This article originally appeared as a segment of an NBC Bay Area investigation into California's Workers' Compensation System. The original article can be read in it's entirety here: NBC Bay Area Workers Compensation Investigation Part III .
Injured workers face an uphill, long-odds battle if they want to appeal the denial of medical care through California’s workers’ compensation system, state data shows.
Since reforms made in 2013 under Senate Bill 863, injured workers can no longer appeal treatment denials in front of a judge. Now, the state contracts with a private, for-profit corporation that reviews appeals under a process called “Independent Medical Review.” The company pays anonymous doctors, who have never examined the patient in person, to make those decisions based on a standard set of guidelines.
Patients don’t stand much of a chance under the new system, the data shows. Between 2013 and 2015, injured workers contested almost 600,000 denials of medical treatment. Those denials were upheld nearly 90 percent of the time when reviewed on appeal by independent medical review doctors.
The UR/IMR system is biased against injured workers and their doctors. While proponents of the UR/IMR system would claim that IMR’s upholding 90 percent of the denials is evidence that most treatment requests were unnecessary, those who witness the results of the denials of treatment on a daily basis know differently. Medical professionals understand that the practice of medicine is an art that should not be reduced to arbitrary standards of “old” medicine. UR/IMR prevents the physician from treating his patient effectively.
The bizarre irony is that in a majority of instances, the cost of denial of treatment is more than the cost of the treatment denied. The big savings to employers and insurance companies is found in the area of denials of medications and treatment for the chronic pain patient and in the denials of surgical treatment and effective after-care.
Most physicians simply desire to treat their patients as effectively as possible. Most injured workers simply want effective treatment that will return them to their jobs as soon as possible. Under the UR/IMR system, frustrated physicians are looking elsewhere for patients to treat and undertreated injured workers are often unable to return to work, at all.
But employers benefit and insurance company profits are at record highs.
Read the original article here.
Donald Fraulob and Melissa C. Brown have been nominated for Sacramento Magazine’s list of “Top Lawyers” in the Sacramento region! A big CONGRATS to both of them. Make sure you pick up a copy of Sacramento Magazine when they publish the full list in their August edition.
As a mom with similarly situated friends and an attorney representing injured workers the topic of workers’ compensation and household employees inevitably comes up. You may be an employer wondering if you need workers’ compensation coverage for your nanny/babysitter or housecleaner. Or perhaps, you are a household employee who has suffered an injury and wants to know whether you can file a claim for workers’ compensation benefits.
Unfortunately, this isn’t a straight yes or no answer.
First, we look to the California Labor Code section 3351(d), which defines residential dwelling employees. Per the code,
“Except as provided in subdivision (h) of Section 3352, any person employed by the owner or occupant of a residential swelling whose duties are incidental to the ownership, maintenance, or use of the swelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant.”
We can also look to the Industrial Welfare Commission (IWC) which defines Household Occupations as: “All services related to the care of persons or maintenance of a private household or its premises by an employee of a private householder”. Examples include gardeners, house cleaners, tutors and companions.
California Department of Industrial Relations, Industrial Welfare Commission, Order No. 15-2001 defines “personal attendant” to include babysitters and “any person employed by a private householder or by any third party employer recognized in the healthcare industry to work in a private household, to supervise, feed or dress a child or person who by reason of advanced age, physical disability, mental deficiency needs supervision.” This would include your babysitters, nannies, and personal care attendants for elders or the disabled.
Ok, so after reading the above, you can determine whether you or the person you hired falls into the general category of “employee”. Now we need to determine whether you or your employee is excluded as an employee from Workers’ Compensation.
California Labor Code Section 3352(h) excludes from its definition of “employee” as follows:
“Any person defined in (d) of Section 3351 was employed by the employer to be held liable for less than 52 hours during the 90 calendar days immediately preceding the date of the injury for injuries, as defined in Section 5411… or who earned less than $100 in wages from the employer during the 90 calendar days immediately preceding the date of the injury for injuries, as defined in Section 5411 . . .”
Has the person worked 52 hours or more during the 90 days immediately prior to the date of injury, or for a cumulative trauma injury, during the 90 calendar days immediately preceding the date of last employment? If no, that person is not an employee.
Has the person earned less than $100 in wages from the employer during the 90 days immediately prior to the date of injury, or in the case of a cumulative trauma injury, during the 90 dates immediately preceding the date of last employment? If no, that person is not an employee.
If you answered “yes” to the above questions and are a household worker, it’s likely you qualify to as an employee and may file a workers’ compensation claim if you have been injured through work.
If you answered “yes” to the above questions and are an employer, first contact your homeowner’s or umbrella insurance carrier to determine whether you have existing coverage for domestic employees. If you do not, inquire about a “rider” policy. Or, you can purchase a freestanding policy through an insurance company or the State Compensation Insurance Fund.
DISCLAIMER: This post provides general information only and is not intended to serve as legal advice.
As the NPR and ProPublica’s series continues to reveal the raw deal that workers’ get if they are hurt on the job, OSHA director David Michaels weighs in: “If employers whose workers are being injured had to pay the true cost of these injuries, these employers would have real incentive to prevent the injuries from occurring…Instead, workers, their families and taxpayers are subsidizing these dangerous employers.” I couldn’t agree more. Although workers’ comp is a no fault system, lax safety practices and short cuts result in a significant number of injuries. If policy makers, legislators and regulators decided that safety was a priority and that prevention and regulatory enforcement was the best way to reduce costs, a sea of change in the reduction of human suffering would result.
–Melissa C. Brown
Read the full article from OSHA below and see the original article here:
OSHA Report Echoes ProPublica and NPR’s Workers’ Comp Findings
Separate investigations into changes in the workers’ compensation system nationwide found that cutbacks were hurting injured workers and their families.
by Michael Grabell
Nearly a year ago, ProPublica set out to investigate the extent of changes to America’s workers’ compensation system and the impact they were having on injured workers.
Around the same time, researchers at the federal Occupational Safety and Health Administration independently decided to do the same thing.
On Wednesday, to our surprise, we published our story and OSHA released its report. Both detailed a system decimated by state lawmakers across the country.
Our investigation, in partnership with NPR, found that since 2003, more than 30 stateshave cut workers’ comp benefits, created hurdles to getting medical care or made it harder to qualify. The changes have resulted in devastating consequences for some of the hundreds of thousands of workers who suffer serious injuries at work each year.
The reductions in benefits have been driven largely by big businesses and insurers, which cite out-of-control costs. But we found that businesses are paying the lowest rates for workers’ comp insurance since the late 1970s. The costs are being shifted to taxpayers, who shell out an estimated $30 billion a year in medical costs and lost wages not covered by workers’ comp.
OSHA’s report echoed several of ProPublica and NPR’s findings and tied workplace injuries to the national debate over income inequality. The agency, which investigates workplace accidents, said changes in workers’ comp programs have made it increasingly difficult for injured workers to get the benefits they’re entitled to.
The report noted that workers’ comp pays just 20 percent of the overall financial cost of workplace injuries and illnesses.
“If employers whose workers are being injured had to pay the true cost of these injuries, these employers would have real incentive to prevent the injuries from occurring,” OSHA director David Michaels said in an interview Thursday. “Instead, workers, their families and taxpayers are subsidizing these dangerous employers.”
OSHA decided to look into the issue, he said, after investigators witnessed workers and their families struggling to make ends meet after workplace accidents. In addition, several workers told OSHA during inspections that they were afraid they’d be fired if they filed workers’ comp claims for their injuries.
OSHA’s report pointed to two recent studies in the American Journal of Industrial Medicine that noted that more than half of hospital patients with work-related amputations in Massachusetts and one-third of those patients in California didn’t receive workers’ comp benefits.
Even with workers’ compensation benefits, studies show that injured workers’ incomes are, on average, almost $31,000 lower over 10 years than if they had not been injured, the report said.
The agency urged states to eliminate roadblocks that prevent injured workers from getting the medical care and adequate wage-replacement payments they need.
“It does appear that there is right now a race to the bottom. State workers’ compensation systems are competing to lower benefits and make it tougher for workers to get the benefits to which they’re entitled,” Michaels said. “We think it’s very important for states to ensure that workers who are injured and made sick on the job get full compensation.”
Is it illegal for insurance companies to hire private investigators to stakeout an injured person’s home? What about video recording their daily activities? Many of you may be shocked by the answer to both of those questions: no. Why not, you ask? Read the full article below.
Have you noticed a suspicious vehicle lurking in your neighborhood lately, or is there a stranger that seems to be everywhere you go? If you have an active workers’ compensation claim, then you may not be imaging things. More and more, we are seeing insurance companies willing to spend thousands of dollars to hire private investigators to conduct clandestine surveillance of an injured worker’s daily activities and documenting these activities with video cameras. This type of surveillance often comes as a shock to our clients.
When these situations arise, the question we hear most often is, “Can they do that? Is this legal?” The answer is yes. Private investigators may photograph or video people in their private residences so long as they are clearly visible to the general public and there is no expectation of privacy. They can also conduct a full background investigation and obtain information about any other claims you made for personal injuries or if you have ever been charged with a crime.
While there are honest private investigators in the field, there are also those who will cheat. One investigator deflated an injured worker’s tire and then videotaped the person “working” to fix the flat tire. Another investigator reported talking on the phone to someone who told him that an injured worker was working while also receiving workers’ compensation benefits. A follow up done by our firm proved that the person with whom the investigator claimed to have talked has a serious hearing impairment and could not use the telephone.
Injured workers need to be aware that surveillance can happen in any case. It has become part of the workers’ compensation system. By the way, if you do notice a suspicious car parked near your home, call the police.
This shared post comes from Leonard Jernigan.