Overview
of Workers’ Compensation in
Workers’
compensation insurance was set up to provide compensation to employees for
work-related injuries and illnesses, including medical treatment costs,
temporary payment for lost wages, and permanent disability payments to
compensate for decreased ability to compete in the open labor market.
Workers'
compensation in
Workers'
compensation offers what has been called “historic compromise.” Employees give up the right to pursue large
monetary, fault-based awards in exchange for a guarantee of prompt delivery of
lower no-fault benefits. The injury must be work-related, but the
employer need not have been “at fault.” The employer is required to pay
benefits as long as the injury arose out of employment (AOE) and in the course
of employment (COE). In
The California
Department of Industrial Relations (DIR) administers workers'
compensation. Within the DIR is the Workers' Compensation Appeals Board
(WCAB). This Board is a judicial body made up of seven commissioners, five of
whom are attorneys. A disputed case is argued before an administrative
law judge. It can be appealed to the full Board. In special cases, a
decision can be appealed to a state intermediate court of appeal. The award for total disability is only $490
per week - or less. There is no limit on expenditures for treatment
expenses. Vocational rehabilitation services are capped at $16,000. In
the event of death, the maximum award to the family is $160,000 depending on
the number of dependents left behind.
An injured employee
is required to inform the employer within 30 days of the "date of
injury." At this point, the employer has only 24 hours to notify the
State. The employee has a right to
pre-designate a personal physician who will provide treatment in the event of
occupational illness or injury. If she does not, the employer has the
right to designate the treating physician or clinic. As treatment for a work
injury anticipates medical-legal reports to third parties which impact the
employer's insurance rates, the confidentiality of the worker’s medical record
is limited. The employee, is however, protected from retaliation for
claiming the injury. The Americans With
Disabilities Act and the California Fair Employment and Housing Act provide
additional protections.
The burden of proof
is on the party trying to establish some point by a preponderance of the
evidence. A preponderance of the evidence is that amount of evidence
which tends to prove a fact in dispute more likely than not. The injured
worker has the burden to prove that the injury or medical condition arises out
of and in the course of employment. Once the injured worker has proved
that the injury arose from the employment, all applicable laws "shall be
liberally construed by the courts with the purpose of extending the benefits
for the protection of persons injured in the course of their
employment." All judicial decisions must be based on “substantial
evidence.” An inaccurate medical report is not substantial evidence as a
matter of law.
There must be an
employment relationship. There must be an injury. The injury must
have been caused by employment. The injury must also occur in the course
of that employment. The injury may be specific or “cumulative.” It
may be physical, physical-mental or mental-mental.
In order for “condition”
to be considered an injury, it must ether cause work disability or result in
need for medical treatment. When an injury aggravates a previously
existing non-industrial disability, the concept of apportionment arises.
In such cases, the "tape must be rewound” and the pre-existing disability
must be rated and then subtracted from the current disability. The date
of injury in a cumulative injury situation is the date when the employee first
suffered work disability or either new or should have known that the disability
was caused by present or previous employment.
The causation
analysis is: What is the diagnosis? What is the work exposure? What
other causes of disability might be present other than work? The focus is
on disability rather than on diagnosis. In general, work activities need
not be the sole cause of an injury, or even the primary cause in
physical-physical or physical-mental claims. In mental-mental claims, however,
actual events of employment must be the predominant cause of the injury.
This 50 percent rule is reduced to 35 percent when injury results from a
violent act. Also, psychiatric injury is not compensable unless the
employee was employed six months. This does not apply if the injury was
caused by an extraordinary event. A lawful, non-discriminatory, good
faith personnel action does not provide a basis for a claim of psychiatric
injury.
In the case of job
stress, the focus is not on how much stress should be felt by the employee
based on a normal reaction to events but how much stress actually is felt by
the individual worker reacting uniquely to the work environment. However,
there has to be something more than imagined stress. The employment must
be a positive factor influencing the course of the disease. The
employment cannot be a mere passive element that a non-industrial condition
happened to focus on, nor may the employee's duties merely provide a stage for
the injury.
Claims filed after
notification of termination or layoff are not allowed unless one of the
following conditions are met; sudden or extraordinary event, employer had
notice of the injury before the notice of termination, medical record existing
before the termination or layoff contains evidence of treatment of the injury,
a trier of fact finds that there was sexual or racial
harassment, or there is evidence that the date of injury is subsequent to the
date of notice of termination but before the effective date of that notice.
Emotional ability,
loss of concentration and problems thinking constitute loss of function.
Loss of function implies impairment. Disability is the inability as a
result of impairment to compete in the open labor market. The open labor
market consists of all jobs or occupations, not just the injured worker's usual
and customary occupation. Impairment can cause disability even though it
does not prevent the injured worker from doing his or her present job.
There are four
categories, also called factors of disability that must be covered in a
disability evaluation: objective factors, subjective factors, work
restrictions, and loss of pre-injury capacity. Objective factors are
those that can be directly measured, observed, or demonstrated.
Subjective factors cannot be measured or observed. Emotional factors are
typically subjective factors. A factor is considered ratable if it
interferes with the worker's ability to compete in the open labor market.
If there is a mental
condition that handicaps the applicant in competing in the open labor market
and the disability has a relationship to work and the worker’s condition is
permanent and stationary, there must be an evaluation of permanent psychiatric
disability as follows: a multi-axial diagnosis, a list of disabling
symptoms and whether each is constant, intermittent, or occasional in frequency,
and opinion as to the level of impairment (minimal, very slight, slight,
moderate, severe) of each disabling symptom with respect to eight
statutory work functions. The eight work functions are: the ability to
comprehend and follow directions, the ability to perform simple and repetitive
tasks, the ability to maintain a work place appropriate to a given workload,
the ability to perform complex or varied tasks, the ability to relate to other
people beyond giving and receiving instructions, the ability to influence
people, the ability to make generalizations, evaluations or decisions without
immediate supervision, and the ability to accept and carry out responsibility
for direction, control, and planning.
Americans with Disabilities Act (
The Americans with
Disabilities Act prohibits discrimination in employment against any “qualified
individual with a disability” and requires employers to provide
"reasonable accommodation" that will enable the individual to
function in the job. Almost identical language is found in the California
Fair Employment and Housing Act. These laws go beyond workers'
compensation laws to require job modification or provision for alternative
work. A qualified individual with a disability is defined as someone who
meets one of the following criteria but who can perform the essential functions
of the employment position with or without reasonable accommodation. A
physical or mental impairment that (even when treated) substantially limits one
or more major life activities or a record of such impairment or are regarded as
having such impairment. Fundamental job duties do not include incidental
duties or functions. Substantial limitation means an impairment that
restricts the individual's ability to perform either a class of jobs, or a
broader range of jobs in various classes, as compared to the average person
having comparable training, skills, and abilities. Reasonable
accommodation implies removing barriers, restructuring the employee's job to
remove non-essential functions, reassignment when feasible to duties that the
employee can perform, and offering other positions which effectively eliminate
essential functions when such positions already exists.
For the