Workers’ Compensation and Medical Technology

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

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

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

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

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

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

What You Need to Know About AB 1107

California lawmakers work hard to make sure that the state laws are reformed to best protect and serve the residents of California.  The labor code and workers’ compensation are not exceptions to these efforts.  Workers’ compensation is a complicated area of the law and one of the oldest social institutions in California.  This does not mean, however, that these statutes do not need updating and improving.  The California Assembly recently passed A.B. 1107 in an effort to improve the workers’ compensation process.

California Assembly Bill 1107 amends labor code 4610.01.  The purpose of the amendment is to reduce the delays sometimes facing injured employees in receiving medical treatment for their work-related industrial injuries.  The bill as originally filed was partially in reaction to a case called King v. CompPartners Inc.  In that case, an employee was harmed when his medication was withdrawn after a wrongful utilization review.  The injured employee then tried to sue the utilization review provider in civil court, not under workers’ compensation, because of the injuries and the wrongful withdrawal of his medication.  The California Supreme Court held, however, that the injured employee’s exclusive remedies were under workers’ compensation and the employee could not sue the utilization review provider outside of that framework.  The bill was originally filed with the aim of reducing administrative time as well as access to treatment for injured employees by exempting treating physicians from utilization review under specific circumstances.  The bill was later amended to provide that stakeholders may challenge utilization review conclusions.  Critics of the amendment are concerned that the amendment will just result in more litigation and legal gymnastics, which could reduce an injured employee’s access to care.  This is because the injured employee’s treatment will likely be delayed while waiting for the legal dust to settle.  Conversely, proponents of the amendment state that allowing stakeholders to challenge the result of a utilization review provides another much needed layer of oversight.  These advocates of the process point out that having additional oversight can help reduce the incidence of fraud in the workers’ compensation field, which could help save millions of dollars every year for Californians.

We have extensive experience helping business owners understand the changing law and how it impacts their business.  Contact us today for a consultation

Vouchers and Workers’ Compensation

The workers’ compensation system is designed to help provide income replacement for employees who have sustained work-related injuries.  The system also provides reasonable medical expenses related to the treatment of the work related injury, ranging from surgery, prescription medication, or medical equipment.  In some cases, the worker will be able to return to work quickly or may not even miss work at all.  In other cases, the employee may require extended medical care and may not be able to return to work for months, and when he or she does return reasonable accommodations may be necessary for the employee to return to work.  If the worker has been permanently disabled but is able to do some work, another type of benefit he or she can apply for is Supplemental Job Displacement Benefits, which come as a voucher.  The voucher is a non-transferrable voucher that are for injured employees who want to return to school or obtain additional vocational training.  This training or education must be obtained at a state approved or accredited school.

Injured employees wishing to receive these benefits must meet certain conditions to be eligible.  First, the employee must have a permanent partial disability as a result of the work related injury.  The employee also must not have been offered other work by his or her employer.  The voucher is worth up to six thousand dollars to go toward the payment of tuition and retraining to start the employee in a new line of work.  The voucher is meant to cover expenses such as fees, books, cost of occupational licensing or certification fees, up to one thousand dollars for computer equipment, and up to five hundred dollars for miscellaneous expenses such as transportation and uniforms.

If the employee has paid these types of expenses, he can submit itemized receipts showing payment of these eligible costs to the claims administrator.  This must be done before the voucher expires, which is two years after the voucher was issued or five years after the employee sustained a work related injury, whichever comes later.  Alternatively, if you present the voucher to the school or vocational counselor, they may receive payment directly from the claims administrator.  Whether you are being reimbursed or the school is receiving payment directly, payment should be complete within forty-five days of the expenses being properly submitted to the claims administrator.

If you have questions about the voucher system and what that means for your business, call us today.  We can help you understand the workers’ compensation system.

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.

Ratings and Reviews

CBLS