State Data Shows Injured Workers Face Uphill Battle During Workers’ Comp Appeals Process

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. ​

Don and Melissa nominated for Sacramento “Top Lawyers”

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. DM

The State of Medical Care in California’s Workers’ Compensation System

Utilization ReviewWhen you’re injured at work, you expect that your employer’s insurance carrier will dutifully provide you with proper medical treatment for your injury. After all, future medical care is one of the “benefits” injured workers are entitled to in California. Denial of medical treatment is the number one frustration we hear from our clients on a daily basis.

What injured workers quickly discover is that their medical treatment is strictly controlled by the insurance carrier and their medical fate is in the hands of a doctor who has never treated them and may not even have their complete medical records.  This process is called Utilization Review (UR). Under UR an outside physician gets to decide whether or not the insurance company should authorize the medical treatment prescribed by your primary treating physician. This doctor doesn’t even have to be licensed in California.

If the medical treatment prescribed by your physician is denied, your only recourse is to appeal the decision to an Independent Medical Reviewed (IMR). In California, MAXIMUS is the company contracted to conduct IMR reviews. Like UR doctors, the IMR doctor deciding your fate, has never met you or treated you and does not need to be licensed in California. In fact, their identity is protected. If your medical treatment is denied by UR, your chances of IMR overturning the decision are not good. California Workers’ Compensation Institute, an insurance research group, found that 91% of IMR decisions uphold the UR denial. If the treatment is denied by IMR, absent a change in circumstances, the denial will be in effect for one year.

While an injured worker has the right to appeal an IMR determination to the Workers’ Compensation Appeals Board, the only legal bases on which to appeal are fraud, conflict of interest, or mistake of fact. However, even if your appeal is successful the WCAB still cannot overturn the IMR doctor’s decision. If an appeal is granted, the remedy is referral to a different IMR for another review. Yes, you read that right, your award is to go through the IMR process again!

Many injured workers end up seeking treatment for their work related injuries through private insurance, Medicare or Medi-Cal. A study by J. Paul Leigh, a health economist at the University of California, Davis, estimated that only 1/3 of necessary medical treatment and lost wages is being paid for by workers’ compensation insurers.

The lack of adequate medical care for injured workers today is the result of Senate Bill 863, which was passed on August 1, 2012 and signed into law by Governor Brown on September 18, 2012. This law was the result of lobbying by big businesses and insurance companies, who have influence over the State Legislature and the Governor of California. We remind our clients that you also have a political voice. We recommend you go to Voters Injured at Work (www.viaw.org) for information on how to become involved with fixing this broken system.

To read more about the dismal state of medical treatment for injured workers all over America I encourage you to read Insult to Injury by Michael Grabell at https://www.propublica.org/article/the-demolition-of-workers-compensation.

Car Accidents and Workers’ Compensation

According to the California Highway Patrol, 223,128 people were injured in motor vehicle accidents in California for the year 2013. If you were injured in a motor vehicle accident you probably have already thought to hire a personal injury attorney. However, if the driving or presence in the vehicle was related to your work, you may also be entitled to workers’ compensation benefits.

How do you know if your involvement in the vehicle accident is “related” to your work? The obvious example is a truck or bus driver who is involved in an accident when driving their delivery route. There are additional less obvious situations. For example:

  • Traveling sales persons
  • Doing an errand for your company or boss
  • Driving from the office to another location for work related reasons such as visiting a client, attending court, attending a mandatory work function
  • Making deliveries for the business
  • Your employer pays you for your travel time between your home and office.

I had a case where an employee who did work from home was traveling from the office to her home and suffered an injury in a car accident on the way from the office home. She received workers’ compensation benefits because she had work files in her car and was planning on doing work from home that evening. Generally, if you sustain injuries in a car accident that occurs on your way to or from work, this falls under the “coming and going” exception and you would not qualify for benefits. But as you can see from my example, there are always exceptions.

Even if you file a claim for workers’ compensation benefits, you still have the right to sue the person who is at fault in the accident. The opposite is true as well. If you have both a workers’ compensation case and civil lawsuit, we call the civil lawsuit the “third-party case”. If you receive a settlement or award in your civil lawsuit, the insurance carrier in the workers’ compensation case is entitled to a take a “credit” for the money you receive in your civil lawsuit. For example, if you receive $20,000.00 in your civil lawsuit from the at-fault party and you receive an award of $50,000.00 in the workers’ compensation claim, the workers’ compensation insurance carrier gets to take a “credit” for the $20,000.00 you already received in the civil lawsuit and only has to pay you $30,000.00. This is done to avoid double collecting.

There are benefits to filing both a claim for workers’ compensation benefits and a civil claim against the other driver and their insurance company. Workers’ compensation does not cover damages such as the loss of your vehicle or pain and suffering. In workers’ compensation you receive medical treatment, temporary disability (partial lost wages due to the injury) and permanent disability. Also, workers’ compensation is a no-fault system, unlike the civil system where you must prove that the other driver caused the accident. Even if you are found to be at fault in the vehicle accident you are likely entitled to workers’ compensation benefits.

Your workers’ compensation or personal injury attorney should be able to refer you to another attorney who specializes in the other field. Some firms handle both types of cases or have a good working relationship with other attorneys who do specialize in related areas of law.

DISCLAIMER: This post provides general information only and is not intended to serve as legal advice.

Is a nanny entitled to workers’ compensation benefits?

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.

Nanny Workers CompensationUnfortunately, 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.

 

 

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