WHY ARE WORK INJURIES NOT REPORTED?: WORK INJURY CLAIMS AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

“To File or Not To File? That is the Question”

It is common knowledge that there are many work-related injuries that are not reported.   The lack of reporting denies the Injured Worker the opportunity to claim workers’ compensation benefits which may include disability benefits, medical care, and vocational rehabilitation benefits.

This article will discuss why both Employees and Employers don’t report work injuries claims. This article will also discuss whether there are times in which a claim should not be filed.

Why Is the Reporting of Work Injuries Important?

Pursuant to Labor Code Section 5402, a reporting of an injury triggers the obligation of the carrier to investigate liability for the claim and make a determination within 90 days.   Further, if the claim is not denied, a presumption of injury can apply.   Further, during the period of delay, the Applicant is entitled to receive medical care paid for by the carrier up to $10,000.00.

How Significant is Under-Reporting?

In the study, “[a] questionnaire and interview survey was administered to 110 workers performing similar tasks and several managers, health, and safety personnel at each of three industrial facilities. Although less than 5% of workers had officially reported a work-related injury or illness during the past year, over 85% experienced work-related symptoms, 50% had persistent work-related problems, and 30% reported either lost time from work or work restrictions because of their ailment. Workers described several reasons for not reporting their injuries,” . Under-reporting of work-related disorders in the workplace: a case study and review of the literature Pransy, Snyder, Dembe & Himmestein Pages 171-182 | Published online: 06 Dec 2010 https://doi.org/10.1080/001401399185874.

Note: In the study, significantly more Workers may have viable claims than those who report injuries.

Why Do Employees Under-Report Their Work-Related Injuries?

In a recent article, Employees reasons for not reporting injuries was discussed. Under-reporting of work-related disorders in the workplace: a case study and review of the literature Pransy, Snyder, Dembe & Himmestein Pages 171-182 | Published online: 06 Dec 2010 https://doi.org/10.1080/001401399185874. The reasons for the under-reporting were as follows: including fear of reprisal, a belief that pain was an ordinary consequence of work activity or ageing, lack of management responsiveness after prior reports, and a desire not to lose their usual job.

Fear of Reprisal: Note: Injured Workers are afraid that their Employers or Co-Workers can act in a negative fashion towards them if they report an injury.   Injured Workers are afraid that their pay, benefits, and work privileges and rights will be impacted.   Co-Workers can also be adversarial towards the Injured Worker if they are implicated in the injury claim. For example, they might be the cause of the injury claim as they may have stressed out or injured the worker.  Also, the Co-Workers may be a witness to the injury. The Co-Workers may not be happy that they are brought into the claim and have to make a statement against their Employer.   Note: Labor Code Section 132a protects Injured Workers and Employee Witnesses to claims.

A Belief that Pain was an Ordinary Consequence of Work Activity or Ageing: Note: Individuals with limited knowledge of medicine may not understand that certain medical conditions may be work-related.   This may be compounded by the fact that the Worker may not have sought treatment or medical care to be diagnosed with a condition.

Lack of Management Responsiveness After Prior Reports Note: Many times, injuries are reported and managers do nothing.  At that point, an Injured Worker just gives up.

 Desire Not to Lose Their Job Note: Certain Work Injury claims can impact one’s ability to work. Medical treatment or reporting may generate work restrictions that would preclude them from performing their job.   Also, there is the fear that they will be terminated for filing a claim.  Note: Labor Code Section 132a protects Workers against wrongful termination for reporting of a claim.

One reason not mentioned in the survey was

Worker not aware of their Rights to Claim Work Injury Note: Many workers are not aware of their workers’ compensation rights. Also, there are some injuries can be work-related that an Injured Worker would not know that they are work-related.

Why Do Employer’s Under Report Employees’ Work-Related Injuries?

In the article, it noted that “interviews with management representatives revealed administrative and other barriers to reporting, stemming from their desire to attain a goal of no reported injuries, and misconceptions about requirements for recordability.” Supra.

Desire to Attain a Goal of No Reported Injuries Note: Workers’ Compensation claims cost Employers money due to increased premiums.   For self-insured Employees,  there can be increased reserves because of claims.   In sum, work injuries cost Employers money.

Misconceptions about Requirements for Recordability Note: some Managers or Leads may not understand that what a work injury is and therefore not offer paperwork to the Injured Worker to file a claim.

Should an Injured Worker Report a Claim?

One should take thoughtful consideration when deciding whether to filing a claim.   They should think about whether it is worth filing the claim.  They should think about the implications in the workplace, and they should think about whether there is a medical/legal basis for filing the claim.  Consultation with an attorney is recommended to make the determination.   Further, a medical consultation might be of import as to whether there is industrial causation of the medical problem.

What If I Need Legal Advice?

If you would like a free consultation concerning any workers’ compensation case, 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 28 years.

THE CONTROLLED SUBSTANCE UTILIZATION REVIEW AND EVALUATION SYSTEM (CURES) AND WORKERS’ COMPENSATION: INJURED WORKERS, PRESCRIPTION DRUGS AND WORK INJURY TREATMENT: WHAT YOU NEED TO KNOW

Frequently, Injured Workers’ Medical Reports have the word “CURES” contained within it. This article will discuss what “CURES” means and the significance it has with respect to an Injured Workers’ claim and their access to treatment.

What is CURES?

The Controlled Substance Utilization Review and Evaluation System (CURES) “is a database of Schedule II, III and IV controlled substance prescriptions dispensed in California serving the public health, regulatory oversight agencies, and law enforcement. CURES 2.0 is committed to the reduction of prescription drug abuse and diversion without affecting legitimate medical practice or patient care.” Office of Attorney General, State of California.

In sum, Patients who are prescribed “controlled substances” will be tracked in a database.

What are Controlled Substances?

Per the United States Drug Enforcement Agency (DEA), “Drugs, substances, and certain chemicals used to make drugs are classified into five (5) distinct categories or schedules depending upon the drug’s acceptable medical use and the drug’s abuse or dependency potential.” For an alphabetical list of controlled substances, here is the link: https://www.deadiversion.usdoj.gov/schedules/orangebook/c_cs_alpha.pdf

What Are Schedule II Drugs? 

Per the DEA, “Schedule II drugs, substances, or chemicals are defined as drugs with a high potential for abuse, with use potentially leading to severe psychological or physical dependence. These drugs are also considered dangerous. Some examples of Schedule II drugs are: Combination products with less than 15 milligrams of hydrocodone per dosage unit (Vicodin), cocaine, methamphetamine, methadone, hydromorphone (Dilaudid), meperidine (Demerol), oxycodone (OxyContin), fentanyl, Dexedrine, Adderall, and Ritalin.”[emphasis added]

What Are Schedule III Drugs? 

Per the DEA, “Schedule III drugs, substances, or chemicals are defined as drugs with a moderate to low potential for physical and psychological dependence. Schedule III drugs abuse potential is less than Schedule I and Schedule II drugs but more than Schedule IV. Some examples of Schedule III drugs are: Products containing less than 90 milligrams of codeine per dosage unit (Tylenol with codeine), ketamine, anabolic steroids, testosterone.” [emphasis added]

What Are Schedule IV Drugs? 

Per the DEA, “Schedule IV drugs, substances, or chemicals are defined as drugs with a low potential for abuse and low risk of dependence. Some examples of Schedule IV drugs are: Xanax, Soma, Darvon, Darvocet, Valium, Ativan, Talwin, Ambien, Tramadol.” [emphasis added]

Who Has Access To CURES? 

According to the State of California, “CURES 2.0 is limited to licensed prescribers and licensed pharmacists strictly for patients in their direct care; and regulatory board staff and law enforcement personnel for official oversight or investigatory purposes.” Office of Attorney General, State of California.

What Does This Mean to Injured Workers? 

During your treatment for your industrial injury, your doctors may prescribe controlled substances that are subject to the CURES laws. This means that your prescriptions will be monitored with respect to drug abuse and diversion. Drug abuse applies to misuse by the individual patient. Diversion applies if the drugs prescribed are being distributed by the patient to other individuals. In sum, if your doctor is complying with CURES, your prescriptions, that are controlled substances with the reporting requirements, are being monitored.

Further, your medical provider may search CURES to see what medications you are taking. This allows them to make appropriate prescriptions in compliance with the mandate concerning drug substance abuse and drug diversion. They may document that they have done a CURES search within their medical reporting. Also, this search may alert your medical provider with respect to the need to address possible issues of addiction or substance abuse with respect to your course of treatment.

Is There Any Privacy Concerning CURES? 

Yes. Per the State of California “[t]he Health Insurance Portability and Accountability Act of 1996 (HIPAA) and confidentiality and disclosure provisions of California law cover the information contained in CURES 2.0.” Office of Attorney General, State of California.

What Information Is Contained In CURES?

Per the State of California, “California Health & Safety Code Section 11165(d) requires dispensing pharmacies, clinics, or other dispensers of Schedule II through IV controlled substances to provide specified dispensing information to the Department of Justice on a weekly basis.” Office of Attorney General, State of California.

For Injured Workers who are receiving “scheduled medication,” if it is a particular “scheduled drug,” it will be submitted to the CURES database.

What If I Need Legal Advice?

If you would like a free consultation concerning any workers’ compensation case, 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 28 years.

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WORKERS’ COMPENSATION LAWYERS, THE CALIFORNIA LAWYERS ASSOCIATION AND WORKERS’ COMPENSATION: ATTORNEYS REPRESENTING INJURED WORKERS: WHAT YOU NEED TO KNOW

The California Workers’ Compensation System is very complicated. Frequent changes in the law and current events require Attorneys practicing in workers’ compensation to stay up to date. In order to stay up to date, Workers’ Compensation Lawyers participate in educational programs.  Therefore, Associations that provide educational programs and address issues such as the standards for Lawyers practicing within the field is of import. Injured Workers are best served when their lawyers are active members of such Associations.

The California Lawyers Association (CLA) provides support to the Workers’ Compensation community to enhance the quality of the practitioners within the field. CLA has a Workers’ Compensation Section which supports the workers’ compensation community. The CLA Workers’ Compensation Section is essentially a spin-off from the State Bar.   The State Bar used to have a Section on Workers’ Compensation.  Lawyers would join the section by notifying the State Bar when paying their dues and pay an additional fee to participate.  Currently, the State Bar allows lawyers to join the CLA Workers’ Compensation Section by designating to do so and paying an additional fee.  The CLA, overall,  produces programs at the quality level of the State Bar.

Per the CLA, “[t]he purpose of the Workers’ Compensation Section of the California Lawyers Association is to serve our members, workers’ compensation practitioners, and the people of California by promoting an efficient and just compensation delivery system.”

Is The CLA Workers’ Compensation Section Exclusive for Applicant’s Attorneys? 

No. the Section is open to all participants in the workers’ compensation field. Therefore, both Applicant’s Attorneys and Defense Attorneys participated.

If an Attorney is a Member of the CLA Workers’ Compensation Section, It That Important? 

Yes and No. Any Lawyer can pay to be a member of the Workers’ Compensation Section. Therefore, being a member does not mean anything. Being an active member, however, is important. An active member, in my opinion, is one who regularly attends or participates in the various Educational Program provided.

Should an Injured Worker Value an Attorney Who Is a Member of CLA? 

Absolutely. As an active member, I have had the opportunity to attend countless seminars that CLA has provided. These seminars are well attended by both Applicant’s Attorneys and Defense Attorneys. The attorneys who I have seen attend these seminars are quite competent individuals. Further, the materials presented to them keep them apprised as to workers’ compensation law in general as well as recent case law and legislation that impacts the workers’ compensation system. Further, these seminars include many outstanding speakers and presenters in the industry. In sum, active participants in the Workers’ Compensation Section of CLA, are up to date on various workers’ compensation issues.

Further, participation in these programs allows Applicant’s Attorneys and Defense Attorneys to interact and debate ongoing issues within workers’ compensation. It is an opportunity to understand the positions that will be taken by the “other” side.

What are the Activities of the CLA’s Workers’ Compensation Section? 

The Workers’ Compensation Section of CLA is involved in the following activities: Publishing newsletters to keep members informed of new developments; establishing committees through which members may actively participate; presenting educational seminars on timely topics throughout the year; originating legislation which, upon approval, is made a part of our legislative program; recommending positions on pending legislation on behalf of the California Lawyers Association, and commenting on administrative regulations and rules of court.

What is the CLA Workers’ Compensation Section’s Purpose?

They ”are dedicated to serving our members, workers’ compensation practitioners, and the people of California by promoting an efficient and just compensation delivery system.”

Per the CLA website “[t]he purpose of the Workers’ Compensation Section of the California Lawyers Association is to serve our members, workers’ compensation practitioners, and the people of California by promoting an efficient and just compensation delivery system. The section, through standing committees, seeks to promote better legal practice, education and legislation affecting workers’ compensation. We review proposed state legislation and regulatory rules, and make recommendations to the authors. Our goal is to achieve the following constitutional mandate: Constitutional Basis of Laws

The Workers’ Compensations Act, codified in the Labor Code, with other related laws, has its jurisdictional basis in the California Constitution, Article XIV, sec. 4, which provides in part as follows:

The Legislature is hereby expressly vested with plenary power, unlimited by any provision of this Constitution, to create, and enforce a complete system of workers’ compensation…to compensate…workers for injury or disability, and…for death…irrespective of the fault of any party…to the end that the administration of such legislation shall accomplish substantial justice in all cases expeditiously, inexpensively, and without encumbrance of any character…””

What Type of Educational Programs Does CLA Provide in the Workers’ Compensation Section?

The Workers’ Compensation Section provides a wide variety of programs. There are seasonal programs which cover a large variety of topics. There are Rating Seminars which deal with rating issues. There are Specialization Seminars which assist attorneys in preparation of the specialization examination. Also, they also have Webinars on a large variety of topics as well.

What Other Services Does the CLA Provide? 

Per CLA, the “California Lawyers Association Workers’ Compensation Executive Committee, subcommittee on Technology and Social Media, offers access to our section members to listen to oral arguments made in Workers’ Compensation cases at various Districts of the California Court of Appeals.”

What Types of Committees Does the Workers’ Compensation Section Have? What Types of Things Do they Do?

The Workers’ Compensation Section has an Executive Committee, an Educational Committee, a Practice and Ethics Committee, a Legislation Committee, an Awards and Recognition Committee, Publications Committee, Membership Committee, Technology/Website/Social Media, a Community Outreach Committee, and an Unpublished Cases Committee.

These committees work on many different things such as improving the level of professionalism and competence for all individuals who practice before the Workers’ Compensation Appeal Board. They do so by providing quality and affordable education, public outreach, and assist with legislation.

How Does the CLA Workers’ Compensation Section Provide Assistance to the Workers’ Compensation Community? 

Per the CLA, the Section “seeks to promote better legal practice, education and legislation affecting workers’ compensation. We review proposed state legislation and regulatory rules, and make recommendations to the authors. Our goal is to achieve the following constitutional mandate: Constitutional Basis of Laws: The Workers’ Compensations Act, codified in the Labor Code, with other related laws, has its jurisdictional basis in the California Constitution, Article XIV, sec. 4, which provides in part as follows: The Legislature is hereby expressly vested with plenary power, unlimited by any provision of this Constitution, to create, and enforce a complete system of workers’ compensation…to compensate…workers for injury or disability, and…for death…irrespective of the fault of any party…to the end that the administration of such legislation shall accomplish substantial justice in all cases expeditiously, inexpensively, and without encumbrance of any character…”

What Do Members of CLA Workers’ Compensation Section Get? 

As a member, they are provide a newsletter, and provide access and discounts to Workers’ Compensation Section Programs and Publications. In addition, Members are allowed to participate in the Section and the Committee activities.

What If I Need Advice?

If you would like a free consultation regarding your workers’ compensation claim, 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 workers’ compensation cases for 28 years. Contact us today for more information.

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WORKERS’ COMPENSATION ATTORNEYS AND TRIALS: INJURED WORKERS, DISPUTED CASES AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Workers’ Compensation Attorneys can play a vital role in Workers’ Compensation Trials. A Workers’ Compensation Attorney’s abilities can impact on an Injured Worker’s recovery of benefits.

This article will discuss the role of Workers’ Compensation Attorneys in the Trial Process and how they assist Injured Workers in proving up their right to benefits.

Who Are Workers’ Compensation Attorneys?

Technically, there are no “Workers’ Compensation Attorneys.” Attorneys who practice workers’ compensation are licensed in the State of California to practice law. This means that they are eligible to practice any area of law within the State. Workers’ Compensation Attorneys receive the label as being a “Workers’ Compensation Attorney” based upon the fact that a significant part of their practice relates to the handling of workers’ compensations cases.

Workers’ Compensation Attorneys craft their trial skills in many ways. There are various organizations that provide training and education. There is a certified specialist program from the State Bar, there is the Workers’ Compensation Section of the California Lawyers Association (CLA) which provides educational programs, and there is California Applicant Attorneys Association (CAAA) which provides educational programs. Also, the Division of Workers’ Compensation from the Department of Industrial Relations that also provides educational programming. Many attorneys participate in the many different organizations to sharpen their skills.

Finally, many Workers’ Compensations Attorneys have “decades” of experience in representing injured workers and doing workers’ compensation trials. You will find many attorneys who have participated in over 100 trials.

The “Art of the Trial”

A Workers’ Compensation Trial can be viewed as a form of “art.” A well-done Trial is a wonderful thing to observe. When every participant “has their game on,” it is sheer entertainment. It is akin to a game of chess played with law, emotions, truth, lies, cunning, and actual stakes. The chess pieces at the trial include the Judge, the Court Reporter, the Attorneys, and the Witnesses.

The Workers’ Compensation Community has quite a number of skilled and experienced attorneys who are up to the challenge. There have been many outstanding trials. There have been times that I have taken the time out of my busy schedule to sit and observe other parties trials for both educational and entertainment purposes.

In those moments of a well-tried case, you feel that justice is taking place. The parties have been given a fair opportunity to present their case. These moments occur when Judge manages the courtroom with their demeanor and actions. The Judge plays a vital role in maintaining decorum and keeping the trial progressing. At the end of a good trial, the Injured Worker should have had the ample opportunity to be heard in a respectful manner.

In sum, the Constitutional Mandate of “Substantial Justice” will have been achieved.

As Far as Trial, What Skills Does an Attorney Need?

The answer to this question must be broken up into components. Pre-Trial, Trial, and Post-Trial.

Trial: I will first approach this question with respect to the Trial date itself. When I was an Associate Attorney, at a prior law office, on a rare occasion, I assigned to try a case at the last moment. In that circumstance, it was all about Trial Skills in handling the matter. There was no opportunity for Pre-Trial preparation.

Trial Skills include:

  • Proper understanding of WCAB Policy and Procedures
  • Proper reviewing of the file
  • Proper understanding of the issues
  • Proper interaction with the Injured Worker and Witnesses to ascertain testimony
  • The ability to establish a foundation for the issues and evidence and present them so that they are reflected in the record

With all those in mind, the Workers’ Compensation Attorney should be able to present the case, establish all of the facts and get admitted into evidence all pertinent exhibits necessary to “prove up the case.” This can include placing the Injured Worker and possibly some other witnesses on the stand to testify to “prove up the issues.” Also, they must be able to effectively cross-examine any defense witnesses.

Are Workers’ Compensation Trials Different than Civil Trials? Does It Matter?

Yes. Workers’ Compensation cases are tried at the Workers’ Compensation Appeals Board before a Workers’ Compensation Judge. Unlike Civil Cases, there is no jury. The proceeding is considered as Administrative Law.

In Workers’ Compensation, the Judge is the “trier-of-fact” rather than a jury. Therefore, the Trial Lawyer dramatics that may be employed in a civil trial may be unwarranted. Sometimes, the Workers’ Compensation Judge, for any given trial, channels the famous line from the fictional character from the TV Show “Dragnet.” As Joe Friday, the Detective for the LAPD, used to saw, “just the facts, ma’am.” Many times, Judges want to avoid trial drama and simply want “the facts.”

What are Workers’ Compensation Attorney’s Pre-Trial Activities?

Pre-Trial Activities involve framing of the legal issues of import for the case and establishing the facts and expert opinion to support the various positions. In workers’ compensation, the expert opinion is generally the employment of a medical expert such as a physician. This expert opinion is presented via medical reporting and deposition. In essence, prior to Trial, the Workers’ Compensation Attorney has all already established all the facts and opinions to support a favorable award. The trial may essentially be whether “the facts” either exist or are truthful in nature. By exist, for example, it could be as simple as the Applicant establishing the fact that they fell off of a ladder. By truthful, it is a situation in which where the Judge may have to decide between the testimony of the Injured Worker versus the testimony of an Employer Witness.

What are Workers’ Compensation Attorneys’ Post-Trial Activities?

Many times, there are Post-Trial activities. There are times at which the Workers’ Compensation Judge may request briefing of the issues from the parties. Therefore, a quality Workers’ Compensation Attorney will have writing skills as well as trial skills. Writing skills involve legal knowledge combined with the ability to express arguments and contentions.

Additionally, there may be appeals relating to an underlying Trial Decision from the Workers’ Compensation Judge. Therefore, a Workers’ Compensation Attorney’s ability to prepare appeals such as Petitions for Reconsideration is also of import. Further, the ability to prepare opposition briefing to a Defendant’s Petition for Reconsideration is required as well.

What If I Need Legal Advice?

If you would like a “free” consultation concerning any workers’ compensation case, 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 28 years. for more information.

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