Author: WorkCompAcademy

A proposed new law in California, Senate Bill 335, seeks to compress the time for investigating a reported occupational injury or illness from 90 days to 45 days while increasing the employer’s liability for medical treatment benefits during the investigation period from $10,000 to $17,000.

Regarding penalties,S B 335 proposes a return to pre-reform penalties that allowed non-discretionary, uncapped, and compounded penalties. Under these old rules, penalty amounts were tied to the entire amount of a particular benefit that had been paid out. In mature cases with large medical treatment and/or indemnity costs, 10 percent of the specie of benefit could reach tens of thousands of dollars for a single penalty.

The CWCI just prepared and published a comprehensive analysis of this proposed law. It concluded that it is unlikely that claims adjusters can unilaterally expedite the investigation process without unintended consequences.

Claims investigation is a complex process requiring documentation from multiple sources, few of which are within the control of the claims adjuster.

Claims adjusters can only begin an investigation upon notification of a claimed injury from an injured worker, their employer, or attorney. The number of days between the date of injury and the employer’s notification can be influenced by several factors, including the type of injury or illness, employee’s occupation, when and where the injury occurred, and whether or not there were witnesses.

One of the more significant confounding factors that can delay timely reporting is California’s relatively unique high rate of cumulative trauma claims, which are estimated to account for up to one out of every six indemnity claims..

The analysis of the data by CWCI authors shows that at 90 days following employer notification, more than 97 percent of all reported claims have a compensability decision, but at 45 days, only 85.2 percent of all claims have been accepted or rejected, a relative difference of 13 percent.

The analysis also shows that at 45 days, 63 percent of claims that are ultimately denied remain under investigation. Among the claims that are ultimately denied, 54 percent receive medical treatment within the 90-day investigation period, while 28 percent receive medical treatment within the first 45 days of the investigation.

Following the employer’s notification of an injury, the average cost of medical treatment reached $735 at 45 days and $1,372 at 90 days. In 1.4 percent of these claims the $10,000 limit is met or exceeded during the 90-day investigation period, while in 0.6 percent of the claims the $10,000 limit is met or exceeded within 45 days.

For claims that are ultimately denied, medical treatment during the 90-day investigation period averaged $734, with only 1.0 percent of the denied claims involving medical treatment costs greater than $6,500, and 0.5 percent of the denied claims reaching or exceeding the $10,000 limit.

Decreasing the investigation period to 45 days would actually reduce access to medical treatment and would likely increase the number of provisional denials.

Cornerstone Care Inc. operates as Cornerstone Homes at three south Orange County locations in Laguna Hills. The assisted living facilities provide comprehensive services, short- and long-term care, hospice care and other services.

A U.S. Department of Labor Wage and Hour Division investigation found Cornerstone Care violated the Fair Labor Standards Act as follows:

– – Charged workers for meals that they failed to provide.
– – Made payroll deductions for lodging but provided none. Instead, workers slept in facilities’ kitchens and living rooms.
– – Failed to pay workers for time spent in mandatory trainings on their days off.
– – Failed to record or pay for time employees worked during interrupted breaks.

The employer’s actions led to FLSA overtime violations, and to the department’s recovery of $158,854 in back wages for 13 employees.

“These essential workers deserve to be paid all the wages they have legally earned,” said Wage and Hour Division District Director Eric Murray in Phoenix.

“The U.S. Department of Labor is committed to preventing employers from short-changing workers or making illegal payroll deductions, and gaining an unfair competitive advantage over those employers who play by the rules. We invite employers to call us with questions and speak confidentially to a trained professional about their compliance responsibilities.”

For more information about the FLSA and other laws enforced by the division, contact its toll-free helpline at 866-4US-WAGE (487-9243). Learn more about the Wage and Hour Division, including a search tool to use if you think you may be owed back wages collected by the division.

The Travelers Companies, Inc. announced the results of the Travelers Mental Wellness Checkup, a national survey of 2,000 employed adults across more than 10 industries. Most respondents reported experiencing some type of negative effect on their mental health since the pandemic began last year: 59% have worried about losing a loved one, 50% have suffered from loneliness and 37% said their level of personal stress has worsened.

However, respondents have remained resilient, as most reported that their mental state appears to be recovering, with 73% describing their current mental health as excellent or good – up from 67% in the early months of the pandemic.

“Understanding an employee’s mental health plays an important role in managing workplace injuries,” said Dr. Marcos Iglesias, Vice President and Chief Medical Director at Travelers. “The pandemic has likely affected the many psychosocial factors that can complicate the healing process and delay the time it takes to recover from a physical injury. It’s encouraging to see workers’ mental health trending back toward pre-pandemic levels because when employees are in a good mental state, they are safer, more productive and can often recuperate quicker if they do get hurt.”

Positivity and the use of coping mechanisms are likely contributing to the improving outlooks. When asked to name any “silver lining” they’ve experienced during the pandemic, most employed adults (84%) identified at least one of the following, including:

– – Having a job (41%).
– – Saving money (34%).
– – Working remotely (29%).
– – Ability to multitask between personal and professional responsibilities (24%).
– – Picking up a new hobby (20%).
– – Not commuting (19%).
– – Connecting with others virtually (15%).

Exercise and spending time with family were the top ways that respondents described managing loneliness and stress over the last year, followed by using social media, spending time with pets and reaching out to friends or co-workers. Coping strategies varied somewhat by age group: baby boomers were more likely to keep in touch with others, while millennials were more likely to turn to social media or a new hobby.

The survey also found a correlation between employer-provided resources and workers’ mental health. Thirty percent of respondents who believe their employer has provided ample mental health resources also reported that their ability to manage stress improved during the pandemic, and one-third (33%) noted that loyalty to their employer increased. Meanwhile, 42% of workers who feel their employer has not provided enough mental health support said their ability to manage stress worsened during the pandemic, and 29% said loyalty to their employer decreased.

Dr. Iglesias added, “It’s important to note that employers can positively affect the overall well-being of their employees by taking a more holistic view of their health beyond just physical safety.”

To download the report and learn more about the findings, including generation- and industry-specific differences, please visit Travelers.com/mentalhealth.

See’s Candies secured a victory when the California Court of Appeals rejected a proposed statewide employment class action based on alleged meal and rest period violations.

The lead plaintiff, Debbie Salazar, alleged claims for unpaid overtime, unpaid minimum wages, failure to provide rest and meal periods, failure to provide wage statements and to maintain payroll records, failure to timely pay wages on termination, and unfair and unlawful business practices under Business and Professions Code section 17200.

Salazar sought certification of two classes: a “single staffing class” and a “meal break class.” With respect to the meal break class,

Salazar acknowledges that See’s official meal break policy complies with California law. Salazar’s theory is that, despite that policy, See’s consistent practice was to deny second meal periods when shifts exceeded 10 hours. Salazar claims that she can prove this consistent practice, and therefore establish liability, through common proof.

In opposition to the motion, See’s argued that See’s did not rely only on the Scheduling Form to provide second meal breaks, but also provided employees with training on its policies and required its shop managers to implement those policies.

In support of its opposition, See’s submitted declarations from 55 employees, including both managers and shop employees. The managers testified generally about See’s policy of providing a second meal break for shifts over 10 hours. Most of the employee declarants testified that they were aware of this policy. More than half of the employee declarants had worked shifts longer than 10 hours, and almost all of these testified that they took second meal breaks during such shifts at least some of the time. Four employees testified that they occasionally chose not to take a second meal break so that they could leave work earlier or get overtime pay.

The trial court denied certification of the meal break class on two grounds. First, the court found that Salazar had failed to show that she could prove through common evidence that See’s had a consistent practice to deny second meal breaks. Second, the trial court found that Salazar’s proposed trial plan was inadequate to manage these individual issues.

The court of appeal affirmed denial of class certification in the published case of Salazar v Sees Candy.

Class actions are authorized “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court.” (Code Civ. Proc., § 382.) To certify a class, “[t]he party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.”

The community of interest factor in turn has three requirements: (1) common questions of fact or law that predominate over individual issues; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.

Class certification is generally inappropriate if liability can be established only through individual proof. When common issues predominate over individual issues, a class should not be certified if there is no way to manage the remaining individual issues “fairly and efficiently.”

Under the substantial evidence standard, the court of appeal must credit the trial court’s reasonable inferences, even if a competing inference could be drawn.