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Common Workers Comp Injuries

When an Injury Occurs

When an employer learns that a job-related injury has occurred, the employer has multiple duties.
1. Provide emergency medical care when necessary
. An employee injured on the job has the right to "medical, surgical, chiropractic and hospital treatment, including nursing, medications, medical and surgical supplies, crutches and apparatus, including artificial member..." Included within the scope of this statute are physical therapy and diagnostic testing.
. To meet the obligation to furnish medical care, the employer or insurance carrier has the right to designate the physician who will provide medical treatment for the first 30 days after an injury is reported, where the employee has not furnished the employer preinjury written notice of the employee's selection of a personal physician, or where the employee's personal physician refuses to provide medical treatment because a different medical specialty is required.
. The employer, upon employee request within the 30-day period, must allow one change in physician, but still maintains control over that choice. The employee may select his/her own treating physician upon the expiration of the 30-day period.
2. Furnish to the employee the "Employee's Claim Form for Workers' Compensation Benefits" (DWC Form 1). An employer must furnish this claim form if the injury results in medical treatment beyond "first aid" or in any lost time beyond the date of injury.
. Failure on the part of the employee to complete and return the claim form to the employer does not relieve the employer of the obligation to report the injury and its surrounding circumstances to the insurance company as soon as possible; nor does this mean that the insurance company can ignore the provisions governing the timely payment of benefits if a job related injury has occurred.



. Under LC §5405, an employee must file a workers' compensation claim within one year of the date of injury. Galloway v. WCAB, 98 D.A.R. 4680
. A California court of appeals recently held that an injured worker who was not informed of his workers' compensation rights by his employer could file a claim past the one-year statute of limitations. In this case, the employer failed to give written notice to the employee of his workers' compensation benefits after it learned of the injury.
3. Conduct an investigation into the surrounding circumstances and document any findings. Information obtained through this investigation often can be used to prevent similar injuries in the future.
. Such investigations should include interviews with co-workers and other witnesses, and the securing of any circumstantial evidence including machinery, products, ladders and hand tools that may have been involved in the injury.
4. File the "Employer's First Report of Occupational Injury or Illness" (DLSR Form 5020) with the insurance company. This form should be filed as soon as possible but not later than three days after the injury occurs if the employee misses more than one day of work, requires
hospitalization of more than 24 hours, or more than first aid is required.
5. Communicate with the employee, focusing on his/her recovery from the injury and return to work. The employee should be informed of benefits he/she may be eligible for and when the benefit or services will be furnished. In addition, the employee should be asked about relevant circumstances relating to the injury, including the names of witnesses, and for any suggestions on how the injury could have been prevented.
6. Take corrective action to eliminate any workplace hazards that may
have been discovered as a result of the injury or the investigation.

When an Injury Is Disabling

A disabled worker is entitled to receive a benefit check within 14 days after the date of injury and twice a month thereafter. Temporary disability (TD) benefits are not paid for the first 3 days an employee has missed work unless
the employee is hospitalized as an "in-patient" for medical treatment, or if the employee's disability continues for more than 14 calendar days as a result of the injury.
Employers must ensure that the employee is receiving benefit payments in a timely manner and is kept informed of his/her status. Make certain your insurance carrier has mailed the first disability payment or has given the employee written notice of his/her benefit status. Also make sure the employee knows of the company's interest in his/her return to work. This is known as an Injury Management Program.
Additionally, contact on the disabled worker periodically to assure that he/she is satisfied with the medical treatment being provided. An employee who is not receiving benefits for a legitimate job-related injury, or is unhappy with the medical care is more likely to obtain an attorney to litigate his claim.



What's the difference between modified duty and alternative work?
. Both modified duty and alternative work qualify as a substitute for
vocational rehabilitation (voc rehab).
. Modified work usually pays the same as the employee's regular job
. Alternative work can pay 15% less
. What qualifies as modified or alternative work according to the
Division of Workers' Compensation?
Modified Work ('Transitional Assignment')
This is when an injured employee's regular job is modified to accommodate his/her job restrictions, e.g.:
. Altering or excluding certain tasks
. Reducing the time spent on certain tasks
. A customized workstation
. Shifting the work location
. Providing special tools
. A job that lasts at least 12 months; if it is to replace Voc Rehab.
Alternative Work
. Is a different job
. It is not modified work
. Is where the employee is able to perform the essential functions
. Is compatible with the employee's work restrictions
. Is a job that lasts a minimum of 12 months
. Is a position that pays at least 850/0 of what the employee was earning
at the time of the injury
. Must be a reasonable commute from where the employee resided on
the DOL



Vocational Rehabilitation Services
A QIW is eligible for vocational rehabilitation services if both of the following conditions are met:
1. A physician determines that the effects of the injury permanently preclude the employee from engaging in his/her "usual and customary" occupation, or resuming the position in which he/she was engaged at the time of injury;
2. The employee can reasonably be expected to return to "suitable gainful employment" through the provision of vocational rehabilitation services, based upon the" decision of a vocational rehabilitation professional.
Employers must offer vocational rehabilitation services if an employee is qualified to participate in a rehab program approved by the state. There is, however, no legal obligation on the part of the qualified injured worker to accept these services.
Vocational rehabilitation services include the following:
. Counseling;
. Job analysis;
. Modified or alternative work with the same or a different employer;
. Retraining, including on-the-job and formal schooling; and
. Job placement assistance.



LC §132(a)
Prohibitions Against Termination and
Necessity for Reinstatement and Benefits Continuation
1. Employers are expressly prohibited from discharging, threatening or discriminating in any way against an employee because he/she has received an award from, has filed or even intends to file a workers' compensation claim.
2. If found to be in violation of this provision, an employer may be subjected to heavy financial penalties, and may be required to reinstate the employee and reimburse him/her for lost benefits and wages.
3. In a LC §132(a) case, the employer has the burden of producing evidence to show that the decision not to reinstate the employee was based upon legitimate "business necessity."
4. The California Supreme Court has stated that this provision of the Labor Code" does not compel an employer to ignore the realities of doing business by re-employing unqualified employees or employees for whom positions are no longer available." Judson Steel Corp. v. WCAB, 22 Cal. 3d 658,667(1978)
5. Employers are prohibited from engaging in conduct that is detrimental to the employee unless that conduct "is necessitated by the realities of doing business." Smith v. WCAB, 152 Cal. App. 3d 1104, 1109 (1984)
6. The courts have further stated "it is neither realistic nor reasonable to require that an employer create a class of absentee employees... by keeping positions open for an indefinite period of time on the possibility that the former occupants may recover from an industrial injury. "
7. Do not take any adverse action against an employee who is on workers' compensation, unless you have substantial written documentation of job-related reasons for discharging, demoting or transferring that employee.



8. In addition, if the employee is a qualified person with a disability under the ADA 29 V.S.C. 101(2) or California's FEHA, Gov't Code Section 12940, additional rights to reinstatement may exist if the employee can perform the" essential functions" of a position with or without "reasonable accommodation," unless that reinstatement would cause "undue hardship" or constitute a "direct threat" to the health and safety of co-workers or the employer.
9. Employees who are disabled and cannot perform the essential functions of their job under the standards set forth in the Americans with Disabilities Act may be entitled to FI\1LA/CFRA medical leave. Eligible employees are also entitled to continued payment of the employer's share of any pre-existing health insurance benefits during that 12-week period. But employers are discouraged from discontinuing coverage at the 12-week point. See #4 above.
10. Must employers continue paying benefits when an employee is
temporarily disabled under the workers' compensation system?
The California Supreme Court has found that an employer's decision to deny an employee his/her accrued seniority was discrimination against the employee due to his/her workers' compensation claim, despite the company's showing that the employee was treated no differently in the seniority area than other employees with non-industrial injuries. Denial of paid benefits during an employee's WC absence could bring about legal consequences, including financial penalties.
Workers' Comp Overrides COBRA:
Heretofore, employers would follow internal policies that cut health benefits after a certain period (usually 90 days), at which time COBRA notices would go out on the basis of "reduced hours" - a qualifying event.
Recent court cases * have ruled that termination of health benefits of an injured worker is a violation of LC132a.
Consequently, employers may be held liable should they terminate group health coverage too soon. This has been interpreted to mean that benefits terminated before the employer can safely assume that the employee would not be returning to work could bring a 132a charge.



The courts reasoning being that any sooner than one year of the TTD period could be viewed as discriminatory. Only then should the employer send the COBRA notice, but not before consulting with legal counsel.
Note: Courts tend to more lenient with employers when COBRA notices are not sent out before 18-24 months of TTD.
* Schick Moving Systems v. WCAB (Aguilera) Maraviov v. Tenet Health Systems Hospital Concord Mechanical, mc v. WCAB (Seaman) Zare v. WCAB
An employer violates California Labor Code Section 132(a) if it discharges, threatens to discharge, or in any way discriminates against an employee because he/she had filed or made known an intention of filing a workers' comp claim.
LC § 132(a) is construed liberally, and it does not require that the employer intentionally discriminated against an injured worker. The key question is whether the employer's action caused detriment to the employee.
Employers found guilty of violating LC § 132(a), may entitle the employee to additional compensation and reinstatement with back pay.
The elimination of employee benefits is grounds for such a claim.
Health Coverage
In a recent case, an employer had a policy that terminated health insurance for employees who had been off work for 90 days. When an employee sustained an on-the-job injury and was off work for more than 90 days, the company terminated the coverage accordingly, and offered the employee COBRA rights. The workers' compensation judge found that the employer had violated LC § 132(a) by terminating the employee's health coverage.
In response to the employer's petition for review, the Workers' Compensation Appeals Board (WCAB) noted that COBRA "simply gives an employee the right to continue health insurance coverage at his/her own expense in the event that the employer stops providing it. COBRA does not authorize employers to discriminate against injured workers."


In another case involving termination of benefits, the employer vigorously asserted a defense that the termination was necessitated by the realities of doing business: It was a financial burden for the employer to continue to pay benefits for workers on leaves of absence.
In that case, the WCAB rejected the defense, referring to cases in which the termination of benefits after four months and 12 months were found to violate LC § 132(a). The WCAB did distinguish, however, cases in which termination of benefits were justified when the employee has been absent for
18 months and when it appeared the employee would never come back to work.
Showing Business Necessity
In Zare v. WCAB, an employer prevailed on the business realities defense, and the WCAB ruled that the employer had not violated LC § 132(a) by removing an injured worker from the group health insurance plan.
The employer showed a business necessity for terminating the employee after he did not return to work because the employer ran a small moving company and needed all employees to be able to work because of scheduling requirements.
Ultimately, employers should consult an experienced labor law attorney before terminating a workers' comp claimant's health care benefits or before taking any action that might be viewed as adverse.
When it appears the employee is not going to return to work, an employer usually is on safe ground in eliminating the benefits, but it is safer yet to consult counsel.



Stress-Caused Injuries
In order to receive workers' compensation benefits for a work-related stress (psychiatric) injury, an employee must show that the work -related stress was
"predominant as to all causes (of the injury) combined." This essentially means that more than half of the employee's stress must come from his/her work, rather than from problems with the employee's family, health or other concerns.
Psychiatric injuries must meet all the following criteria in order to be compensable:
. Diagnosis as a mental disorder;
. Such diagnosis based on accepted and published terminology and
criteria of the American Psychiatric Association;
. A determination that the mental disorder results in disability or
requires medical treatment;
. Proof that "actual events of employment were predominant as to all causes combined," except in situations involving psychiatric injury as a result of a significant violent act, where working conditions must account for at least 35% of the sources of causation.
LC §3208.3
To defend against "stress" claims, an employer can raise two affirmative defenses:
1. The "passive stage" defense - the employee's duties or his/her work environment merely provided a "passive stage" for the non-industrial mental or emotional condition to become disabling; and
2. The "after-the-fact rationalization" defense - the employee's work environment was an "after-the-fact rationalization" for a mental disorder caused by non-industrial factors.



There are three additional statutory defenses justifying denial of compensation for psychiatric injuries:
1. Mental stress claims are not compensable unless the employee has been employed by the employer for at least six months, except for mental or emotional stresses caused by a "sudden and extraordinary" condition; Insurance Code Sections 11745, 11747, 11748; LC §3208.3
2. Injuries substantially caused by lawful, non-discriminatory, good faith
personnel actions are not compensable;
3. Psychiatric claims filed after notice of termination or layoff generally
are not compensable. LC §3208.3
Privacy Law for Workers' Compensation Records
Individually identifiable worker's compensation information maintained by the Division of Workers' Compensation must be kept private subject to certain exceptions. For employers, the most important part of this new law is the provision that no person who has received individually identifiable workers' compensation information as a result of one of the privacy exceptions may provide that information to any person who is not entitled to it. Employers should be extremely cautious about what workers' compensation information about individual employees is provided to outside parties.
Legal counsel therefore should be consulted before disclosing individually identifiable workers' compensation information. LC §138.7

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