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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The History of California’s Workers’ Compensation System

An industrial accident can jeopardize your health and financial future. Fortunately, California’s workers’ compensation system exists to protect employees injured on the job. This social safety net did not always exist. In the late 19th and early 20th centuries, medical and disability benefits were not there for injured workers, and an in accident could devastate an entire family. In California, the first form of workers’ compensation was established in 1914 through a state insurance fund. This fund, a non-profit enterprise, still exists. The workers’ compensation system, having been in place in California for a century, can be complex. To navigate it, rely on the skill of an experienced California workers’ compensation attorney. An attorney will guide you each step of the way, working to obtain the maximum compensation you need and deserve for you health and financial future.

History of the California Workers Compensation System

Why Did California Workers’ Compensation Begin?

Workers’ compensation was born out of the Industrial Revolution. This revolution spread from the England to the United States in the post-civil war Reconstruction period. Powerful new machinery was used, posing new dangers to workers. With so many heavy, fast-moving parts, gruesome workplace accidents became all too common. Unhappy with years of long hours, low wages, and dangerous working conditions, labor organized and won public sentiment. As jury awards for workplace accidents and deaths increased, industrial employers began taking out liability insurance. Still, very few families were ever compensated. Soon, during the Progressive era, reforms were ushered in. In 1908, President Roosevelt lamented the devastating impact of workplace accidents and deaths on American families, and called for legislation to better protect American workers. The government itself was the first to act, providing government employees with medical and disability benefits to compensate government employees injured on the job through the 1908 Federal Employees Liability Act.

In 1911, Wisconsin was the first to enact a state level workers’ compensation law. Soon, state after state enacted similar laws, and by 1949, every state had some form of workers’ compensation in place. The employees received compensation for workplace injuries – typically two-thirds of one’s salary for the period of temporary disability, a lump sum payment for any permanent partial disabilities, and the cost of short-term and long-term medical treatment. The employers in turn received tort relief, limiting the amount of damages possible in civil jury awards.

In 1970, workers’ compensation was improved when President Nixon signed the Occupational Health and Safety Act (OSHA), allowing the federal government to set and enforce health and safety standards for most of America’s workers. The law also established a commission to review state workers’ compensation laws. The commission – a national body – was responsible for recommending many improvements that were made to state laws, such as expanded coverage and increased benefits.

Workers’ compensation stands as the first widespread social insurance program in U.S. history. If you have been injured in a workplace accident in the state of California, contact an experienced California workers’ compensation attorney. The state system, which has been in place for many years, can be complex. A skilled attorney will be of great assistance in protecting your rights and working for the maximum compensation you are entitled to.

Written by RiversideCountyInjuryLawyer.com Workers Compensation Blog

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Serious and Willful Misconduct Claims In California’s Workers’ Compensation

When a workers’ compensation claim is brought in California, the general range of benefits includes medical treatment, temporary disability, permanent disability, and lifetime future medical treatment. Sometimes, however, it may be possible to file an additional claim for serious and willful misconduct. The threshold of proof is high, but it is met, it can increase the value of a benefits claim as much as 50%.

Serious and Willful Conduct Workers Compensation Claims

Serious and Willful Conduct Workers Compensation Claims

Serious and willful conduct claims are governed by California Labor Code sections 4553 and 4553.1. As its description implies, serious and willful conduct involves more than mere negligence. Negligence generally covers carelessness. Serious and willful conduct, on the other hand, implies intent with regard to the causation of an injury. An employer’s knowledge or reckless disregard or a high likelihood or work conditions to result in an employee being injured, if proven, will provide strong support for a claim alleging serious and willful conduct. The same is true of evidence that an employer specifically intended for an injury to occur to an employee. Additionally, serious and willful misconduct may be proven with evidence that an employer disregarded California OSHA safety orders. Here, evidence that an employer was on notice from OSHA regarding inadequate safety practices, yet repeatedly disregarded orders to institute proper procedures, will provide strong support to allegations of serious and willful misconduct.

A successful serious and willful conduct claim is potentially very lucrative because of the extent of the 50% increase of the value of the overall workers’ compensation benefits. What this means is that a 50% increase is not just levied with regard to an award of temporary or permanent disability benefits; it is also applied to medical treatment and lifetime future medical treatment. Because these costs can be so high, to increase them by 50% via a successful serious and willful misconduct claim can function to dramatically increase the overall award. Importantly, even though the larger award derives from calculations tied to medical treatment, the additional 50% goes to the injured employee rather than the healthcare system. In this way, a serious and willful misconduct functions somewhat like a punitive damages award in the civil justice system: it serves to punish the offending party for egregious conduct and hopefully deter them from repeat offenses.

A serious and willful misconduct claim is very difficult to bring, as the threshold of proof is high. However, this is not to say that there do not exist valid claims of this nature. On the contrary, some employer acts or failures to act warrant such a claim. If you feel that you have been the victim of serious and willful misconduct at the workplace, contact an experienced California workers’ compensation attorney. An attorney will help you determine your legal rights, and fight to get the compensation you need and deserve for injuries suffered on the job.

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Preparing For The Workers’ Compensation Claim Process In The State of California

A workers’ compensation claim is distinct from other legal claims. Unlike civil claims, such as those for personal injury or breach of contract, a workers’ compensation claim is administrative in nature. This is because when a claim is brought, it is a claim through the employer’s insurance company rather than a claim against the employer. Because of this, a workers’ compensation claim is a claim for benefits rather than a claim for damages. Damage awards in the civil context include financial losses, pain and suffering, punitive damages, and other things needed to make a plaintiff whole. Workers’ compensation benefits, on the other hand, include medical treatment, temporary disability, permanent disability, and, if needed, lifetime future medical care for any industrially injured body parts. Workers’ compensation, then, is akin to a benefits delivery system flowing from an employer’s insurance company to the injured employee.

Total temporary disability benefits may include up to two-thirds of an employee’s salary for 2 years during a 5-year period. These benefits may only be awarded when a doctor has diagnosed an employee with a total temporary disability rendering him or her unable to work.

Workers Compensation Claims Process

Establishment of a Permanent Disability

After an employee has received medical treatment, but has not fully recovered despite the passage of ample time, medical evidence may be presented to establish the existence of a permanent disability. This plateau is referred to as “maximum medical improvement” or “permanent and stationary” status. Presentation of medical evidence is critical because the more permanent the disability, the greater the compensation an injured employee may be entitled to. This compensation is generally not paid in one lump sum. Rather, the payments are spaced in intervals over time.

Lifetime future medical treatment benefits are often awarded in conjunction with permanent disability benefits. This is only logical, as an ongoing disability will require ongoing medical care. However, because the lifetime future medical treatment is inherently prospective in that it concerns the future, the parties – the employee and the employer’s insurance company — will often agree in advance to the employee’s future healthcare needs with regard to the injury and resulting disability, and plan accordingly. This agreement is referred to as a “stipulation” in the workers’ compensation context. Medical evidence is weighed in the negotiation process; sometimes it is very clear-cut, as with physical disabilities, whereas other times it is somewhat ambiguous, as with psychological disabilities.

What To Do If You Have Been Injured At Work In California

If you have been injured in workplace accident, reach out to an experienced California workers’ compensation attorney. An injury-related interruption of one’s career, whether short-term or long-term, can have serious financial and health-related consequences. An attorney will fight for your rights and work to get the maximum benefits you may be entitled to.

Written by RiversideCountyInjuryLawyer.com Workers Compensation Blog

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A Stipulation Is One Settlement Option To Consider In California Workers’ Compensation Claim Disputes

In the workers’ compensation claim context in California, a stipulation is one settlement option. Unlike a compromise & release, which brings about a clean break between the employee, the employer’s insurance carrier, and sometimes the employer itself through a buyout of future medical and all other costs related to a workers’ compensation claim, a stipulation keeps an injured employee’s future medical care open.

Workers Compensation Stipulated Settlement

What is a Workers Compensation Stipulation?

A stipulation can be agreed upon by an injured employee and the employer’s insurance carrier after the employee’s physician determines the employee to be “permanent and stationary” as a result of the injury. The classification involves the assignment of a certain percentage of permanent disability and estimated needs of future medical treatment. For the employee, a stipulation might be desirable because it brings about cash in the short-term, but without having to worry about out-of-pocket future medical costs if the permanent disability ends up requiring more treatment than is estimated in the present. For the employer’s insurance carrier, a stipulation might be desirable because it allows for settling once and for all the percentage of permanent disability. In locking in this percentage, the employer eliminates the risk of having to pay out even more benefits in the event the disability worsens, thereby raising the percentage assigned.

In terms of stipulation procedure, a doctor first dictates the permanent disability percentage and anticipated future medical care in a report sent to the insurance carrier. Then, the insurance carrier incorporates the report into the stipulation documents and sends it to the employee to sign. Third, the stipulation documents are sent to the workers’ compensation judge for approval. After approval, an employee begins receiving permanent disability benefits installments, and retains possession of a copy of the stipulation agreement to ensure receipt of future medical care that is needed to treat the disability.

Possible Issues with a Workers Compensation Stipulation

Disagreement can arise with regard to the percentage assigned to permanent disability. This is because a higher percentage will result in greater payout of benefits. Obviously, an injured employee will want more benefits, whereas an insurance carrier will want to pay out less. For this reason, the services of an experienced California workers’ compensation attorney will prove invaluable in negotiating for the highest possible percentage during the stipulation process.

An attorney will also make sure that you are compensated for every aspect of medical treatment covered in your doctor’s report on your injury, and will argue for any potentially necessary treatment not included in the report. During the stipulation process, your employer’s insurance carrier will be represented by skilled legal counsel; with your health and financial future at stake, make sure you are as well. Don’t leave money on the table with regard to your work-related injury; contact a dedicated California workers’ compensation attorney today.

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What To Do When Faced With A Denial Of Treatment Related To A Workers’ Compensation Benefits

What To Do When Faced With A Denial Of Treatment Related To A Workers’ Compensation Benefits Claim

If an employee is injured on the job, a doctor will prescribe a certain course of treatment after conducting a medical evaluation. This may include any combination of prescription or over-the-counter medications, therapy, surgery, and other treatments. After determining the appropriate course of treatment, the doctor will send a Request For Authorization (RFA) to the employer’s insurance carrier. The insurance carrier’s utilization review department then considers whether to approve or deny the RFA. The utilization review department is supposed to rely on certain guidelines, including a Medical Treatment Utilization Schedule (MTUS) in arriving at an approval or denial decision. If the utilization review process yields a determination that the doctor’s request does not fit within the MTUS guidelines, a denial letter will be sent to both the employee and the employee’s doctor. Reasoning may include an outright rejection of the proposed treatment, or a need to try other treatments before moving forward with the proposed treatment.

Workers Compensation Denial of Treatment

Appealing the Denial of Treatment Decision

It is possible to appeal a utilization review department’s denial of a doctor’s RFA. One method is for the employee’s doctor to send in a doctor’s appeal. Here, after reviewing the denial letter, the doctor sends in a response letter stating his or her disagreement with the denial, and restating the reasons why the originally proposed course of treatment is, in fact, necessary. Basically, in a doctor’s appeal, the doctor is asking the insurance carrier to reconsider the original request. Also, the doctor might include additional documentation in the appeal submission, or include reference to other attempted treatments that may not have been detailed in the original RFA.

Independent Medical Review of the Denial of Treatment

As of January 2013, there is a second process of appeal available to injured employees facing a denial of treatment from an employer’s insurance carrier. This process is called Independent Medical Review (IMR), and it relies on the reasoning of a qualified and neutral third party. Presently, if a utilization review results in a denial of an RFA, when sending the denial letter, the insurance carrier must include an IMR request form for the employee to fill out and submit if he or she wishes to appeal the denial. The IMR is conducted by a doctor who works for the state of California in a division of the Department of Workers’ Compensation, rather than the insurance carrier. The IMR doctor reviews the original letter from the injured employee’s doctor, and determines whether or not it should have been approved. If the IMR doctor determines that the original RFA should have been approved, the insurance carrier must approve it.

Have you been injured on the job in the state of California? Is your employer’s insurance carrier attempting to deny your doctor’s requests for treatments? You are not without rights during this stressful time. For assistance with your workers’ compensation claim, contact an experienced California workers’ compensation attorney. An attorney will explain your legal rights, and fight to obtain the maximum benefits you may be entitled to.

Written by RiversideCountyInjuryLawyer.com Workers Compensation Blog

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Understanding the Basics of Workers’ Compensation in California

The Basics of Workers’ Compensation in California

Workers’ compensation exists to protect employees who are injured while on the job. For delivery drivers, a common work-related accident is a car or truck accident. For employees in a warehouse or plant, the lifting or moving of an object is common cause of injury. For practically everyone everywhere, a slip and fall can occur when workplace surfaces fall below safety standards. In any scenario, an injured worker may be eligible for certain workers’ compensation benefits.

Medical Care Is A Benefit Of Worker’s Compensation In California

A workplace injury can result in lost wages from missed work, and even have adverse long-term impact on one’s ability to perform his or her job. Before these concerns surface, however, there is the very pressing need to receive medical care to treat injuries in the immediate aftermath of an on-the-job accident. To address this need, workers’ compensation commonly provides the benefit of medical care. When it does, medical care provided to help an employee recover from an injury caused by work is paid for by the employer. Common examples of medical care include physician visits, medical tests, prescription and over-the-counter medicines, medical equipment, and healthcare-related travel costs.

Temporary Disability Benefits May Be Included In Workers’ Compensation In California

A workplace injury can compound a painful physical injury or illness with the psychological stress of losing income due to recovery-related missed work. Fortunately, workers’ compensation commonly provides temporary disability benefits. These benefits consist of payments from an employer to make up for any wages that are lost as a result of an injury caused by work rendering an employee unable to perform his or job as usual.

Permanent Disability Benefits May Be Included In Workers’ Compensation In California

In some tragic scenarios, a workplace injury results in a permanent disability. A lost limb, paralysis, brain damage – each of these injuries can permanently prevent an employee from making a full recovery and being able to perform a job as usual again. As with temporary disability benefits, when workers’ compensation is in place, an employer may make permanent disability payments, whether over the long-term or in a lump sum, to account for an impossibility of recovery.

Supplemental Job Displacement Benefits May Be Included In Workers’ Compensation In California

Sometimes, a workplace injury may result in a permanent disability, but not altogether prohibit an employee from working in some capacities. In this scenario, an employee may still want to work, but the employer doesn’t want the employee to return to work. To aid the employee in returning to the workforce for a new employer, workers’ compensation, if applicable, may provide supplemental job displacement benefits to pay for training or education needed to rejoin the workforce.

Death Benefits May Be Included In Workers’ Compensation In California

Finally, in the unfortunate event that a workplace accident causes an employee’s death, workers’ compensation may provide death benefits to the deceased employee’s spouse, children, or other dependents.

Understanding the Basics of Workers’ Compensation in California

To find out for which workers’ compensation benefits you may be eligible, contact an experienced California workers’ compensation attorney.

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Whether Or Not To Settle A Workers’ Compensation Claim In California

In a dispute over workers’ compensation benefits in California, it can sometimes be advantageous to all parties to settle.

A Stipulation Is One Form Of Settlement In Disputes Over Workers’ Compensation Benefits In California

In the workers’ compensation settlement context, a stipulation is an agreement between parties as to the percentage of a disability a benefits applicant sustained as a result of the injury. Thus, a stipulation is tied to the essential claim component of a doctor’s recognition of medical evidence that a workplace injury has caused an employee a permanent or temporary disability. In accordance with the doctor’s diagnosis, an employee is eligible for either permanent or temporary disability benefits. In either category, a percentage is assigned to the disability in accordance with its impact on the employee’s ability to perform job duties or daily activities of living. However, sometimes there might be a disagreement between employer and employee as to this percentage – especially if different doctors reach different conclusions as to the nature and extent of injury. While some medical evidence is based strictly on objective grounds, some evidence is inherently subjective, such as a patient’s reporting of pain. The objective/subjective distinction can become especially problematic when a workplace injury is psychological rather than physical. Whatever the category, benefits concern money, and in matters of money, disputes sometimes arise. If you are considering a settlement via stipulation with regard to your workers’ compensation benefits claim in California, you may benefit from the experience of a skilled California workers’ compensation attorney. The greater the percentage you and your employer stipulate with regard to your injury, the more benefits you will receive. An attorney will fight to ensure that you receive the maximum compensation possible. This can bring you peace of mind, and ensure that the percentage stipulated to results in the stream of benefit payments you deserve, as well as any future medical care, physical therapy, and prescriptions you will need for your injury. Similarly, if you are unable to reach a stipulation agreement, an attorney will make the strongest argument at trial for the most favorable findings and award percentage determination by a judge.

Whether Or Not To Settle A Workers’ Compensation Claim In California

A Compromise In Release Is A Form of Settlement in Disputes Over Workers’ Compensation Benefits In California

In addition to a stipulation or findings and award, a settlement may be reached through a compromise in release. A compromise in release is a lump-sum buyout. It covers all permanent disability and future medical treatment, and allows an insurance company to essentially “wash its hands” of a benefits claim. Insurance companies rarely opt for a compromise in release approach initially. Rather, a company must be shown that it is in the company’s best interests to settle in this manner. In presenting an argument to an insurance company for a compromise in release lump sum payout, the skill of an experienced California workers’ compensation attorney is invaluable. Furthermore, an attorney can provide guidance as to whether a stipulation or compromise in release is the most sensible settlement option.

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When A Workplace Injury Is Psychological Rather Than Physical

When one thinks of workplace injuries, the most common ones to come to mind are car and truck accidents, falls, and accidents related to lifting or moving objects. Such physical injuries are, however, not the only ones compensable under California Workers’ Compensation laws. California law allows compensation for both physical and mental stress, including physical conditions with psychological origins, and vice versa. We have all experienced the effects of stress; when it builds, stress can both break down the body’s immune system and hamper the mind’s ability to function, thereby diminishing the ability to work. Stress can even build to the point that it causes or aggravates a mental disorder. Here, depression and anxiety can inhibit one’s ability to work and necessitate medical care. Even when stress doesn’t build over time – when it’s the result of a one-time traumatic workplace event – the psychological aftershocks can impact both job performance and quality of life outside work.

Physical Workplace Injuries May Cause Psychological Injuries

Sometimes a workplace injury is so traumatic that it causes psychological aftershocks. Depression, anxiety, mood fluctuations, loss of sleep, and nightmares are all manifestations of psychological trauma. These symptoms compound the physical injuries resulting from a workplace accident, and can have every bit as much an impact on one’s ability to return to work, as well as bearing on one’s happiness and quality of life outside the workplace.

When A Workplace Injury Is Psychological Rather Than Physical

The Threshold For Bringing A Successful Psychological Workers’ Compensation Claim

One difference in physical and psychological workers’ compensation claims in California is the threshold of proof. Under the state’s labor code, an employee seeking compensation for a psychological injury caused by work must have been employed by the employer for at least six months prior to the injury. In addition, the employee must have obtained an official diagnosis of a mental disorder responsible for the disability or a need for treatment. This diagnosis must detail the employee’s personal background, including developmental history, the existence of any personal problems, job satisfaction, and performance reviews. Third, an employee seeking compensation must prove that work-related events during the course of employment were the actual cause of the disability. The actual cause component can be complex, as it requires proof that actual events of employment were more than 50% responsible for the psychiatric injury suffered. Multiple causes can be at play, so long as work-related cause is the predominant one. To demonstrate predominance, depositions containing coworkers’ statements and interviews with family members, as well as psychological testing data, will be essential. These threshold requirements are more stringent than those imposed on a strictly physical workers’ compensation claim, and the burden of proof is on the employee. Thus, in seeking the compensation you deserve for your work-related psychological injury, you will benefit greatly from experienced of a skilled California workers’ compensation attorney.

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The Difference Between Accidents And Intentional Acts In The Workplace

Accidents And Intentional Acts In The Workplace

Injuries are an unfortunate reality in the workplace. Most of the time these injuries are the result of workplace accidents. Sometimes, however, an injury is caused by the intentional act of a coworker. Even if the injury suffered is the same, in the eyes of the law it matters greatly whether the cause is an accident or an intentional act. This is because accidents like vehicle collisions, slip and falls, chemical burns, and incidents involving lifting or moving objects will usually fall within the scope of California’s workers’ compensation laws. Intentional acts, such as physical or verbal abuse, on the other hand, are more likely dealt with by the state’s criminal justice or intentional tort laws. To discuss injuries suffered in the workplace and determine how to proceed with a claim to recover the compensation you need and deserve, contact an experienced California workers’ compensation attorney.

Workplace Accidents Are The Domain Of California’s Workers’ Compensation System

In California, almost all businesses with employees are required by law to purchase workers’ compensation insurance. This type of insurance can be purchased privately or through the state. Its purpose is to provide employees covered by the plan with medical, wage, and other benefits arising from injuries sustained in the workplace. Workers’ compensation insurance protects both employers and employees by ensuring that employers are not bankrupted by having to cover the potentially many costs arising from workplace injuries, and employees being left in financial dire straits by medical expenses and lost wages due to missed work. Physical injuries like broken bones, burns, and slipped discs are covered. So too are illnesses and diseases, as long as the work was the actual cause of the illness or disease. Psychological injuries may be covered as well, but the threshold of proof is higher than with physical injuries.

Accidents And Intentional Acts In The Workplace

Injuries Suffered As The Result Of The Intentional Acts Of A Coworker Are Generally Not Covered by California’s Workers’ Compensation System

Employers have a duty to keep business premises safe for employees. This duty extends to everything from floors to task-related procedures to the condition of vehicles used in the course of conducting business on the behalf of the employer. When this duty is breached, and an injury results, responsibility rests with the employer. This is the case, for example, if an employee slips and falls on a wet floor, pulls his or her back lifting or moving a heavy crate without adequate protective gear or training, or suffers a broken bone while operating inadequately maintained company equipment. The conduct of coworkers, however, is another matter. While employers are required to inform employees of what is and isn’t appropriate conduct at the workplace, an employer is generally not liable for the intentional bad acts of one employee against another. The duty governing conduct not related to the performance of work-related tasks is the same one that exists outside the workplace. Whether on or off the job, it is not legal to assault someone. As such, engaging in this prohibited behavior will result in liability for any injuries caused. Absent an employer’s knowledge of the violent or dangerous propensities on an employee, it is the offending employee, rather than the employer, that will be held responsible for injuries caused by an intentional act.

To discuss injuries suffered in the workplace and determine how to proceed with a claim to recover the compensation you need and deserve, contact an experienced California workers’ compensation attorney.

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Understanding Temporary Disability Benefits Under California’s Workers’ Compensation System

Temporary Disability Benefits Under California’s Workers’ Compensation Law

When the unfortunate event of injury occurs at work, California’s workers’ compensation system acts to protect employees. After an injury, an employee may file a claim seeking benefits to recover compensation for medical treatment, lost income from missed work, and other losses. An integral part of the claim process is determining what type of disability a workplace injury constitutes. There are two categories: temporary and permanent. Here, we will explore the category of temporary disabilities.

What is a Temporary Disability?

Even within the broader temporary disability category, there are subcategories of total temporary disabilities and partial temporary disabilities. A total temporary disability is one that completely prevents an employee from working for a certain period of time. A partial temporary disability, as its name implies, only prevents an employee from working for part of a certain period of time, or from performing some, but not all, job duties for a certain period of time.

Temporary Disability Benefits Under California’s Workers’ Compensation Law

The categorization of a temporary disability is determined by a doctor in accordance with standards set by the American Medical Association. The primary standard is that of “reasonable medical probability.” Using this standard, a doctor provides a diagnosis as to how long, and to what extent, an injury will affect an employee’s ability to work. In the case of a leg injury, if a doctor determines that the injury has rendered an employee in California totally temporarily disabled for a period of two weeks, then the employer’s state-required workers’ compensation insurance will step in to pay two-thirds of the employee’s salary during the time that the employee is unable to work because of the leg injury. It is important to understand that there is a limit on the amount of time an insurer will be required to pay benefits arising from disability categorized by a doctor as temporary. An insurer will only be required to pay temporary disability benefits to an employee for two years during a five-year period. This is the case for even total temporary disability unless an exception applies. Exceptions include high-velocity eye injuries and amputations. Additionally, exceptions may apply for multiple injuries, so long as they are separate and distinct from one another.

What To Do If You Have Suffered A Workplace Injury in California

If you have suffered a workplace injury in California, you will need to navigate the state’s sometimes complex workers’ compensation system. It is a process that can be an unneeded stress at a time when you are already dealing with the pain of injury while adjusting to both your work and personal responsibilities. While receiving medical treatment for your injuries, you will need a doctor to determine the nature and extent of your injuries, as they relate to your ability to perform the duties of your job. Time for recovery must be allowed, and a claim for workers’ compensation benefits must be filed. Your ability to earn a living affects virtually every facet of your life. Don’t let a work-related injury compromise that ability; contact an experienced California workers’ compensation attorney today to determine your rights and the forms of compensation you may be entitled to.

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Understanding Permanent Disabilities Under California’s Workers’ Compensation System

Permanent Disabilities Under California’s Workers’ Compensation System

Injuries are an unfortunate part of workplace life. In employment requiring physical labor or vehicle operation, especially, employees may get hurt on the job. Some injuries are temporary, while others may be permanent. In either case, California’s workers’ compensation system is there to protect employees who suffer work-related injuries and illnesses.

Permanent Disabilities

In California, a permanent disability is defined as any lasting disability from a work injury or illness that affect an employee’s ability to earn a living. In most cases, it is not possible to determine whether a disability is permanent in the immediate aftermath of a workplace injury. Obvious exceptions include paralysis or loss of limb. Medical care must be given, and time allowed for a full recovery. If, after a reasonable period of time for recovery, an employee makes a complete recovery, the disability will be categorized as temporary rather than permanent. If a complete recovery is not made – if there is a residual impact on an employee’s daily activities of living – then the disability will be categorized as permanent. Daily activities of living include cooking, cleaning, grocery shopping, running errands, standing, sitting, personal hygiene, and other basic elements of everyday life.

Permanent Disabilities Under California’s Workers’ Compensation System

Categorization of Disability Affects Workers’ Compensation Benefits

The categorization of disability is important because of its bearing on the payment of workers’ compensation benefits by an employer to an injured employee. Even if a disability is permanent, it will be assigned a percentage in accordance with its long-term impact on activities of daily living. Take, for example, back pain. If, after receiving medical treatment for a workplace injury, an employee continues to experience bothersome back pain during many of the activities of daily living, a certain percentage of permanent disability status may be assigned, and benefits awarded accordingly. Because relying exclusively on self-reporting of symptoms could result in employee abuse of workers’ compensation benefits, California balances both subjective and objective components in accordance with standards provided by the American Medical Association. Objective data, in other words, is medical evidence. These standards only apply to physical injuries, however. For psychological injuries, California uses the GAFF scale.

The greater the permanent disability is in terms of percentage, the greater the payment of benefits. Typically, benefits are paid in installments over time, rather than in a lump sum. This reduces the short-term burden on employers and insurers, and also allows for the possibility of an unexpected full recovery even after permanent disability status has been granted.

Have You Sustained a Permanent Disability?

Seeking permanent disability status through California’s workers’ compensation system can be complex. You will need to file a claim within a certain window of time following the injuries to comply with the statute of limitations. You will need to present medical evidence of the nature of your injuries, whether they are physical or psychological. Furthermore, you will have to prove that your injuries were suffered in the course and scope of employment, as required by the California Labor Code. For all these reasons, you will benefit from the skill and experience of a dedicated California workers’ compensation attorney.

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When A Workers’ Compensation Claim Is Complicated By Job Termination

Affects of Job Termination on a Workers’ Compensation Claim

Sometimes, when an employee is injured on the job and files a workers’ compensation claim, the employer subsequently fires the employee. While some firings may be legitimate and based solely on the employee’s job performance, other firings may have the illegitimate goal of evading payment of workers’ compensation. The sequence of events reflected in the latter scenario is referred to as a retaliatory discharge. Whistleblower-related retaliatory discharge is more widely known, thanks to depictions in film and television, but it also occurs in the workers’ compensation context.

Retaliation Under California Workers Compensation Law

As the California Labor Code makes clear, employers may not retaliate against an employee who files a workers’ compensation claim by terminating that employee. Section 132a of the code defines the nature of retaliatory discharge as one of discrimination, and states that there should not be discrimination against California workers who are injured in the course and scope of their employment.

Riverside County Work Injury Lawyer Kevin Cortright

While we can clearly understand the word “discrimination” as referring to retaliatory discharge, the words “course” and “scope” require further discussion. These terms are included in the code to prevent employers from being held liable for employee injuries unrelated to an employee’s job duties. For example, if an employee’s job is to sit at a desk transcribing audio recordings into text on a computer, but the employee decides to engage in horseplay by doing cartwheels down the hallway and injures his or her back in the process, the employer will not be held liable. This would be unfair, as cartwheels are not among the duties of a transcriptionist. The philosophy underlying this section of code is the principal-agent relationship between employer and employee. In the employment relationship, the agent (employee) is thought to act with the assent (agreement) of the principal (employer), for the benefit of the principal, and under the control of the principal. The satisfaction of these conditions is the reason why the employer pays the employee. Out of fairness, to ensure that employees don’t incur medical bills cutting into or even exceeding the value of wages while following the directions of an employer, California’s workers’ compensation system protects employees who sustain injuries while working in the course and scope of their employment.

Reach Out to a Workers’ Compensation Attorney for Help

If an employer fires an employee who sustains an injury while acting in the course and scope of employment, the employer commits a misdemeanor crime. Employees who are victims of this type of discrimination may recover compensation such as additional workers’ compensation benefits, reinstatement, back pay, and the value of lost benefits.

If you have been discharged after filing a workers’ compensation claim, contact an experienced California workers’ compensation attorney immediately to determine your rights and the forms of compensation you may be entitled to.

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5 Simple Steps Do I Need A Riverside Workers Compensation Lawyer

No one wants to get hurt on the job. Yet it happens to people day in and day out. Riverside Workplace accidents happen with surprising frequency – which is why workers compensation insurance is mandatory in California workplaces. This is true even if the company has only a single employee. Unfortunately, it is not always easy to get the workers compensation benefits you need after your injury.

Riverside Workers Compensation Lawyer

If you have been injured in the workplace you may be asking yourself if hiring an attorney will be necessary. Consider the following questions to determine if you should contact a workers compensation lawyer.

5 Questions To Ask Yourself to Determine if You Need a Riverside Workers Compensation Attorney

1. Were your workplace injuries severe?

If your work accident left you significantly damaged, it may be in your best interests to hire a lawyer. You could face ongoing medical bills and may be unable to work for some time to come – both reasons to seek out the maximum amount of help you can get.

2. Are either you or your doctor uncertain your health will return to the level it was prior to the injury?

Workplace injuries can wreak havoc on your life, sometimes permanently. If you or your doctor are unsure that your health will come back after the accident, you should consider hiring a workers compensation lawyer to make certain you get the most favorable terms from your workers compensation claim.

3. Are you not receiving the benefits you believe you deserve after your injury?

The decisions made by your employer or the state are not always fair and do not always reflect the true nature or the injury. If you find that the benefits you receive are not enough to meet your needs or do not match up with the severity of your injury, a workers compensation attorney may be able to help you correct the situation.

4. Have you been denied benefits?

This can be one of the most frustrating outcomes of a workers compensation claim. You got hurt, you can’t work and you have a growing number of medical bills. Yet your claim is still denied. What are you supposed to do? This is one situation where hiring a lawyer is a necessity. The results you get will depend on the details of your case, but your chances of getting a better outcome go up considerably when you hire a professional to help you present your argument.

5. Do you find the workers compensation process confusing?

If this is the case, rest assured that you are not alone. The workers compensation process is complex and naturally confusing. It takes a trained professional to unravel all of the rules and regulations to see how the law applies to your particular case. Hiring an attorney ensures that your claim is handled correctly from square one.

The Benefits of hiring a Riverside Workers Compensation Lawyer

Not every workers compensation claim requires a lawyer. However, if you answer yes to any of the above questions, or would just like to know more about your rights in this process, talking to a workers compensation lawyer is probably the best decision you can make. This way you can make sure your rights are upheld and you get the best possible results from your claim.

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