Beware of Incorrect Worker Classification

Employers know that there are many administrative responsibilities they must give special attention to.  This includes such issues as paying taxes, making sure you comply with any local ordinances, and keeping your inventory up to date, just to name a few.  Employers are also free to determine how they want to accomplish their work.  Employers can hire employees to work directly for their business.  Alternatively, they can retain the services of an independent contractor.  It is essential that employers properly classify their workers.

Under the California workers’ compensations system, an employer is required to provide workers’ compensation insurance for all employees.  The failure to provide the required insurance can result in hefty civil penalties and in some cases, even criminal charges.  However, an employer is not required to provide workers’ compensation insurance for independent contractors.  To that end, many employers end up classifying all of their workers as independent contractors to try to get out of providing insurance and benefits.  Like the failure to provide insurance coverage at all, the misclassification of workers as independent contractors can carry heavy repercussions.  If it is discovered that a worker is misclassified, California law provides that an employer may have to go back and pay unpaid payroll taxes that were avoided because of the misclassification. California law also provides for civil penalties starting at $5,000 for each misclassification and go up from there.  Moreover, the misclassified worker can seek up to three years of back wages, including unpaid overtime.

It is clear that employers need to be diligent in their proper classification.  However, there is not exactly a set definition of “independent contractor” versus “employee,” although employee is defined in labor code section 3351. That said, there are several issues the court will examine when trying to decide whether a worker is an independent contractor.  One of the most important issues is what type of control the worker has on how his or her work is completed.  For example, if the employer sets specific times when the worker must do the work as well as a particular place, that indicates the worker is actually an employee.  Another indication is if the employer provides the tools and equipment necessary to complete the work, the worker may actually be an employee and not an independent contractor.

We have experience assisting our clients understand worker classification.  Contact us today to talk about your business and what we can do to help make sure you are in full compliance with the law

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.

Origin and Purpose of Workers’ Compensation

The majority of employers take many measures to help make sure their employees are as safe as possible at work.  Employers may decide to provide extra safety training, purchase and install safety technology, or form safety committees, just to name a few examples.  Unfortunately, despite the most diligent efforts, it is likely that at some point, an employee will sustain a work-related injury.  When that happens, the employee may file for workers’ compensation.

The modern workers’ compensation system can trace its origin to the Workers’ Accident Insurance system that was put into place by Otto von Bismark in 1881.  The motivation behind enacting this system was what was referenced as the “unholy trinity” of tort defenses that were available at that time, including contributory negligence, assumption of risk, and the fellow servant rule.  In other words, it was much more difficult for injured employees to be compensated if they were injured on the job.

Different states here in the United States started implementing workers’ compensation systems before the turn of the century, with the first state-wide system being instituted by Maryland in 1902.  Workers’ compensation provided a much needed outlet for injured employees to seek compensation for industrial injuries.  The workers’ compensation system is designed to protect both the employer and the injured employee.  Workers’ compensation in California is a “no fault” system.  This means that the injured employee does not have to prove the injury was a result of negligence or intentional acts on behalf of the employer.  Similarly, the employer is protected from law suits from the employee, with only a few exceptions.

It is no secret that at the turn of the century, industrial working conditions for most Americans were quite dangerous, with few regulations in place to require employers make sure their workers were safe.  Especially in factories or manual labor fields, it was common for employees to sustain truly horrific injuries.  By instituting worker’s compensation, employers were motivated to make sure their businesses were as safe as possible for their employees.  In addition, employers could feel at ease knowing that their employees could not sue for negligence if the employee sustained an injury because the employer overlooked some safety measure.

We have extensive experience helping our clients understand the workers’ compensation system.  Call us today to talk about what we can do to help you.

Acupuncture, Chiropractors, and Workers’ Compensation

After an employee sustains a work-related injury, there are many steps that will need to be taken, ranging from paper work to reporting the injury to insurance company to reporting certain injuries to state and federal entities.  One of the most important steps is making sure that an employee receives proper medical treatment.  Although some medical treatment may involve addressing acute and emergent injuries, such as a broken arm, other treatment plans may include more long-term types of treatment, such as physical therapy.  Some workers may elect to pursue alternative treatments.  Two of these treatments are acupuncture or going to a chiropractor.

Acupuncture is a form of alternative medicine with roots in China.  With acupuncture, tiny needs are inserted into the patient’s skin at very particular, key points.  Practitioners of acupuncture believe that proper practice can alleviate stress or pain.  Under the California Labor Code 4600, acupuncture is recognized as a valid treatment for work-related injuries. The labor code provides that an authorized practitioner of acupuncture may apply to become certified as a health care organization to provide treatment to injured employees.

Chiropractic care is based on manipulating and realigning joints, especially those in the spine.  Practitioners believe that proper chiropractic care can help address disorders affecting nerves and muscles.  As with acupuncture, California Labor Code 4600 provides that chiropractic care is a valid treatment course for workers’ compensation.  Unfortunately, many employers have reported negative experiences with some chiropractors.  In the past, some unscrupulous chiropractors would continue to make sure the injured worker came back for as many treatments as possible to maximize the money he or she could make from the patient.  In response, California law now provides that chiropractic visits shall be capped at twenty four for each industrial injury, unless the employer authorizes additional visits.  This law was passed in response to the fact that past studies revealed that workers’ compensation cases involving chiropractic care often paid out more than thirty percent more than other cases, and tended to last longer.  The law is intended to address the fact that many chiropractors often recommend chiropractic care as a life long course of care, and some were attempting to draw out treatment far after was actually needed for the work related injury.

If you have questions about what type of care is appropriate or available for your injured worker, call us today.  We have extensive experience helping business owners understand their rights and responsibilities under California law.

Workers’ Compensation and Medical Marijuana

Healthcare is a major industry in the United States, and advances are frequently made in medical technology, genetics, and pharmaceuticals.  Medical Marijuana is one area where there have been many recent advancements.  These advancements include not only medically and understanding how marijuana can help treatment a variety of conditions, but also in the law.  When an employee sustains a work-related injury, he or she may be prescribed medical marijuana to address their injury.  As an employer, it is important for you to understand how medical marijuana fits in the workers’ compensation system.

California Labor Code section 4600 states that any treatment that is reasonably required to cure an injury or relieve the employee from the effects of the injury will be covered under workers’ compensation.  The Workers’ Compensation Appeals Board has determined that this can include medical marijuana.  Naturally, a worker must receive prescription from a doctor for the costs to be covered.  Moreover, if the treatment plan includes medical marijuana, the plan is subject to independent medical review and utilization review to make sure that independent providers agree the marijuana is medically necessary to address the work related injury.

There are some other important issues to be aware of.  First, although California has passed law legalizing the use of medical marijuana, marijuana remains illegal under federal law.  Although these federal laws are not typically enforced in terms of medical marijuana dispensaries, this does not change the fact that the possession and sale of marijuana – even for medical use – remains illegal  under federal law.

In addition, just because an employee is using medical marijuana, that does not mean he or she is not subject to certain restrictions.  Just as an employee taking prescribed opiates may not be a suitable person to continue to operate heavy machinery, an employee may not be able to use medical marijuana during the work day.  Employers also need to keep in mind that there are rules about when an employer can require drug testing.  In addition, firing an employee for testing positive for medical marijuana can run afoul of regulations under the Americans with Disabilities Act.

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

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.

Plan Ahead to Protect Your Workers From Injury

Business owners work hard to make sure the future of their business is stable and secure.  This work includes many aspects, such as investing in new technology, reinvesting in the local community, and making sure you have the best staff for your business.  One essential issue for any business owner is to plan ahead to protect employees from injury.

One important step is make sure that your employees and management staff are all properly educated on the most up to date safety protocols for your industry.  This usually includes not only providing up to date service manuals, but also ensuring there is in person, on the job training. Most people think this training is important only for workers who operate heavy machinery, but typical office workers can also benefit from this type of training, as even carpal tunnel syndrome can be a compensable injury through workers’ compensation.

Another essential step is to make sure to provide safety equipment.  Employers need to also make sure that the equipment is kept in good repair, and provide training to ensure the equipment is properly used.  Employers should strive to cultivate a working environment that encourages the proper use of all safety equipment.  Employers also need to create a schedule to make sure the equipment is up to government code and properly cleaned.

Next, employers need to make sure to maintain the proper staffing level.  Workers who are pulling long hours and working a lot of overtime may be exhausted, which can easily lead to work place injuries.  Maintaining the proper level of staff means that the employees are less tired, better able to focus, and less apt to be injured due to fatigue.

Employers should consider developing a safety plan and creating a safety committee.  Safety plans provide concrete guidelines that every employee may study about how to conduct typical tasks.  While this may seem like micromanaging, it can actually result in heightened awareness of potential risks from mundane tasks.  Safety committees can also help reduce injuries by assisting in the development and implementation of these safety plans.  Employers should also encourage an environment wherein employees are comfortable reporting potential health hazards.

If you have questions about workers’ compensation and how to help protect your workers. Call us today.  We can talk with you about your business and how to make sure you are protected.

PTSD and Workers’ Compensation

The way our society is acknowledging and addressing mental health issues has drastically changed over the past few decades.  Disorders that were previously downplayed or even outright rejected are now receiving the attending they require, helping many people address their problems and get better.  In some situations, the mental health issues may actually stem from the employee’s job.  Some jobs are high intensity and dangerous, exposing the employees to risk and trauma on a daily basis.  The unfortunately result is that many employees will then develop Post Traumatic Stress Disorder.  Although most people associate PTSD with military service, thousands of civilians suffer from PTSD that they developed through their employment.

In California, PTSD can be covered by workers’ compensation.  The claim can be a standalone claim for only PTSD, or it could be in conjunction with another work related physical or mental injury.  In addition to military members, those who are typically at high risk of developing PTSD as a work related injury would be those who are exposed to dangerous or tragic work environments, such as firefighters, police officers, social workers, or EMTs.  They can develop PTSD after a singular incident, or as the result of repeated exposure to stressful and traumatic situations.

Like any other workplace injury, a claim for workers’ compensation based on PTSD will start when the employee files a claim with the employer. There are strict deadlines as to when an employee can file for benefits after becoming aware of the injury.  In this case, the timeline would likely start from when the employee receives a diagnosis of PTSD from a medical professional or counselor.

California Labor Code 3208.3 provides that if an employee’s injury is a result of being “a victim of a violent act or from direct exposure to a significant violent act, the employee shall be required to demonstrate by a preponderance of the evidence that actual events of employment were a substantial cause (35-40 percent) of the injury.”  It is important to note that a medical diagnosis will be required to satisfy the section of the labor code.  The definition of key terms such as “victim,” “direct exposure,” and “significant violent act” is the subject of extensive litigation, and can be a nuanced argument for an attorney to make.

If you have questions about the workers’ compensation system, let us answer them. Contact us for a consultation to talk about your business.

Car Accidents and Workers’ Compensation

The borderline between work and leisure has eroded significantly for many people in recent years.  Laptop computers, tablets, smartphones, and other devices have made it simple to stay connected and do work from many different locations.  It is not uncommon for people to leave the office, drive home, boot up their home computer and continue to work.  Blurring the line between work and home can sometimes create confusion regarding workers’ compensation and when an employee is eligible for benefits.  To be eligible to receive workers’ compensation benefits, an employee must demonstrate that the injury is work related, meaning it is connected to a job-related purpose.  If an employee is injured while at the place of business, the injury is typically (although not always) considered work-related.  However, if the employee is injured while driving, it is possible that the employee may still be eligible for workers’ compensation benefits.  Commuting to and from work is not typically considered part of employment, even if the employee intends to work more once arriving home.  It is important for an employer to understand when the business may be liable for workers’ compensation benefits when the employee was driving.

Like other injuries, to demonstrate that the injury sustained while driving is covered under workers’ compensation, the driving must be work-related.  The inquiry will focus on whether the reason for the driving is related to the employee’s job duties.  For example, if the employee decides to drive to the local store to buy a snack and gets in an accident, that will likely not be covered under workers’ compensation. However, if the same employee was going to the store to purchase items at the direction of his or her boss to use at the business, then the injury would be covered under workers’ compensation, even if the employee happened to pick up the snack while at the store.  In essence, the inquiry is whether the purpose for the driving was for the business, and done in the course and scope of the employee’s job.

Employers should also note that the workers’ compensation benefits the employee will not be reduced even if the car accident was the employee’s fault.  This is because unlike the system underpinning auto insurance, workers’ compensation is a no fault system.

An important exception to the typical rule that injuries sustained while commuting are not covered by workers’ compensation is if, for example, the employee is driving to a distant work-site that is not the typical office or work space for that employee.

We have experience assisting our clients understand whether their employee’s injuries are work related.  Call us today and let us help you with your business.

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