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.

Most Common Workplace Injuries

Unsafe working conditions can result in injuries to employees, ranging from minor to severe.  Most employers spend considerable time and effort trying to ensure their business is as safe as possible to prevent injuries to employees and clients alike.  When taking these steps, employers should keep in mind some of the more common types of workplace injuries, as this can help employers take the focused efforts necessary to prevent these injuries.

Back and neck injuries from lifting heavy objects are among the most common workplace injuries.  Almost fifty-seven thousand workers per year in California are injured at work when they are lifting heavy objects at work.  Employers should take measures to make sure their employees are educated about safe lifting techniques and are provided with the appropriate safety equipment, such as weight belts.

Another very common type of injury is a repetitive motion injury.  Work that requires repeated motions can result in nerve, muscle, tendon, or ligament damage.  Most people are familiar with carpal tunnel syndrome, which is a type of repetitive motion injury.  It is not, however, the only type of repetitive motion injury.  Any type of task which requires an action that is repeated over and over can result in this type of injury, such as reaching, twisting, or even lifting.

Slip and fall injuries are the third most common workplace injury reported in California, with about 30,000 people per year injured in this way at work.  It is not uncommon for there to be wet or slippery floors in some types of work environments, such as dishwashing areas in restaurants, pool decks at a gym, or wet pavement after a rainstorm.  Even if the employer is not responsible for the conditions that lead to the slippery conditions, the injured worker can still apply for workers’ compensation benefits.

Cuts and scrapes are also very common work-related injuries.  Minor cuts or scrapes may not require anything more than a bandage, but some lacerations can be very serious, even requiring surgery to repair and physical therapy to completely recover.  Almost twenty thousand workers a year in California file for workers’ compensation benefits due to cuts or scrapes.

We have experience with helping our clients understand their obligations to their employees in the workers’ compensation context.  Call us today for a consultation.

Lost Wages and Medical Costs – What Type of Benefit Will My Employee Receive

The workers’ compensation system is designed to help protect and help both employees and employers.  The employer is protected because when an employee sustains a work-related injury, the employee can usually only recover benefits through the workers’ compensation system.  In other words, the employee typically cannot file a civil suit against the employer for negligence.  An employee is protected because he or she does not have to prove fault or negligence on the part of the employer in order to obtain benefits.  If you own a business, it is important for you to understand the types of benefits your employee may receive.

One of the most obvious types of benefits that the employee will receive is medical costs for treatment of his or her injury.  The medical treatment benefits will include the costs of treatment for an acute injury, such as going to the emergency room or emergency surgery.  What some employers fail to realize, however, is that the covered medical expenses will also include ongoing expenses, such as physical therapy, acupuncture, or medical equipment.  If the injury is a mental injury, such as post-traumatic stress disorder, the medical costs would also include psychiatric care.

Temporary disability benefits are another type of benefits that will be awarded.  Temporary disability benefits are designed to provide a replacement for the lost wages for the time during which an employee is not able to return to work after sustaining a work-related injury. An employee will receive two-thirds of his or her average weekly pay for up to 104 weeks within five years of the date of the injury.

Permanent disability is not designed to address the same issue as a temporary disability.  Permanent disability is designed to address a permanent loss of function that the employee experiences as a result of the work-related injury.  The amount the employee receives will depend on the degree of disability, as determined by medical professionals, up to two hundred ninety dollars a week.

Workers may also be eligible for job displacement benefits.  If a worker is permanently disabled and as a result cannot return to his or her job, then he or she may apply to receive a voucher for retraining.  The injured worker can go back to school to be trained for a new position.

We have extensive experience helping our clients understand the benefits in a workers’ compensation case and what that means for their business.  Call us today for a consultation

Time Limits in Workers’ Compensation

Most people understand that there are time limits in almost all types of legal cases, ranging from prosecution of domestic assault to suing for breach of contract.  Workers’ compensation is no exception.  There are time limits that need to be observed at many stages of the workers’ compensation case.  As an employer, you need to be familiar with some of these time limits to make sure you are properly observing the law and understand your rights and responsibilities.

The first time limit you should be aware of concerns the reporting of the injury.  When your employee sustains a work related injury, he or she is obligated by law to report that injury to you.  The employer is obligated to report the injury to the employer within thirty days of sustaining the injury or becoming aware of the injury.  The employee needs to fill out a DWC-1 claim form providing details about the injury.

Another essential time limit to be aware of is that reporting an injury to the employer is not the same as filing a claim for workers’ compensation benefits.  Under California labor code 4906(g), the injured employee is obligated to file an Application for Adjudication of Claim and Declaration with the workers’ compensation appeals board to start the case.  The worker must file this application within one year of the job-related injury or illness.  If the employee fails to meet this time limit, he or she may lose the right to file a case at all.  Once the case is commenced, there is no time limit on how long the case can last.  In the optimal circumstance, the procedure will go smoothly and it can be concluded without too much trouble.  The increasing use of alternative dispute resolution helps conclude cases quicker and with more efficiency than in the past.  If no settlement can be reached, however, the case can last for months or even longer.

There are some limited circumstances when the statute of limitations may be extended.  One common situation when this may happen is where the injured employee is under eighteen at the time he or she is injured on the job.  In that case, the statute of limitations is “tolled” and does not start to run until the injured employee turns eighteen.  Another common exception is for repetitive stress injuries, such as carpal tunnel syndrome.  In those types of cases, the statute of limitations starts to run from the date the employee became aware of the injury and also became aware the injury was a result of employment.

We have extensive experience with helping our clients understand the necessary procedures in workers’ compensation case.  Call us today to discuss your case and what we can do to help.

How OSHA and Workers’ Compensation Interact

Employers likely understand that there are many rules and regulations concerning workplace and employee safety.  Employers must take proper steps to make sure that employees are working in safe conditions that comply with state and federal law.  In California, employers are also obligated to maintain workers’ compensation insurance, with very few exceptions.  Employers need to make sure that they comply with both the California workers’ compensation system as well as other regulations regarding work place safety.  It is important for employers to grasp how workers’ compensation interacts with the California Division of Occupational Safety and Health, also commonly called Cal/OSHA.

Cal/OSHA is administered by the Department of Industrial Relations.  The purpose of Cal/OSHA is to ensure healthy and safe working conditions and protect public health and safety.  They do this by propagating regulations in California workplaces, including amusement park rides, ski lifts, and elevators.  Certain qualifying organizations have injury and illness prevention programs.  These programs are intended to identify risk factors and eliminate dangers before injuries or illnesses happen.  In addition to creating safety regulations, Cal/OSHA also provides safety and health assistance programs to employers and workers including on-site assistance and consultation.

By contrast, the workers’ compensation system is not an administration and does not independently create its own regulations.  Instead, workers’ compensation regulations come from the California legislature.  The workers’ compensation system is not designed to prevent injuries before the occur. Instead, the workers’ compensation system provides wage replacement, medical expenses, and sometimes vocational training for employees who have sustained work related injuries.  The California workers’ compensation system is a “no fault” system, which means that employees are not required to prove the work related injury resulted from any intentional or negligent conduct on the part of the employer; the worker is not required to demonstrate that the employer violated any safety regulations, including those created by Cal/OSHA.

The safer the work place, the less likely it is the employees will sustain work related injuries.  Avoiding work place injuries clearly benefits everyone, and can help the employer keep their insurance rates low.

We have experience with the workers’ compensation system and can talk to you about those regulations and Cal/OSHA.  Call us today for a consultation

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