HOME HEALTHCARE WORKERS AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Home Healthcare is an important field in California.  Many individuals require in-home services for a variety of medical conditions.  Home Healthcare Workers (HHCW) can be employed in a variety of ways including through the State.

This article will discuss Home Healthcare Workers, their tasks, and the occupational risks of HHCWs.

What Are Home Healthcare Workers? 

Per the United States Department of Labor, “[h]ome healthcare workers provide hands-on long-term care and personal assistance to clients with disabilities or other chronic conditions. These workers, who may be home health aides, personal/home care aides, companions, nursing assistants or home health nurses, are employed in patients’ homes and in community-based services such as group homes.”

What Tasks Do They Perform?

“Depending on their training and job duties, they help patients with activities of daily living such as meals, bathing, dressing and housekeeping, and may perform clinical tasks such as medication administration, wound care, blood pressure readings and range of motion exercises.”  USDL

What are The Home Healthcare Hazards?

Home Healthcare Workers are subject to a large variety of hazards.  They include bloodborne and biological pathogens, latex sensitivities, ergonomic hazards, violence, hostile animals, dangerous conditions and unhygienic conditions.

How Do These Problems Occur?

Bloodborne and Biological Pathogens: This can include saliva, urine and feces.  These can occur while performing injections or changing bags such as urostomy bags.

Latex Sensitivity: This can arise out of the use of gloves. Glove use can result in contact dermatitis.

Ergonomic Hazards:  This can arise from working at a patient’s home which is not set up in an ergonomic fashion.  For example, lifting may be required in an awkward position.

Violence: This most commonly arises in patients that suffer from dementia.  They have the capacity to act out in a violent fashion.  This can include being bitten, kicked, pinched, punched, scratched, or shoved.

Hostile Animals: This most commonly relates to aggressive family pets who may bite or jump on workers.  Additionally, they can be tripping hazards as well.

Dangerous Conditions: These conditions can arise from physical defects on the premises as well as exposures to drug residues, infectious agents and cleaning chemicals..

Unhygienic Conditions: Unlike hospitals, home settings may not have proper disposal of biological waste. This can result in transmission of pathogens.

Travel: Home Healthcare Worker may service more than one patient in a day.  Thus, there duties may include travel from one location to another

Environmental Hazards: This can include second-hand smoke, exposure to asbestos, exposure to lead paint and exposure to allergens such as dust and mold.

What If I Need Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for over 28 years. Contact us today for more information.

 

Injured Workers and Medical Releases: Insurance Companies Requesting Releases and Workers’ Compensation: What You Need to Know

Injured Workers are frequently requested by Insurance Carriers to sign medical release forms.   These releases are also requested by Attorneys who represent both Injured Workers and those who represent Insurance Companies.

This article will discuss workers’ compensation discovery, medical releases, the different types of medical releases, and why insurance carriers and attorneys request medical releases.

What is Discovery?

“Discovery” is a legal term. It essentially means “information gathering” within a legal system. Legal systems, such as the California Workers’ Compensation System provides laws concerning this discovery. Examples of workers’ compensation discovery include witness depositions, medical records subpoenas, and medical-legal examinations.

Records can be obtained formally and informally.  The formal was is by subpoena.  The informal way is by consent.  Consent is obtained via a signed medical release authorizing the document production.

Why Is Workers’ Compensation Discovery Unique?

Workers’ Compensation (WC) Discovery is unique in that is pace is set within the Labor Code. Labor Code Section 5402 provides that Insurance Companies have 90 days, from the date of employer discovery of the claim.

WC Discovery is used to find out a variety of information. Medical records may allow the Insurance Company to verify the injury.   Medical records can provide information about one’s medical history which can impact the Claimant’s entitlement to compensation.

Beyond workers’ compensation, there are federal rules which address medical privacy issues.  This federal law is HIPPA which created national standards to protect individual’s medical records and other personal health information.  It “generally gives patients the right to examine and obtain a copy of their own health records.”  HIPPA

Why Are Medical Releases Important for Discovery?

Labor Code Section 5402 creates urgency for the insurance companies to obtain the claimant’s information as soon as possible.  Medical releases allow for medical records to be produced in a more expeditious fashion.

Also, there releases may authorize psychiatric or drug and alcohol treatment.  A medical release must specify these records.   Releases does not require these releases.  Thus, Injured Workers, especially if the claim is not a psychiatric claim, do not and should not sign a release for these records.   This is noted in the case of Allison vs. WCAB, , it was noted that “[t]he Supreme Court ruled that although the plaintiffs waived their physician-patient confidential communication privilege (Evid. Code, § 990[Deering’s] et seq.) and their psychotherapist-patient confidential communication privilege (Evid. Code, § 1010[Deering’s] et seq.) as to the medical, emotional, and mental conditions placed by them in issue in the case, and information regarding such conditions was therefore discoverable, all medical privacy was not waived.” 64 C.C.C. 624

Is there an Obligation to Provide a Release?

There is no obligation for an Injured Worker to provide a release to an Insurance Company.   Again, with psychiatric or drug and alcohol treatment releases, these should be scrutinized whether they are relevant.

What Happens If I Do Not Sign Releases?

Sometimes, when releases are not signed, a carrier will deny a claim based upon the lack of cooperation in discovery.   Insurance Companies also have the power to subpena records.  Therefore, they can obtain the records.  It may, however, take more time and paperwork to do so.

What If I Need Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for over 28 years. Contact us today for more information.

REMOTE WORKERS’ COMPENSATION TRIALS VS. IN PERSON TESTIMONY: THE WORKERS’ COMPENSATION APPEALS BOARD SIGNIFICANT PANEL DECISION: A WORKERS’ COMPENSATION ATTORNEY’S VIEW: WHAT YOU NEED TO KNOW

In WCAB vs. Chevron (2021), the Workers’ Compensation Appeals Board issued a Significant Panel Decision on with respect to how California Workers’ Compensation Appeals Board have trials done remotely. Currently, the WCAB uses a “zoom” like product called Lifesize to conduct their trials.

What Was the Chevron Case issue?

In Chevron, in person testimony was taken. After the change to remote testimony, there was additional witness testimony. The Workers’ Compensation Judge on the matter did not want to proceed. The issue was essentially whether all testimony be taken in the same manner.  Thus, there was the argument that the matter be delayed until “in person” testimony could take place.

The Applicant wished the matter to proceed with remote testimony rather than wait.

What Was the Ruling?

In the particular case, the WCAB ordered the trial to proceed with remote testimony.

The WCAB, ruled that “each case must be resolved according to its own particular circumstances, and it would therefore be inappropriate to institute a blanket rule that it is per se unreasonable to continue a case to allow for in-person testimony.”

“However, in consideration of Executive Order N-63-20, the purposes of the workers’ compensation system, and current conditions, the default position should be that trials proceed remotely, in the absence of some clear reason why the facts of a specific case require a continuance. Moreover, as the party seeking the continuance, the burden should be on defendant in this case to demonstrate why a continuance is required.” [emphasis added]

What Facts Would Required for “In Person” Testimony?

 At trials, Judges have the opportunity to view Injured Workers when they are not testifying.  They see them  sitting and observing the trial, and they see them walking up to take the stand to testify, and they see them during break time.  Additionally, they are able to view the Injured Worker’s posture during testimony.  Thus, it is possible to view whether someone is exhibiting pain behavior.

Based upon my 29 year Trial Attorney experience, an Applicant’s live testimony is  important when there is an allegation of marked or profound  disability.  Thus, if an Injured Worker has a severe limp, a Judge would be able to observe it if there was live testimony.   This observation is not possible with remote testimony.

Thus, matters in which observation of the Applicant is of import would be the cases upon which a party may wish to have “in person” testimony.

What If I Need Advice?

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

THE FEDERAL EMPLOYEES’ COMPENSATION ACT (FECA) AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

The Federal Government has its own Workers’ Compensation System.  Thus, a Federal Government Employee, living in California, pursue FECA claims rather than filing California workers’ compensation claim.

This article briefly details the Federal Employee’s Compensation Act (FECA) system and how it differs from the California State system.  This article is cursory and not meant to be relied upon for the purposes of pursuing a claim.   It is merely informational.

Who Is covered By FECA?

“The FECA program covers all civilians employed by the federal government, including employees in the executive, legislative, and judicial branches of the government. Both full-time and part-time workers are covered, as are most volunteers and all persons serving on federal juries. Coverage is also extended to certain groups, including state and local law enforcement officers acting in a federal capacity, federal jurors, Peace Corps volunteers, students participating in Reserve Officer Training Corps programs, and members of the Coast Guard Auxiliary and Civil Air Patrol.” The Federal Employees’ Compensation Act (FECA): Workers’ Compensation for Federal Employees Updated April 13, 2020, Congressional Research Service https://crsreports.congress.gov R42107

Note: There are Injured Workers who are employed by businesses with Federal Government contracts.   These employees may be as a private employee and may not be eligible for a FECA claim. Instead, they are eligible to pursue a state-based workers’ compensation claim.

What Conditions are Covered Under FECA?

Under FECA, “workers’ compensation benefits are paid to any covered employee for any disability or death caused by any injury or illness sustained during the employee’s work for the federal government.  There is no list of covered conditions nor is there a list of conditions that are not covered.” Supra.

Defenses available for certain injuries.   The defenses include willful misconduct and intoxication as causes of the injury.

Note: These defenses are similar to that of state-based systems.  In addition, state-based systems place limitations on claiming benefits on certain body parts. In California,  compensation is limited with respect to the following body parts: psyche, sleep, and sexual dysfunction.

What Is the FECA Claims Process?

“All FECA claims are processed and adjudicated by OWCP (Office of Workers’ Compensation Programs.) Initial decisions on claims are made by OWCP staff based on evidence submitted by the claimant and his or her treating physician. The law also permits OWCP to order a claimant or beneficiary to submit to a medical examination from a doctor contracted to the federal government. An employee dissatisfied with a claims’ decision may request a hearing before OWCP or an OWCP review of the record of its decision. A final appeal can be made to the Employees’ Compensation Appeals Board (ECAB). The decision of the ECAB is final, cannot be appealed, and is not subject to judicial review”. Supra.

Note: in the California state-based system, there is the Workers’ Compensation Appeals Board which provides for adjudication of claims.   Employers are required to maintain insurance, be self-insured, or be legally uninsured.  Also, the California state-based system also allows for an employer opt-out in the form of Alternative Dispute Resolution (ADR.)  In the California system, Injured Workers are capable of appealing cases up to the California Supreme Court. In very limited circumstances, there may be even access to Federal Courts.

Are There Time Limits to Filing FECA Claims?

 “FECA Claims In general, a claim for disability or death benefits under FECA must be made within three years of the date of the injury or death. In the case of a latent disability, such as a condition caused by exposure to a toxic substance over time, the three-year time limit does not begin until the employee is disabled and is aware, or reasonably should be aware, that the disability was caused by his or her employment.” Supra.

Note: In California Workers’ Compensation, there are multiple time limits for filing claims.  Generally, there is a one-year statute to file an Application at the Workers’ Compensation Board.

What Are the FECA Disability Payments?

 The FECA system has various forms of disability payments. They include continuation of pay, partial disability payments, scheduled benefits (which are permanent partial disability payments), and total disability payments.

For the scheduled permanent partial disability payments, there is a schedule which determines the disability payments.

For total disability, there is a monthly benefit paid.

Note: The California system has salary continuation benefits for some public employees.  Otherwise, there is a temporary disability rate which is essentially two-thirds of the workers’ average weekly wage. Similar to FECA, California has a permanent disability schedule which addresses the amount of payments of permanent partial disability.   The California based system also has a form of total disability payment as well.

Are There FECA Death Benefits Available?

 Yes.  If an employee dies in the course of employment or from a latent condition caused by his or her employment, the employee’s survivors may be eligible to receive compensation benefits.

Note: The California system also has a death benefit component  for dependents.

What Are Medical Benefits Under FECA?

“Under FECA, all medical costs—including medical devices, therapies, and medications— associated with the treatment of a covered injury or illness are paid for, in full, by the federal government.”  Supra. “Generally, a beneficiary may select his or her own medical provider and is reimbursed for the costs associated with transportation to receive medical services.”  Supra.

Note: This is different from the California system.  In that system, there are medical provider networks that may impact which providers a worker can choose as their treater.   California industrial medical treatment is also entirely the responsibility of the carrier and not the worker.

Does FECA Provide Vocational Rehabilitation Benefits?

“The Secretary of Labor may direct any FECA beneficiary to participate in vocational rehabilitation, the costs of which are paid by the federal government. While participating in vocational rehabilitation, the beneficiary may receive an additional benefit of up to $200 per month. However, any beneficiary who is directed to participate in vocational rehabilitation and fails to do so may have his or her benefit reduced to a level consistent with the increased wage earning capacity that likely would have resulted from participation in vocational rehabilitation.”

Note: The California system is different.  Currently, for 2013 dates of injury and beyond, there is an educational voucher along with a separate job displacement benefit payment.  It is  markedly different from FECA.

What If I Need Advice?

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

 

 

 

 

 

WHY IS MY WORKERS’ COMPENSATION CLAIM DELAYED?  INJURED WORKERS, OUTSTANDING CLAIMS, AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Many Injured Workers have their workers’ compensation claims delayed.

This article will discuss why claims are delayed and what Insurance Company activities occur during the delay period.

Why Are Claims Delayed?

Insurance Companies delay claims in order to verify that there is a legitimate claim.  Per the Labor Code, they are afforded this opportunity to investigate.

As part of their investigation, Insurance Companies will investigate the following matters.

Coverage: Insurance Companies need to verify that they actually insure the Employer for the date of the injury.

Employment Verification: Insurance Companies need to verify the Injured Worker actually worked for the Insured Employer.

Date of Injury:  Insurance Companies need to verify the date of injury.

Employer Injury Knowledge:  Insurance Companies need to know if the Employer knows about the work injury.  They need to know the details how the injury happened, whether there were witnesses,  and whether it was reported to management.

Medical Verification: Insurance Companies will seek to obtain the medical reporting from the Industrial Clinic or the Medical Provider who treated the worker.

Statements: Insurance Companies may seek the use of an investigator to take statements of the injured worker, other employees of the company, or witnesses,  to verify the injury.  Investigations can be done by Attorney who may take depositions.

Records:  Insurance Companies may seek records from prior employers, insurance companies or medical providers

Qualified Medical Evaluation: An Insurance Company may seek a Panel Evaluator from the State of California to obtain a medical opinion on causation. .

What is the Authority for Delaying a Workers’ Compensation Claim?

Labor Code Section 5402(b) provides for a 90 day period upon which Insurance Companies have to deny a claim.  Thus, there is a 90 day period to delay the claim and investigate.  This 90 days is from the knowledge of the claim.

The date of knowledge is per LC 5402(a) which provides that “ [k]nowledge of an injury, obtained from any source, on the part of an employer, his or her managing agent, superintendent, foreman, or other person in authority, or knowledge of the assertion of a claim of injury sufficient to afford opportunity to the employer to make an investigation into the facts, is equivalent to service under Section 5400.” Thus, employer knowledge can trigger the start of the insurance company’s delay period

What If I Need Advice?

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

 

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