August 2, 2017. There are many changes the DWC is considering making. These changes include:

  • Making the effective date for the new formulary January 1, 2018;
  • Changing drug designations from “preferred and non-preferred” to “exempt and non-exempt;”
  • Phased implementation for the formulary;
  • Clarification of particular dispute resolution processes; and
  • Updated the drug listings.

When treating an injured worker, a medical provider may reference the drug formulary, or he or she may not. It is up to the insurance company to determine whether or not the drug is on the exempt or non-exempt list and whether the company may require additional steps from the injured worker before covering the cost of the medication.

If you have questions about your business whether it is required to cover the cost of certain medication for injured employees, contact me today at (714) 516-8188. We can discuss your business and your responsibilities.

Liens and Angelotti Chiropractic

When a worker sustains a work-related injury, he or she is entitled to seek medical treatment for the initial injury as well as an on-going basis. Workers’ compensation is meant to cover the costs of the treatment, including equipment, therapy, surgery, prescription medication, and a number of other costs. A provider who has supplied services, products, or medicines to an injured worker in a workers’ compensation case can file a lien against the workers’ compensation benefits of the worker. This allows the provider to make sure he or she gets paid. In 2012, a bill came into effect that required lien holders to pay an “activation fee.”  The purpose of this fee was an attempt to clear the large backlog of small liens that were bogging down the system, as well as discouraging providers from filing small claims by making the fee large enough as to render the lien worthless. A case called Angelotti Chiropractic v. Baker challenged the constitutionality of the activation fee. The case claimed that the activation fee was a violation of the Equal Protection clause of the United States Constitution because large institutional lien holders such as union trusts and health care plans were exempt from having to pay the activation fee. The plaintiffs alleged that this was unfair, and either all or no lien holders should have to pay the fee. The court ultimately agreed.

In November 2013, the court approved the request for a preliminary injunction, which prevented the DWC from collecting the activation fee for the liens from before 2013 as well as preventing enforcement of a provision of the new law that would have allowed for dismissal of liens by December 31, 2013 if the activation fee had not been paid.

The Ninth Circuit United States Court later determined that the activation fees were, in fact constitutional. The court dismissed the injunction put in place by the trial court. The court determined that any affected lien claimant who filed a declaration of readiness or attended a lien conference between November 9, 2015 and December 31, 2015 must pay the activation fee. It also determined that pursuant to labor code 4903.06(a)(5). After December 31, 2015, activation fees were no longer accepted by the DWC. Providers should note that the fee for filing liens was completely unaffected by this case.

If you have questions about how workers’ compensation claims are paid, you need an experienced attorney to discuss it with you. Contact us today at (714) 516-8188 for a consultation to discuss your business and how workers’ compensation will impact your business.

Costs Workers’ Compensation Benefits Are Meant to Cover

Every employer does his or her best to make the working conditions at his or her place of business as safe as possible for customers and employees. Unfortunately, even with the most meticulous of precautions, injuries will happen. When an employee suffers a work-related injury, that worker may file a workers’ compensation claim. There are some specific costs that workers’ compensation is meant to cover.

First, workers’ compensation benefits are meant to cover the cost associated with the medical attention required to addressed the worker’s injury. These costs can vary wildly. Naturally, the immediate costs such as emergency room bills, ambulance costs, or just the immediate bills associated with receiving medical attention fall under this category. However, additional costs associated with on-going care may also be covered. This could include prescription medication, chiropractic care, or physical therapy. Surgery, specialist treatment, and durable medical equipment all are also meant to be covered by workers’ compensation.

Next, lost wages also may fall under workers’ compensation. An employee may be unable to work after a work-related injury. This inability could be temporary or permanent, and be partial or total. There are specific formulas provided by the law to assist in determining the amount of disability and how much an injured worker may be entitled to receive in the long-term.

In the worst-case scenario, workers’ compensation will also cover funeral costs and death benefits for a worker who passes away as a result of a work-related incident. Death benefits can extend to a deceased worker’s surviving immediate family, and the amount that the family will stand to receive from workers’ compensation is set by statute.

Conversely, there are costs that workers’ compensation and workers’ compensation insurance will not cover. Workers’ compensation insurance will not assist your business with the costs associated with finding, training, and paying a replacement employee. The burden of having to fill the gap left by an injured worker falls on your business. Penalties for OSHA violations, as well as law suits under 132a are also not covered by insurance. Although a laudable goal, workers’ compensation will also not help your business improve safety conditions at your business following the injury.

Understanding what workers’ compensation and insurance are meant to cover will help you make a plan for your business’s future. Contact me today at (714) 516-8188 to talk about your business and let me help you prepare for the future.

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