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COVID-19 Workers’ Comp Claim Presumption Flowchart

15 Jun

Jessica Mulholland  June 9, 2020 6  HR Watchdog – Cal Chamber

Workers Comp

In early May, Governor Gavin Newsom signed an executive order extending workers’ compensation benefits to California employees who contract COVID-19 while working outside of their homes during the state’s stay-at-home order. This workers’ compensation benefits extension is causing some confusion, but a Sacramento-based law firm recently created a flowchart to help employers.

As previously reported, the order prompted many questions about its scope, criteria and implementation — and created a “rebuttable presumption” that workers meeting certain criteria who contract COVID-19 did so during employment (which means the law automatically assumes workers’ compensation covers their claims and shifts the burden to employers, who may then present evidence to rebut the presumption).

The California Department of Industrial Relations answered some questions in its Question and Answer page, but Sacramento-based law firm Mullen & Filippi went a step further, creating a COVID Claim Presumption Flowchart to further simplify how employers can determine whether a presumption applies.

Start at the top of the chart. If you answer yes to the first seven questions — which include whether the worker received a COVID-19 diagnosis or tested positive for the virus, whether the diagnosis was from a medical doctor holding a license from the California Medical Board and whether the diagnosis was confirmed with a positive virus or antibody test within 30 days, to name a few — COVID-19 is presumed as an industrial injury. This means that, unless you can rebut the presumption by providing evidence of an alternate cause, you must provide workers’ compensation benefits. If, however, you answer no to any of the questions, no presumption exists, and the normal evidentiary rules apply.

Assuming the claim is compensable, employers can use page two of the flow chart to help determine apportionment, compensable consequences, death benefits and temporary total disability benefits.

This executive order is retroactive to March 19, 2020, and extends through July 5, 2020.

Jessica Mulholland, Managing Editor, CalChamber

For more COVID-19-related federal, state and local resources, visit the CalChamber Coronavirus (COVID-19) webpage and access additional COVID-19-related HRWatchdog blogs.

Can an employee refuse to return to work?

HR CAlif. 6/11/2020

Yes. Although you can’t force a furloughed employee to return to work, their refusal to return may disqualify them from receiving unemployment benefits.

The California Employment Development Department (EDD) has released general guidance on COVID-19-related unemployment benefits.

For example, if a business has abided by local and state guidelines and is providing adequate employee protections, an employee who refuses to return to work out of a general fear of contracting COVID-19 wouldn’t qualify to receive unemployment benefits.

If, however, the business doesn’t have proper protective measures in place, an employee can use the lack of protective measures as a valid reason for not returning to work and will thus be able to claim unemployment benefits.

An employee who earns more money on unemployment cannot use the higher pay as a valid reason for refusing to return to work; their refusal would disqualify them from receiving unemployment benefits.

If an employee doesn’t have suitable childcare and cannot return work, it would likely be good cause for not returning to work and the employee would likely be able to keep their unemployment benefits.

Read more about Unemployment Insurance in the HR Library and HRCalifornia Extra’s Unemployment Insurance: A Guide for Employers with Newly Displaced Workers.

Q&As

OSHA Issues FAQ on Face Coverings

The new guidance outlines the differences between cloth face coverings, surgical masks and respirators.

JUN 10, 2020

WASHINGTON, DC – The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has published a series of frequently asked questions and answers regarding the use of masks in the workplace.

“As our economy reopens for business, millions of Americans will be wearing masks in their workplace for the first time,” said Principal Deputy Assistant Secretary for Occupational Safety and Health Loren Sweatt. “OSHA is ready to help workers and employers understand how to properly use masks so they can stay safe and healthy in the workplace.”

The new guidance outlines the differences between cloth face coverings, surgical masks and respirators. It further reminds employers not to use surgical masks or cloth face coverings when respirators are needed. In addition, the guidance notes the need for social distancing measures, even when workers are wearing cloth face coverings, and recommends following the Centers for Disease Control and Prevention’s guidance on washing face coverings.

These frequently asked questions and answers mark the latest guidance from OSHA addressing protective measures for workplaces during the coronavirus pandemic. Previously, OSHA published numerous guidance documents for workers and employers, available at https://www.osha.gov/SLTC/covid-19/, including five guidance documents aimed at expanding the availability of respirators.

For further information and resources about the coronavirus disease, please visit OSHA’s coronavirus webpage.

 

CALWORKSAFETY.COM ANNOUNCES COMPANY ACQUISITION OF ATENTO CONSULTING SERVICES

12 Jul

Atento Masthead Heading-7-1-19

IRVINE, CA — JULY 1, 2019 – Irvine, CA — Don Dressler, a national leader in human resources and risk management solutions, today announced the acquisition of Long Beach, CA-based ATENTO Consulting Services, Inc. by Irvine, CA-based CALWORKSAFETY, effective July 1, 2019.

Two ATENTO founding principles – Ron Paine, MS, ARM, and Laura Pensamiento – are seasoned experts in safety training for the construction industry. Combining the experiences with those of CalWorkSafety broadens the scope of Cal/OSHA compliance, citations defense services along with a wide variety of HR compliance solutions, specifically in Spanish and English: Safety, Risk Control & Human Resources including:

Safety Training Classes include: Hazard Communication (HazCom) Training, First Aid/CPR/AED training, Forklift Safety Training, Sexual Harassment Training (CA Compliant) and Defensive Driving Training.
Construction Specific Classes include: FED OSHA/CAL OSHA Construction 10-Hour Course & Certification, Excavation (including trenching & shoring), Fall Protection, Scaffold training, Qualify Flagger and safety traffic safety training, Construction Equipment Safety Certification, Rigging Safety and Confined Space training.

“Ron and Laura recognized employers with Spanish speaking workforces require hands on consideration developing safety programs that effectively address, overcome, and reconcile cultural difference,” said CalWorkSafety founder Don Dressler. “With 50+ years combined experience, they know what works and have collectively helped employers drastically reduce their losses through aggressive and persistent techniques that address the true causes of lost revenue,” Dressler said.

“We’ve focused on traditional approaches to establishing safety programs, such as engineering safety committees, safety incentive, and safety inspection programs for our clients. These programs aggressively motivate and educate managers on accident prevention,” Ron Paine said.

About Cal Work Safety 

Don Dressler is an experienced labor and employment law attorney and former workers’ compensation insurance company president. Nationally recognized expert on safety and workers’ comp programs and legal issues affecting business owners, Dressler is the architect of www.CalWorkSafety.com. For more than 25 years, CalWorkSafety has offered labor law/risk management consulting on: HR, Safety & Cal/OSHA, Labor Law/Discrimination/EOP and Workers’ Comp. CalWorkSafety’s customized Safety package designs significantly reduce worker’s compensation costs and protect employers from non-compliance issues affording effective employee training solutions to southern California companies. A virtual HR Department program offers effective hands-on management, discrimination and harassment claims. For more information on Cal/OSHA compliance related to illness and injury prevention, sexual harassment, discrimination contact Don Dressler at (949) 533-3742, or visit our website.

About That Loss Run Analysis

6 Nov
Loss Run Analysis-Cut Costs
The First Step: Cutting Worker’s Comp Costs. Loss Run Analysis Is the Second Step.

Online loss runs are the best method of cutting your Worker’s Comp (WC) costsfrom the claims perspective.  Even if you have a few accidents, online access usually results in immediate loss runs that can be printed or downloaded into a spreadsheet.

If your carrier offers a method to download information, it’s very helpful if everything possible is included in the download, because the more information on a spreadsheet, the potential to save WC dollars increases greatly.

Using the “red flag” terms when referring to loss runs is not suggested because there are no actual red flags as the loss runs may not have enough information to add this moniker on any of the claims listed. Paying attention to claim amountslooking ‘off’ is what you should analyze more specifically.

And, without looking at the loss runs, there is really no generic statements that can aid you in your loss run analysis.

For many employers the most confusing category is the term ‘Total Incurred’ which surprisingly, may not necessarily be a column on your loss runs. Below are common references used to define loss runs Total Incurred:

  • Total Reserves Incurred
  • Total
  • Total Reserves
  • Incurred
Loss Run Important Items:

  1. Injured worker’s name
  2. Date of loss
  3. Is it Open or Closed?
  4. Is the claim “litigated”, meaning injured worker has an attorney involved
  5. Claim amounts appear as “medical” and “indemnity”.  Other titles include: “medical/legal” and/or “allocated claims costs”.
  6. Cause of injury (not shown as such on all insurer loss runs).
  7. “Reserved” or “Unpaid” are claims where your action may help reduce costs or encourage insurer to close the case.

Attention getters arise when there is a significant amount of money in “reserved” or “unpaid” categories. Remember, since 2017 in California: there is a maximum dollar amount on each claim used to set your Experience Modification (Ex Mod). This amount is shown on the Workers’ Compensation Experience Rating Form issued each year by the WCIRB for your company.

Your broker has this form, so if you don’t have a copy, request it annually (prior to planning for your renewal of insurance for a new policy). The Experience Rating Form has a unique number: “Primary Threshold”. Remember, all costs of every workers’ compensation claim are charged to your Ex Mod, up to the maximum amount shown.

Beginning in 2019, every employee workers’ compensation claim will be listed on the form, and $250/claim will be deducted from the amount charged in your Ex Mod. This is done to offset the costs of “first aid” cases, which must now be reported to your insurer and the WCIRB.

CalWorkSafety offers detailed guidance on how I-9s are prepared and completed.  We assist with reviewing I-9 records and training employees on how to handle the I-9 process properly. To learn more send an email to: dondressler1@hotmail.com or call us at: 949-533-3742
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The Bottom Line:
Our Virtual HR Department offers effective hands-on Management and Staff training dealing with Mandated Regulations.  By simplifying the employee relations and compliance elements we help clients reduce workers’ compensation premiums, prevent discrimination and harassment claims, and settle/avoid employee claims. Email Us: dondressler1@hotmail.com
Visit our website: www.calworksafety.com or Call:  949-533-3742

$34.9 Million Awarded in Grants to Combat Worker’s Comp Fraud

17 Aug

Workers comp fraud is a large crime in America today. Tens of billions of dollars in false claims and unpaid premiums are stolen every year. Scams are forcing premiums higher — draining business profits and costing honest workers their pay and jobs.

Contrary to what most people believe, workers’ compensation fraud is more that just an employee exaggerating his medical condition or working for cash while supposedly disabled. While these things do occur, employers are also committing fraud by underreporting their payrolls to receive lower premiums and health care providers are billing for services they’ve never performed. Workers compensation fraud is costing the industry and citizens of our state billions of dollars each year.

Just recently, Insurance Commissioner Dave Jones awarded $34.9 million in grants to 37 district attorney offices representing 42 counties in California to combat workers’ compensation insurance fraud.

“These grants will assist district attorneys across the state in uncovering workers’ compensation fraud schemes and prosecuting those who take advantage of the system,” Jones said in a statement.

Do you have any questions about Insurance Fraud? Please don’t hesitate to contact us at CalWorkSafety.com or email us at dondressler1@hotmail.com.

Warning Signs for Employers Red Flags of Work Comp Fraud

6 Jun

There are several “red flags” that are common in workers’ compensation claim fraud. While none on its own is necessarily cause for alarm, the presence of two or more should raise suspicions and trigger an investigation.
1) Monday morning report of injury. The alleged injury occurs first thing on Monday morning, or the injury occurs late on Friday afternoon but is not reported until Monday.
2) Employment change. The reported accident occurs immediately before or after a strike, job termination, layoff, end of a big project, or the conclusion of seasonal work.
3) Suspicious providers. An employee’s medical providers or legal consultants have a history of handling suspicious claims, or the same doctors and lawyers are used by groups of claimants.
4) No witnesses. There are no witnesses to the accident and the employee’s own description does not logically support the cause of the injury.
5) Conflicting descriptions. The employee’s description of the accident conflicts with the medical history or injury report.
6) History of claims. The claimant has a history of a number of suspicious of litigated claims.
7) Treatment is refused. The claimant refuses a diagnostic procedure to confirm the nature or extent of an injury.
8) Late reporting. The employee delays reporting the claim without a reasonable explanation.
9) Claimant is hard to reach. The allegedly disabled claimant is hard to reach at home.
10) Changes. The claimant has a history of frequently changing physicians, addresses or jobs.
We believe that vigilant employers can nip most fraud in the bud with a tight workers comp management program that focuses on preventing injury, treating employers fairly and compassionately when injuries do occur and closely monitoring the recovery process until return-to-work on full or transitional duty. By actively demonstrating vigilance repeatedly, opportunistic fraudsters may think twice and sophisticated fraudsters may choose an easier target. Here are some best practices:
• Zero tolerance message. Educate employees about their rights and responsibilities under workers comp, and be clear that your intention is to care for anyone who is injured on the job, but that you aggressively prosecute fraud as a crime.
• Publicize your return-to-work program. Establish and reinforce a goal of recovery and return-to-work for any work-related injuries.
• Train supervisors. Your supervisors should understand workers comp and their role in the process. They should understand the employer/employee rights and responsibilities and what to do if an injury occurs. They should be alert for red flags.
• Aim for same-day injury reporting. Train employees to report injuries immediately when they occur.
• Conduct accident analyses. As soon as possible after a work injury or near miss, gather facts and witnesses while things are fresh. This will also set the stage for getting to the root cause and taking any remedial actions to prevent future occurrences.
• Set the tone at point of injury. Escort an injured worker to the treating physician in your network. Remind them of rights / responsibilities and that you will be monitoring their recovery.
• Keep in close touch with out-of-work injured employees. Let the employee know how important they are to the team. Have transitional work available that conforms with any restrictions and establish a return to work date.
• Work with your insurer. Be familiar with “red flags” and report any suspicious activity immediately.

State Fund Announces Work Comp Rate Increase for 4/1/15 – Some employers up to 17.5%

4 Feb

The State Compensation Insurance Fund in California is boosting its workers’ comp rates effective April 1st and it says insured employers will be paying based upon the overall average some 9% more under the modifications. Some employers however will be hit harder than others as State Fund is boosting tier A and B rates by 5%, dropping the 6% group discounts and increasing territorial surcharges in southern California 6.5% for Los Angeles and 4.8 for the rest of the area.
That means that effectively, a tier A or B account which is currently in a group and located in Los Angeles could see an increase of 17.5%. Accounts in Los Angeles not in a group will see increases of 11.5%.
State Fund, California’s market of last resort, is also increasing its requirements for schedule credits and debits to $25,000 and increasing minimum premiums by 25%.
All this is at a time when many employers are being hit hard by dramatic increases in their experience modifications, due to changes in the rating process in California.

Thanks to the Workers’ Compensation Executive for the news flash. http://www.wcexec.com

Workers’ Compensation Insurers Routinely Misclassify Payroll

22 May

The California Workers’ Compensation Insurance Rating Bureau (WCIRB) is finding that workers’ compensation insurers are often assigning the wrong payroll classification to their policies. In a recent WCIRB report about the large risk validation program, where the WCIRB is testing policies larger than those covered by the regular test audits of the Bureau, 13.3% of the time the largest premium policies have the wrong payroll classifications in use.
Up to now, these large policies (usually with premiums of over $1 million per year or higher) have been exempt from the regular audit program of the WCIRB because the assumption has been that larger policies were more accurate than smaller ones. That turns out to be false. In fact, in audits of 219 large policies, the WCIRB found $1.9 billion in premium had been reported in the wrong classifications. That means that approximately one in seven workers’ compensation policies, big or small, have the wrong payroll classifications being applied.
Employers need to take notice of this error rate. There is a good chance that your policy has the wrong class codes being applied, and that the premium auditor who is billing you is making a mistake as well. When in doubt, ask someone to review your classifications and your premium audits. The money you save could be your own.
Don Dressler Consulting assists employers with workers’ compensation classification issues and premium audit matters. Just contact us by email at DonDressler1@hotmail.com for information or help.

Tree-Trimming Fatality At Three Frogs, Inc Prompts Cal/OSHA Big Fines

17 Apr

Cal/OSHA recently issued citations with proposed penalties of $91,865 to Three Frogs, Inc., a La Mesa-based real estate investment company following the investigation of a fatal tree-trimming accident. A 42-year-old employee was killed last November when he was struck by a large section of a 60-foot-tall eucalyptus tree he was helping to remove from the employer’s property.

The employee had been working as a general construction laborer at various properties owned by Three Frogs for approximately three months when the accident occurred; neither he nor any of the other construction laborers employed by Three Frogs had experience or training needed to safely cut down a tree of that size.
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Why should an employer take care of a worker injured on the job? Because doing so saves money, and the data proves it!

15 Mar

Hard cold numbers prove the value of taking care of an employee injured on the job.  For California, if a work injury can be treated by workers’ compensation medical care only, the average cost of a claim is $1,156. (Data is based on the latest report for complete year statistics of the Workers’ Compensation Insurance Rating Bureau.)

However, if the employee can’t return to work the next day, and receives “temporary disability” payments, the average cost per claim jumps to $15,041. This increase in costs clearly shows the value of an aggressive return to work program, and a “day of injury” protocol in taking care of the physical and emotional needs of an injured employee.

If an injured employee experiences any, even minor, permanent disability, the average cost per claim triples to $41,313.  Major permanent disability claims average $140,021 per claim and permanent total disability claim costs soar to an average of $109,922,270 per claim – yes that is $109 million per claim on average.  Death claims only average a cost of $43 million each.  

Contact Don Dressler Consulting and CalWorkSafety for help in keeping injured workers on the job.  Our Nurse Consultant is doing great work in this area and our experience consulting staff can help with safety programs to prevent the injuries in the first place.

Visit our websites at www.DonDressler.com and www.CalWorkSafety.com

Even One Injury Can Raise Your Ex Mod

14 Apr

It is becoming increasingly clear in 2013 that recent changes in the California workers’ compensation experience modification process are severely hurting small employers, who have even 1 work injury reported. A single claim can push an employer’s experience mod up by 15 to 25 %, or more. Now that the first $7,000 of each claim are used in the “primary” loss portion of the experience modification, up from just $2,000 in past years, a single work injury can increase future workers’ compensation premiums by 3 to 4 times the dollar cost of the claim, according to UC Berkeley researcher Frank Neuhasuer and others.
And experience mods being reported in 2013 are showing this impact. The increases are so high that the Workers’ Compensation Insurance Rating Bureau has met recently to consider limiting the impact of one claim. The problem, however, is that many times, what appears to be multiple claims really is just an attorney for an injured worker taking advantage of filing two different claims, one for a “specific’ injury such as an injured shoulder, and a second claim for “cumulative trauma” over the work life of the employee. In truth, these are not two claims, but the lawyer’s effort to magnify injuries to obtain more money for himself and the worker.
Employers, in self-defense, need to consider “post offer pre employment physical exams”, immediate and through accident investigations, and full cooperation with their workers’ compensation claims personnel.