The Medical Marijuana Club: High Times for Workers’ Compensation?

California is poised to join an exclusive club with regard to legalized marijuana. Voters in Washington, Oregon, Colorado, Alaska and the District of Columbia have passed laws legalizing marijuana for medicinal and recreational use. Voters in 23 additional states, including California, have laws in place that legalized marijuana use for medicinal purposes. While there is little question that recreational marijuana has no place in the workforce, employees that use it for medicinal purposes fall into a separate and unique category.

Is It Legal?

While states that have legalized marijuana believe that they have conclusively answered this question, unfortunately the reality is not so simple. This is because, to the chagrin of marijuana advocates, the federal government still officially considers marijuana to be a Schedule I drug. It is among those drugs that, according to the federal government, serve no medical purpose and cannot be prescribed as treatment for any ailment. So what are employers to do if they discover an employee has been prescribed and in fact is using medical marijuana? Employers must follow federal laws, but also are governed by the laws of the state in which they sit.

Luckily for California and other states that are grappling with legal struggles surrounding marijuana, Congress recently passed legislation that decriminalizes medical marijuana. While this does not extend to recreational marijuana, it provides guidance that allows employers to treat medical marijuana like any other treatment for an employee’s injury.

Who Pays for Treatment?

One consideration for employees who use medical marijuana and find themselves involved in the workers’ compensation system is whether its use will even be covered by their employer’s insurance coverage. For example, the New Mexico court of appeals recently found that an employer was liable for paying for an injured employee’s medical marijuana as treatment for his injuries. Whether this court’s findings will be an anomaly or guidance for future courts who will have to deal with this issue is unknown, but it does show that courts in states who have recognized medical marijuana as a viable treatment option may also consider expanding its reach into the workers’ compensation arena.

In California, the issue of whether workers’ compensation insurers will be required to pay for medical marijuana as treatment for a workplace injury has not been tested. Some insurers have indicated that they are considering handling any requests on a case by case basis, as they would with any prescription drug. However, others have concerns about potential use in the workplace and whether marijuana use would constitute an impairment that could lead to further injury. This latter group is in good company, as tests for marijuana impairment are far from perfect. An important issue that will need to be addressed, most likely through individual claims under existing workers’ compensation laws, is how to determine if a workplace injury was in-part or completely due to the employee’s use of medical marijuana and therefore, not compensable.

Conclusion

California lawmakers, attorneys, and citizens should be watching how medical marijuana in the workplace is being handled by courts in states such as Colorado and New Mexico. The future of coverage for treatment will likely be heavily impacted by how those courts rule on facts that are similar to those faced by parties involved in California workers’ compensation cases.

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Workers’ Compensation Review: News of the Weird

As any workers’ compensation attorney can tell you, sometimes people are injured in some very interesting ways. The most intriguing aspect of odd injury cases is the fact that they are sometimes compensable. The following is a review of some of the more interesting workers’ compensation cases to come out of courts in California and beyond, and should serve as a reminder that the workplace is a very dangerous place indeed.

My Hero, or How One Man Took on the Vending Machine, and Lived

Few things are more dangerous to the health of Americans as processed junk food, or so some say. I would offer up a story out of Illinois as evidence that the actual snack machine is more of a threat. According to legal documents, a Circuit City employee named Clinton Dwyer was a man who could not stand idly by and allow the office snack machine to deny his coworkers the right to enjoy a bite to eat with their break. Dwyer leapt into action after the nefarious machine refused to let go of a tasty treat. Unfortunately for Dwyer, he fought the machine and the machine won when he was knocked to the ground with a broken hip. The most surprising part of this story, however, is not the sheer determination of hungry employees, but the fact that the Illinois Workers’ Compensation Commission and state appellate court found his injury to be compensable. They disagreed as to whether it was due to the personal comfort doctrine or the good Samaritan doctrine, but the end result was that the employer’s insurer had to pay for treatment.

Chasing Windmills

The final case is from 2013 out of Ohio involving an argument over what constitutes horseplay in the workplace. Specifically, an employee was casually walking down the hallway at work when she and a coworker collided, causing her to fall to the ground and suffer an injury. As the injury happened in the workplace, naturally the injured employee filed a workers’ compensation claim. This was no everyday coworker collision, however, as it was found out that the injured employee had been casually walking down the hallway while swinging her arms like windmills. According to her coworker’s testimony, the injured employee often walked down the hallway like this and so he was merely trying to block her swinging arms when she was knocked to the ground. Since horseplay generally acts as a bar to receiving workers’ compensation benefits, it is understandable that an injured worker would be creative, but the Ohio court thought differently.

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California’s Special Mission Exception

California’s Special Mission Exception in the Courts: A Review

California’s coming and going rule is a commonly cited, and often litigated, concept in the workers’ compensation arena. While seemingly straightforward, this rule has many exceptions, not least of which is the special mission exception. Courts in California have helped shape the special mission exception through decisions involving numerous different fact patterns. Understanding the nuances of these cases and reasons supporting a certain decision can help others who find themselves navigating the workers’ compensation system.

California’s Special Mission Exception

Lantz v. Workers’ Compensation Appeals Board (2014)

In this case, the Lantz worked as a correctional officer and commuted approximately 85 miles from his home to work each day. After completing his shift, he was ordered by his employer to stay and work the following shift. Once he completed the double shifts, he began his commute home and was killed in an automobile accident. In response to his widow’s application for workers’ compensation benefits, the Workers’ Compensation Appeals Board (WCAB) found in favor of Lantz’s employer, citing the coming and going rule to bar an award of benefits. Lantz’s widow appealed and argued that her husband was on a “special mission” for his employer after being requested to stay for a second shift.

The court of appeals affirmed the decision of the WCAB, essentially stating that the request by Lantz’s employer was not sufficient to trigger the special mission exception to the coming and going rule. The WCAB and court of appeals found that the employer’s request that Lantz stay to work a double shift was not so far out of the ordinary to be considered a special mission, and therefore, his injury did not arise out of employment. The factors that were relied upon to make this decision were that the request was a common occurrence for persons in Lantz’s position and that the duties of the second shift were sufficiently similar to the duties he performed during his regularly scheduled shift, thereby making the employer’s request not extraordinary.

Compare this outcome with that of Safeway v. WCAB, a much earlier case involving the special mission exception.

Safeway v. WCAB (1980)

In this case, a data entry clerk was asked by his employer to stay past the end of his shift to help with inventory. Approximately five hours after the time he normally would have been heading home, the worker left his place of employment and commuted home. The worker was then injured as he left his car and was walking toward his home. The employer in this case argued that the coming and going rule barred the worker from receiving workers’ compensation benefits, but the WCAB disagreed. The WCAB found that the employer’s request for the worker to stay past his shift constituted a special mission, and therefore the worker was entitled to benefits. The employer appealed and the case went before the court of appeals, which upheld the decision of the WCAB.

In the Safeway case, the court of appeals cited two factors it used in making this decision. The first factor was that the employer’s request required the worker to perform inventory duties, which were out-of-the-ordinary from his normal data entry duties. Second, the WCAB stated that a request from an employer that requires an employee to leave work at a later time than usual is similar to requesting that an employee come in earlier than usual, which is traditionally covered by the special mission exception. Citing California’s “policy of liberal construction in favor of the employee,” the court of appeals upheld the WCAB’s decision to award benefits to the injured worker.

Conclusion

Essentially, these two cases show that whenever the coming and going rule and its many exceptions are at issue, the final outcome will depend greatly on the specific facts of the matter at hand. Though seemingly simple, successfully navigating a case involving the coming and going rule can require the use of complex legal principles and novel arguments.

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Workers’ Compensation Settlements: Medicare Set Asides

The workers’ compensation process can be confusing, especially for injured workers who just want

to get back to their pre-injury lives. While the system was created to streamline cases involving

workplace injuries, the numerous statutes and rules that are govern these types of cases can get

complicated, especially when federal benefit programs are involved. For example, what if a

worker’s injuries require prescription medication or other care that may one day be covered by

Medicare? In this situation, as part of a settlement agreement, there will also be money that is

designated as a “medicare set-aside.”

Medicare Set Asides

What is a Medicare Set-Aside?

A Medicare set-aside is part of a settlement agreement that designates a portion of a workers’

compensation settlement amount to pay for future medical treatment related to the workplace

injury. Set-aside accounts are required as part of workers’ compensation settlement agreements

because Medicare is considered a second payer, which means that it wants to ensure that any

treatment that is related to the workplace injury is first payed by the workers’ compensation

insurer. Once the money in the set-aside account is depleted, so long as certain conditions have

been met, taxpayer money is then used to pay for medical treatment that is covered pursuant to the

Medicare program.

When is a Medicare Set-Aside Required?

While an attorney can provide more information, a Medicare set-aside is generally required in two

situations. First, it is required whenever an injured worker is currently designated as a Medicare

beneficiary and the settlement amount is more than $25,000. The second situation is a bit more

complicated. The second reason a Medicare set-aside account is necessary is two-pronged. Even if

an injured worker is not a current Medicare beneficiary, if there is a reasonable expectation that the

injured worker will be eligible for Medicare within thirty months of the settlement day, and if the

total settlement amount is expected to be greater than $250,000, then a set-aside will be necessary.

The total settlement amount not only includes any lump sum cash settlement, but it also takes into

account the amount that has been calculated for future medical expenses and disability or lost

wages over the life of the settlement.

Being injured at work can change someone’s life forever. Oftentimes, the highest priority of the

injured worker is to recover their health and return to the life they had pre-injury. Unfortunately

that is not always possible. Workers’ compensation laws were designed to help an injured worker

receive immediate care and treatment for a workplace injury without having to go to court. While it

is true that a large majority of cases no longer go through the court system, there are many other

administrative obstacles to navigate in order to ensure an injured worker receives the care and

treatment they deserve. Medicare set-asides are just one more element to workers’ compensation

law and it is advisable to obtain advice from someone who has experience in these matters before

entering into any settlement agreement.

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Workers’ Compensation Temporary Disability Benefits: Partial Vs. Total Explained

Temporary Workers Compensation Disability Benefits?

In California, when an employee is injured in a work-related accident, the employee is eligible for medical and disability benefits. While receiving initial medical treatment, the employee is evaluated by a physician to determine whether the employee has suffered any temporary or permanent disabilities as a result of the injury. If it is determined that the employee has suffered a temporary or permanent disability, the disability will be further categorized as either partial or total.

Temporary Workers Compensation Disability Benefits

Temporary Total Disability Benefits Explained

If an employee is expected to make a full recovery from a work-related injury, but will be completely unable to work for a period of time while recovering, then the employee has suffered a temporary total disability. The word “temporary” speaks to the fact that the employee will make a full recovery, while the word “total” speaks to the fact that, while recovering, the employee will not be able to perform any job duties. While the employed is temporarily totally disabled, the employer must pay the employee disability benefits to replace the income the employee has been rendered unable to earn as a result of the work-related injury. These disability benefits are not equivalent to salary; they are typically limited to 2/3^rds the employee’s salary for the period of temporary total disability. An example of a temporary total disability is a broken arm suffered by an employee whose job is to pull electrical cable. Without two functioning arms, the employee is completely unable to work until the arm heals.

Temporary Partial Disability Benefits Explained

If an employee is expected to make a full recovery from a work-related injury, but will be unable to work some days or perform some job duties for a period of time while recovering, then the employee has suffered a temporary partial disability. The word “temporary” speaks to the fact that the employee will make a full recovery, while the word “partial” speaks to the fact that, while recovering, the employee will be unable to perform some job duties or will be unable to work every day due to doctor’s orders or rehabilitation treatment. While the employee is partially totally disabled, the employer must pay the employee disability benefits to replace income the employee has been rendered partially unable to earn as a result of the work-related injury. These disability benefits are not equivalent to salary; they are typically limited to a portion of the salary the employee is unable to earn during the period of temporary partial disability. An example of a temporary partial disability is lower back pain suffered by an employee whose job is to lift objects. For a period of time, the employee may be advised by a doctor to only pick up light objects.

What To Do If You Have Been Injured On The Job In California

If you have been injured while working in California, contact an experienced California workers’ compensation attorney. The workers’ compensation system, which has been in place for roughly a century and has many nuances, can be complex to navigate. A skilled attorney will discuss the specifics of your work-related injury with you, explain your legal rights, and work to get the maximum compensation you are entitled to for present and future medical treatment, and any temporary or permanent disabilities you have suffered.

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The GAF Scale In California Workers’ Compensation Claims

Understanding The GAF Scale In California Workers’ Compensation Claims Arising From Psychological Injuries

Physical injuries aren’t the only consequence of industrial accidents in the state of California. Psychological injuries can also occur, whether directly from a traumatic event or series of events over time in the workplace, or indirectly as a side-effect of a physical injury. A direct psychological injury could result from verbal abuse from a co-worker, or from witnessing a terrible physical injury suffered at the workplace. An indirect psychological injury could be depression, anxiety, or loss of sleep caused by worry over the potential health or financial consequences of a physical injury. A hybrid injury – both physical and psychological – could be a sexual assault in the workplace.

Categorization of Injuries in California Workers’ Compensation Cases and the GAF Scale

In California, the categorization of an injury as physical, psychological, or both matters because of its bearing on the type of examination to be conducted on the injured employee. An employee suffering from only physical injuries will only be required to undergo a medical evaluation by a qualified medical examiner. In this type of evaluation, a neutral third-party doctor – loyal to neither the employee or employer – evaluates the nature and extent of the employee’s physical injuries. After reaching a determination as to the nature and extent, the doctor assigns a type and percentage of disability to the injuries, and estimates that employee’s future medical treatment needs. All of this information is included in a report – the request for authorization of medical treatment – that is sent for approval to the employer’s insurance carrier.

Workers Compensation GAF Score for Psychiatric Injuries

Whereas physical injuries resulting from an industrial accident in California are evaluated via the qualified medical examination process, psychological injuries are measured using the Global Assessment of Function (GAF) scale. This is because in the view of the psychology community, it is not helpful to measure impairment resulting from psychiatric disabilities using the percentage system applied by the American Medical Association to physical disabilities. This reflects a debate over certainty. More specifically, while it is not especially problematic to use percentages to gauge the permanent disability impact of a physical injury such as chronic lower back pain, the same cannot be said for impairment caused by mental disorders. Thus, the GAF scale seeks to replace the inflexible percentage system with an accounting of the many factors that affect mental and behavioral impairment.

Located on Axis V of the Multiaxial Assessment system created by the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition 3, the GAF is a 100 point scale that ranges from 1 to 100. A rating of 1, for example, corresponds with impairments such as an ongoing and strong danger of hurting oneself or others or an inability to maintain personal hygiene. A rating of 100, for example, corresponds with advanced functioning an array of activities.

For a more in-depth understanding of the impact of GAF scale on an evaluation of any psychological injuries you have sustained in an industrial accident, contact an experienced California workers’ compensation attorney.

Written by RiversideCountyInjuryLawyer.com Workers Compensation Blog

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Commonly Injured Body Parts In Workers’ Compensation Claims In The State of California

Industrial accidents are an unfortunate reality in the workplace. Because of this, it is important that California employees understand how the state’s workers’ compensation system works. One of the most important aspects of the system is the examination conducted by a qualified medical examiner. During the examination, a doctor examines an employee to determine the nature and extent of injuries resulting from an industrial accident. Depending on nature and extent, the doctor assigns a percentage and type of disability. The higher the percentage and more serious the type of injury assigned, the greater the benefits an injured employee will receive. What do all these complex procedures and formulas mean in practical terms for the industrially injured employee in the state of California? The lesson is that it is important to understand what doctors look for in the qualified medical examination, and how to communicate the symptoms you are experiencing to them. Here it is helpful to survey the most commonly injured body parts in workers’ compensation claims in the state of California. Doing so allows one to understand the related symptoms, and the language used to express each symptom. For injured employees unsure of how to communicate with a doctor in a qualified medical examination, it is beneficial to speak with an experienced California workers’ compensation attorney.

Commonly Injured Body Parts In Workers’ Compensation Claims In The State of California

Commonly Injured Areas

The back is one commonly injured body part in industrial accidents. The back is an expansive area, and is often divided into the lower back, mid back, and upper back. Sometimes it is the vertebrae that are referred to: the cervical, thoracic, and lumbar spine. In examining these areas for injuries, a physician will look for muscle spasms, painful loss of motion, and numbness or tingling of the extremities. If you are experiencing any of these conditions, it is very important that you tell the doctor.

The arms and legs are also body parts commonly injured in industrial accidents. In examining these areas for injuries, a doctor will look for loss of muscle strength, loss of grip strength, loss of motion, numbness, instability, and tingling.

In the weeks preceding examination by a qualified medical examiner, it is useful to keep a record of the symptoms you are experiencing in the wake of an industrial accident. This can ensure that no symptom is left unmentioned. Additionally, in the event you have any memory problems during the examination, a written record will serve as a safeguard.

It is also very important to inform the qualified medical examiner of any home health care you have been receiving. Home health care is commonly needed when an industrial accident results in particularly debilitating injuries, or in the weeks following a surgery that requires significant recovery time. Awareness of home health care treatment allows a doctor to refer to the treatment in the request for authorization of treatment sent to the employer’s insurance carrier, and thereby seek benefits for the individual providing home health care services. If you have been injured in an industrial accident in the state of California, contact an experienced California workers’ compensation attorney today.

Written by RiversideCountyInjuryLawyer.com Workers Compensation Blog

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