Time Limits and Workers’ Compensation

In the wake of an employee injury at your business, there are many issues that need to be taken care of.  First and foremost, the employee will need to receive medical treatment to address the injury or illness.  Once the dust settles, you will likely be aware that there are procedural issues involved in commencing and moving forward with the workers’ compensation system.  Time limits involved in workers’ compensation are essential to observe, just as in every other civil case.  If your business is facing a workers’ compensation case, you need to have a handle on some of the basic time requirements and limits.

First, you need to understand that there is a time limit associated with reporting the injury.  An employee who has sustained a work-related injury has thirty days to report the injury.  If he or she fails to report it, then there is a chance that he or she will lose the ability to collect workers’ compensation benefits.  People involved in these cases need to understand that the thirty-day time limit can be complicated to calculate.  The deadline starts to run when the injured worker was injured or when the injured worker had reason to believe the injury was work-related.

Another important timeline to understand in the California workers’ compensation system is the deadline by which the workers’ compensation insurance company must respond to a claim for workers’ compensation.  The insurance company must respond to the claim within ninety days.  If the insurance fails to respond, then the law presumes the claim has been approved.

Employers and employees should also keep in mind that there are time limits regarding how long an injured employee may continue to receive benefits.  For most injuries, if an employee is ruled to be temporarily disabled, he or she can receive a maximum of one hundred and four weeks of temporary disability payments in a five year period.  There are, however, exceptions, such as when a worker has sustained severe burns or chronic lung disease.  If that is the case, an injured worker may receive benefits for two hundred and forty weeks.

We have experience with helping clients understand important timelines during workers’ compensation cases.  Call us today for a consultation.

Medical Care Workers and Workers’ Compensation

After an employee has been injured in a workplace accident, he or she is likely to apply for and receive workers’ compensation benefits.  Although the type of benefits can range from treatment for acupuncture to replacement for lost wages, every workers’ compensation case will involve some sort of medical care for the injured employees.  There are a variety of medical care workers that may be involved in your workers’ compensation case.

One type of medical care worker that may be involved in your workers’ compensation case is the nurse case manager.  In some cases, the insurance company will retain the services of a nurse case manager to oversee a case.  The nurse case manager is usually a registered nurse and has several roles.  The nurse case manager will take on tasks such as arranging for transportation for workers having trouble getting to their appointments, scheduling medical appointments, and ensuring the proper prioritization and documentation of injuries.  The nurse case manager also is responsible for ensuring the correct care and treatment is being administered for the that injured employee’s particular injury.  They are responsible for communicating this information to the insurance adjuster and maybe in attendance at some medical appointments or court hearings.

Another type of medical care worker that may be involved in the workers’ compensation case is a home health care worker.  Home health care can be necessary for certain injured employees, but it can also be an exceedingly costly benefit.  Employees and employers should both be aware that California Labor Code § 4600(h) places important restrictions on the availability of this benefit.  Under this labor code, a licensed physician must provide a prescription for the home health services, and this prescription can only be used to get up to fourteen days of retroactive benefits.

Finally, a qualified medical examiner (QME) may be involved in workers’ compensation cases.  QMEs are doctors that have special certification from the workers’ compensation medical unit to examine injured workers.  A QME’s role is to evaluate the injured worker and determine the level of disability.  The level of disability will be used, in turn, to calculate the amount and duration of benefits for the injured employee.

If you have questions about the workers’ compensation process and the professionals involved, call us today.  We can talk with you about workers’ compensation and your business.

Workers’ Compensation and Product Liability

The workers’ compensation system has an extensive system of legislation determining what type of injury is eligible under the system.  Workers’ compensation legislation also provides that the system is a “no-fault” system.  This means that the employee is not obligated to prove that the employer’s negligent or intentional conduct was the direct or indirect cause of the conditions that lead to the work-related injury.  The system also limits the ways in which an injured employee can seek to recover; an employee is generally prevented from filing a civil suit in court while also pursuing recovery through workers’ compensation.  One of the exceptions regarding this rule involves product liability.

Product liability actions mean that the manufacturer of a product can be held liable in some situations when the equipment malfunctions and causes injury.  Product liability comes into play with workers’ compensation most often when an employee is injured by defective equipment in the workplace.  The employer can then seek to recover or receive reimbursement from the manufacturer for the costs the employer has had to pay through workers’ compensation.  For example, if an employee is badly burned when an oven malfunctions and the worker then files for workers’ compensation, the employer can then seek to recover the money it had to pay to the employee from the manufacturer of the oven.

Another way that products liability can figure into workers’ compensation is through the operation of a power press.  Some employers may be tempted to remove certain safety precautions installed on power presses in the interest of increasing productivity and profit.  A power press is specifically identified as any material-forming machine used to die, press, impact, stamp, punch, or extrude material.  Power presses do not income those machines simply used to cut material.  Under California Labor Code § 4558, if an employer knowingly removes the guard, the employee may be able to recover both in civil court and in through workers’ compensation.  However, if a manufacturer-installed the press, or designed it in such a way as to make it unsafe, the manufacturer may be on the hook for the employee’s injuries instead of the employer.

We have extensive experience helping our clients understand how products liability fits into workers’ compensation.  Call us today to talk about your case and your business.

How Workers’ Compensation Can Protect your Business

Workers’ compensation is an important system in California.  The system makes sure that workers receive medical treatment after receiving a work-related industrial injury.  Injured workers can receive payment for medical costs as well as a portion of replacement wages.  Clearly the worker receives protection from the system, but it is important to remember that business owners and their business structures are also protected by the workers’ compensation system.

One essential way that businesses receive protection is through the “no-fault” system under workers’ compensation.  This means that the employee is not required to prove that the business owner committed any type of negligence in order to receive compensation.  While at first blush it may seem that this is a protection for the employee, it is also a protection for the employer.  This Is because the no-fault system also prevents the injured worker from bringing a lawsuit in civil court to recover for the work-related injury.  In a civil suit, the employee would need to prove that the employer committed negligent or intentional conduct leading to the injury.  The amount of damages could be unpredictable.  By contrast, under workers’ compensation, there are specific fee schedules set out for how much an employee will be able to recover.  This system could save the employer substantial time in court as well as money for damages that employee could not recover in the workers’ compensation system.

Another important way that the workers’ compensation system protects your business is by requiring workers’ compensation insurance in almost every situation.  Workers’ compensation insurance protects your business because if your worker is injured in the course and scope of his or her employment, your business will be on the hook for the medical costs and replacement wages, regardless of whether you were actually carrying insurance.  In other words, if you do not carry the required insurance, having to pay all of these costs straight out of the business could create a significant and even detrimental impact on your business.

Finally, the workers’ compensation system helps businesses by making business owners and managers more aware of potential dangers and how to take action to help prevent injury.  Forming safety committees, keeping equipment up to date, and providing the latest safety training for employees are all ways businesses can reduce their liability, and could even reduce their insurance premiums.

We have extensive experience helping our clients understand how their business fits in the workers’ compensation context.  Contact us today for a consultation.

Intentional Conduct and Workers’ Compensation

Workers’ compensation is an important part of the California legal process.  It provides a method for workers who are injured during the course and scope of their employment to receive payment for medical costs and replacement wages.  One of the features of the workers’ compensation system that provides protection to both employees and employers is the fact that the California workers’ compensation is “no fault.”  This means that neither the employer nor the employee has to prove that the other is at fault for the injury before the employee is eligible to receive workers’ compensation benefits.  An important exception to this, however, is where the injury is received after intentional conduct from the employee.

One of the most common examples to this is when an employee has intentionally injured him or herself on the job in an effort to get workers’ compensation benefits.  This can be classified as fraud and is one of the reasons it is important to properly document and investigate every workplace injury.  For example, if your employee was injured in a purported slip and fall incident, but you have video evidence that he or she intentionally fell to the ground, it is possible that this will render him or her ineligible to receive workers’ compensation benefits.

Another way that intentional conduct can render your employee ineligible to receive workers’ compensation benefits is if your employee was involved in a fight.  If your employee engaged in an illegal act, such as assault, this will render him or her ineligible to receive workers’ compensation benefits for any injuries sustained during the fight.  It is important to note, however, that if the employee was not the aggressor, he or she may still be able to collect workers’ compensation benefits.

Workers’ compensation benefits also come into play if an employee is injured in a car accident during the course and scope of his or her employment.  During the discussion with the car insurance company, the issue of fault will be relevant.  However, in the context of workers’ compensation, the fault of the employee is irrelevant.  If, however, you could prove that the employee intentionally wrecked the company vehicle, that would mean that he or she will not be eligible for workers’ compensation.

We have experience with helping clients understand their rights and responsibilities with regard to intentional conduct and workers’ compensation.  Call us today for a consultation.

Owner/Officer Inclusions and Exclusions

Workers’ compensation is an important system to make sure that employees injured while working receive payment and medical benefits while they are recovering.  California law has extensive regulations concerning workers’ compensation.  One of the most important regulations for business owners to be aware of is the requirement to carry workers’ compensation insurance.  There are very few exceptions to this rule.  Owners of a small business or officers of a corporation may sometimes qualify for inclusions or exclusions from this requirement, however, and it is important for you to understand when these may apply if you own a business.

Although the law in California used to state that officers and directors of corporations were automatically excluded in certain cases from the requirement for businesses to cover all of their employees, this is no longer the case.  The law now provides that if officers and directors are automatically included in the requirement that all employees must be covered by workers’ compensation insurance.  If, however, the corporation is completely owned by the officers and directors, they may opt-out of insurance coverage.  If they want to do this, they will have to sign a form specifically providing that they are opting out of the insurance coverage requirement.

Sole proprietors also need to understand workers’ compensation requirements.  A sole proprietor is not generally required to provide workers’ compensation for him or herself.  The exception to this is if the sole proprietor is running a roofing business.In that case, workers’ compensation insurance will need to cover the sole proprietor. Self-employed people are generally also exempt from the requirement.

Regardless of the structure of the business, the requirement that the business carries workers’ compensation extends only to employees.  If your company uses independent contractors, it is not necessary that your insurance cover those individuals.  That said, it is really important to ensure you are correctly classifying your workers.  Simply deciding that all of your workers are independent contractors is NOT dispositive of whether they actually are employees or independent contractors.  There are many relevant factors in determining whether a worker is an employee or an independent contractor, only one of which is classification.

We have experience assisting our clients understand their responsibilities in the context of the California labor code.  Contact us today for a consultation.

Why Can’t I Fire My Worker for Filing for Workers’ Compensation?

If you are an employer, you are likely well-aware that the laws surrounding workers’ compensation in California can be complicated and seem overwhelming.  Employers sometimes struggle with issues such as proper classification of employees versus independent contractors, determining whether an injury was work-related or in the course and scope of employment, and what types of paperwork need to be filed when.  As a business owner, you are likely to understand that an employee is entitled to workers’ compensation benefits after sustaining a work-related injury.  You also need to be aware that firing your employee because the employee exercises his or her right to file for workers’ compensation is strictly forbidden under California law.

California law provides that employers may not retaliate against an employee because or she is eligible to file a workers’ compensation claim.  Under California Labor Code 132a, an employer cannot take adverse action against an employee who has filed or stated an intention to file for workers’ compensation.  The types of retaliatory action that are not allowed under labor code 132a include: purposefully demoting the employee, firing an employee before he or she has the chance to file a claim, or giving unwarranted negative employee reviews.  Essentially any negative action the employer takes because of the existence of a current or potential future workers’ compensation case.  Witnesses to the workplace injury are also protected from retaliatory action under the law.

Employers should know, however, that an employee is not immune from adverse workplace action just because of a workers’ compensation claim.  An employee can still be fired or disciplined for other reasons, as long as the reason for the adverse action is not retaliatory under labor code 132a.  For example, an employer can still terminate an employee’s employment for failure to meet important industry standards or fulfilling their regular job requirements.  Employers should still be cautious, however, because  an employee can bring a suit under 132a for free. Even if they are not ultimately successful, defending the suit will still absorb resources and time.  Before terminating or taking adverse action against an employee who is eligible for workers’ compensation, an employer should talk to an experienced workers’ compensation attorney to make sure the business is properly protected.  Even then, defense of an unsupported filing may still be necessary.

If you are a business owner and have questions about retaliation, call us today.  We can help you understand the workers’ compensation system and how your business fits within it.

Truck Drivers and Workers’ Compensation

According to some estimates, there are three and a half million truck drivers in the United States.  Trucking companies makes it possible to ship goods quickly and efficiently across the company, keeping food in grocery stores, medicine in pharmacies, bringing school supplies to children, and basically all other types of materials and goods.  In short, truck drivers help keep the country functioning.  Like with any other type of employment, it is likely that at some point, truckers will sustain a work-related injury.  If you are an employer who runs a trucking company, workers’ compensation is an important component of your business.

One very important issue for employers in the truck driving industry is the proper classification of its workers.  Until relatively recently, it was common for truck companies to classify all or most of its workers as independent contractors.  This is relevant to workers’ compensation, as businesses are not required to carry workers’ compensation insurance that covers independent contractors.  Classification of all workers as independent contractors could clearly save a company a lot of money in insurance premiums alone.  However, an employer’s classification is not dispositive as to whether a worker is actually an independent contractor.  In 2018, the California Supreme Court in Dynamex v. Superior Court of Los Angles applied the “ABC” test to trucking companies.  This rule for classification of a worker as an independent contractor is: A) the worker is free from the employers’ control and direction with respect to how the work is performed; B) whether the worker regularly performs work outside the usual course of the employer’s regular business; and C) whether the worker is usually engaged in an independently established trade, business, or occupation.  The Supreme Court determined that Dynamex had incorrectly classified light and medium only local delivery contractors as independent contractors instead of employees.  Because the trucking company had misclassified workers as independent contractors, and the employer was resultantly required to pay a judgment of six million dollars in a wage claim.  Hovever, the CA Legislature is currently attempting to extend the ABC test to Workers’ Compensation.  Employers who run trucking companies should also be aware that if a worker is an employee, then the employee will be subject to other employee-focused wage and hour rules, such as mandatory breaks.

We have extensive experience with helping business owners in all types of industries.  Call us today to discuss your business and what we can do to help.

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.

Investigating a Workers’ Compensation Claim

There are many important components of a workers’ compensation case.  Proper paperwork, obtaining medical treatment, and sorting out reasonable and necessary accommodations are just a few examples.  Investigating a workers’ compensation claim is also an important component.

When an employee sustains a work-related injury, the first step is, of course, to make sure that employee receives the necessary, immediate medical treatment.  Once it is confirmed that the situation is no longer an emergency, the employer can then turn to the administrative side.  An employer is required to provide the workers’ compensation claim form to the employee within one working day of being notified of the injury.  The employer should also move forward to an investigation.

Investigating a workers’ compensation claim does not mean that you suspect the injured employee of lying or taking other fraudulent action.  Moreover, regulation 10109(a) provides that a claims administrator “must conduct a reasonable and timely investigation upon receiving notice or knowledge of an injury or claim for a workers’ compensation benefit.”  This means that an investigation is not just advisable, but required.  If the investigation is not completed within the time limit, then section 5401 provides that the injury shall be presumed to be compensable under workers’ compensation.

A proper investigation often means collecting evidence from more than one source.  If there is video surveillance covering the area where the employee sustained an injury, that video surveillance footage often provides crucial and best information about how the injury occurred.  Eye witness accounts also may provide important information.  Eye witness accounts should be gathered immediately, as the longer you wait to record that information, the less likely it is that the witness statements will be completely accurate.  An investigation can also include talking with other employees or supervisors who work in the same area, even if they did not witness the event.  They may have information about how work is usually performed, how equipment functions, and the likelihood that the injury occurred in the manner explained by the injured employee.

An investigation can and should also include a review of social media.  Although the vast majority of workers’ compensation claims are valid, a small percentage are fraudulent.  Following social media can provide claims administrators or employers with clues that the employee is not as injured as claimed.

We have extensive experience in workers’ compensation cases ranging from minor injuries to death of an employee. Contact us today for a consultation to talk about your business.

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