Workers' compensation for victims of criminal activity at work

WORKERS INJURED AS A RESULT OF CRIMINAL ACTIVITY: THE CALIFORNIA VICTIM COMPENSATION PROGRAM (CalVCP) AND WORKERS’ COMPENSATION

The State of California has a special program called the California Victim Compensation Program to assist victims of crime. This program is administered through the California Victim Compensation and Government Claims Board. The program allows individuals who were victims of crime to obtain benefits to compensate them from the effects of them being subjected to such criminal acts.

This article will discuss the CalVCP how it interacts with California Workers’ Compensation Law. It will discuss the applicable Labor Code Section as well as the Caselaw concerning VCGCB benefits and workers’ compensation. It will discuss the obligations for the recipient of the benefits to pay back the Compensation Program in the event of a workers’ compensation recovery.

How Can Criminal Acts Work Be Work-Related?

Frequently, there are criminal acts that occur in the workplace. These criminal acts, if they cause physical or emotional injury, may give rise to a workers’ compensation injury claim. Likewise, the criminal act may trigger eligibility to collect benefits from the California Victim Compensation Program.

Criminal Acts in the workplace can include anything from a bank robbery to a delivery person being struck by a drunk driver. In these circumstances, Bank Employees or the Delivery Driver may be eligible to seek Victims Compensation Benefits from the State of California. Likewise, they are also eligible to pursue workers’ compensation benefits.

What Is the California Victim Compensation Board Program?

The Victim Compensation and Government Claims Board administers the California Victim Compensation Program (CalVCP.) The program provides forms of compensation for victims of crime. The crimes, which may eligible for the program, can include domestic violence, child abuse, assault, sexual assault, elder abuse, molestation, homicide, robbery, hate crimes, drunk driving, vehicular manslaughter, human trafficking, stalking and online harassment.

Who is Eligible to Receive Benefits for the CalVCP?

To be eligible for compensation, a person must be a victim of a qualifying crime involving physical injury, threat of physical injury or death. For certain crimes, an emotional injury alone is enough to qualify. Certain family members and loved ones who suffer an economic loss from an injury to, or death of, a victim of a crime may also be eligible for compensation.

Are There Limits to What the CalVCP can Pay Out For?

Yes. There are limits as to what CalVCP can pay. CalVCB is to be considered as the payer of last resort. Other reimbursement and recovery sources must be applied to all expenses first.

Examples of other sources of reimbursement and recovery include medical insurance, disability insurance, employer benefits and civil suits. This also includes workers’ compensation claim and the resulting benefits.

There are some limitations. CalVCB cannot pay for any expense not related to the crime, including expenses for lost, stolen or damaged property.

Further limitations include that CalVCB cannot pay any expenses incurred while a person is on parole, probation or post-release community supervision for a violent felony; incarcerated or required to register as a sex offender. This does not affect an application’s eligibility. It instead stops payment for expenses that are incurred during incarceration and felon or registered sex offender status.

What Type of Benefits Can the Program Provide?

The Victims Compensation Board covers a wide variety of items. There are, however, limits to how much that can be paid out.

Examples of items that can be covered are crime scene clean up, funeral and burial expenses, home or vehicle modifications for victims who became disabled, income loss, medical and dental treatment, mental health services, relocation, and residential security.

The following is a more detailed explanation of benefits that can be provided that are workers’ compensation-related:

Medical and Medical Related benefits can include, but is not limited to: Doctor services, hospital, surgery, prescriptions Eyeglasses, hearing aids, dentures or prosthetic devices Ambulance, dental, chiropractic, etc. Verification from the crime report or medical records that medical services were required and/or medical/medically related devices were taken, lost, damaged or destroyed during the commission of a crime, or the use of which became necessary as a direct result of the crime.

Income Loss benefits can be provided with evidence of income loss and a statement of disability from a medical or mental health service provider or evidence of income loss when a victim has to take unpaid time off work for medical and/or mental health appointments

Funeral or Burial Benefits are available when a victim dies as a direct result of the qualifying crime, the funeral and burial expenses may be reimbursed. For additional information, please see: www.victims.ca.gov/providers/funeral.aspx

Vehicle Modification Purchase requires verification from a physician that the modification or purchase expense is medically necessary.

Service Dog Benefits are provided to disabled victim or applicant whose guide, signal or service dog was injured or killed due to a qualifying crime on or after January 1, 2015.

Job Retaining or Similar Employment Services are provided with the provision that the victim must first apply for assistance from the California Department of Rehabilitation and obtain an evaluation or assessment.

Mental Health Treatment can include treatment which varies with respect to the individual involved.

If I Have A Workers’ Compensation Case and Collect Money from the California Victim of Crime Program, Will The Victims of Crime Program Want Money Back from Me?

Yes. The California Victim of Crime Program will file a Lien Against any Settlement, Award or Judgement that occurs at the Workers’ Compensation Appeals Board.

The VCGCB is entitled to be repaid when an Injured Worker receives an award, judgement or settlement. The amount of the repayment is not to exceed the amount of compensation granted by the VCGCB.

If I Have A Workers’ Compensation Claim, Is It Important that I Notify the VCGCB?

Yes. Absolutely. It is very important, if you have received Victims of Crime Funds, that you (and your attorney) notify the VCGCB so that they can have a reasonable opportunity to perfect their lien. Failure to do so may have serious implications. For attorneys, it can be considered as misconduct.

Is This Any Difference of Victims of Crime Benefits from Workers’ Compensation?

Yes. There are some differences in workers’ compensation benefits and Victims Compensation benefits. Workers’ Compensation Insurance would not cover crime scene clean up, income loss [workers’ compensation does not pay out wage loss and instead pays disability payments], relocation and residential security services.

Are There Expenses that are Not Paid by Victims of Crime?

Yes. The CalVCB is considered as a payer of last resort. Therefore, if the individual has other sources of reimbursement or recovery, those must be applied first. One of those sources of reimbursement can include a workers’ compensation claim. Other examples include medical insurance, disability insurance, employer benefits and civil lawsuits.

How Does the VCGCB Interact with Workers’ Compensation?

With respect to any person applying for the VCGCB benefits, the Board must be notified with respect to the workers’ compensation claim information. All forms of workers’ compensation benefits may be subject to repayment and or lien including but not limited to total temporary disability payments, permanent disability payments, and the proceeds of a compromise and release.

Why Should an Injured Worker Pursue Victims of Crime Program Benefits?

Sometimes, Injured Workers do not immediately received workers’ compensation benefits from their workers’ compensation carrier. Claims may be either denied or delayed. As a result, no benefits may be paid. As a result, applying for CalVCB may be a source of benefits while the workers’ compensation claim is pending.

What is the Authority for the Program’s Right to Reimbursement?

California Labor Code Section 4903 provides that “[t]he appeals board may determine, and allow as liens against any sum to be paid as compensation, any amount determined as hereinafter set forth in subdivisions (a) through (i). If more than one lien is allowed, the appeals board may determine the priorities, if any, between the liens allowed. The liens that may be allowed hereunder are as follows: (i) The amount of indemnification granted by the California Victims of Crime Program pursuant to Article 1 (commencing with Section 13959) of Chapter 5 of Part 4 of Division 3 of Title 2 of the Government Code.”

Is there Caselaw Concerning Reimbursement?

In Burnsed v. State Bd. of Control (1987), an Injured Worker, who already received workers’ compensation benefits in the form of temporary and permanent disability payments, was not allowed to receive funds from the Victims of Crime Program. In the case, Burnsed had already received temporary disability and permanent disability payments in excess of his out-of-pocket expenses.

Specifically with Respect to Workers’ Compensation Claims, What Does the VCGCB Require?

The VCGCB requires that they be provided the notice of claim related to the same incident. All forms of compensation may be subject to repayment and/or a lien. This includes but is not limited to temporary disability, permanent disability and the proceeds from a Compromise and Release. The VCGCB will assert a lien against the Workers’ Compensation settlement.

Can the Workers’ Compensation Appeals Board Reduce or Waiver a VCGCB Lien?

No. There are no provisions within the Labor Code allows for the Workers’ Compensation Appeals Board to either waive or reduce a VCGCB lien. The lien is considered as a statutory non-medical lien. All benefits are provided by CalVCP are recoverable by the VCGCB pursuant to the Labor Code for the amount of the indemnification granted by the VCGCB. The authority being Labor Code Section 4903(i).

Can the VCGCB Reduce Its Lien?

Yes. The VCGCB has the authority to reduce its lien. This can be done if it is in the best interest of the State or to avoid undue hardship to the victim.

Also, if the notice of settlement is received within 30 days, the VCGCB may also be able to reduce the lien by up to 25 percent. Therefore, notifying the VCGCB forthwith is very important.

If I Collect Money from the California Victim of Crime Program, Will They Want Money Back from Me?

Yes. The California Victim of Crime Program will file a Lien Against any Settlement, Award or Judgement that occurs at the Workers’ Compensation Appeals Board.

The VCGCB is entitled to be repaid when an Injured Worker receives an award, judgement or settlement. The amount of the repayment is not to exceed the amount of compensation granted by the VCGCB.

When Should the VCGCB Be Notified of a Settlement?

There is a requirement to notify the VCGCB Revenue Recovery Section within 30 days of filing the action. Therefore, if you are filing an Application at the Workers’ Compensation Appeals Board, you should therefore notify the VCGCB within 30 days.

If there is a settlement of the claim and the obligation to repay the VCGCB is disregarded, then the monies will be considered as an overpayment. The VCGCB will have the California Franchise Tax Board to recover the money through garnishment and will pursue all legal remedies available.

If I Have A Workers’ Compensation Claim, Is It Important that I Notify the VCGCB?

Yes. Absolutely. It is very important, if you have received Victims of Crime Funds, that you (and your attorney) notify the VCGCB so that they can have a reasonable opportunity to perfect their lien. Failure to do so may have serious implications. For attorneys, it can be considered as misconduct.

If I am Interested in Getting Benefits from the Victims of Crime Program, What Should I Do?

The first thing to do is to go on the CalVCB Website

The Website contains valuable information for you to apply for benefits. Further, there are individuals associated with the program that may be able to provide some assistance.

Where Can I Get Legal Advice in California?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 27 years. Contact us today for more information.

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