Some Basic Issues
#1 Is there any way around the employer control of treatment by use of their medical provider networks (MPN)?
YES. Pre-designate your primary physician on the appropriate forms. And, if the employer fails to notify workers of their rights, the workers can gain control over their choice of doctors. California Labor Code 3550, 3551.
#2 Is the employer required to both (A) engage in ,a good faith “inter-active process” with Injured workers and (B) make reasonable accommodation”
YES. An employer’s failure to engage in a timely, good faith, interactive process with an employee to determine an effective reasonable accommodation for that employee with a known physical disability is a violation of State law. California Government Code Section 12940(m)(n) Reasonable accommodation may include, but is not limited to the following: Making existing facilities used by employees readily accessible to, and usable by individuals with disabilities; Job restructuring, part time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devises, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities
#3 Is it unlawful for an employer to discriminate or retaliate against a worker who is injured in the line of duty”
YES. Labor Code 132a. Some examples of cases handled by our firm: In one case, an L.A. City trash collector (who loved his job!) was removed from his job because of a doctor’s finding that he had lost 50% of his pre-injury lifting capacity. But the employer had no idea as to the worker’s pre-injury capacity. It just “assumed” that the average worker had a lifting capacity of 100 pounds – so that the “average person” with a 50% loss of lifting capacity could only lift up to 50 pounds, and thus could not meet the employers’ requirement to lift 60 pounds. But our client was not the “average person”. Neither are you. Neither am I. We are individuals We are entitled under the law to an individualized determination of our capabilities. After 17 months of litigation. The WCAB ordered the employer to reinstate the trash collector, pay his back wages, and a $10,000 penalty under Labor Code 132a.
Similarly, a County nurse working at LAC/USC was found to have a 25% loss of her pre-injury capacity for work. Again, the employer had no idea as to this worker’s pre-injury capacity – and thus the employer had no idea as to the worker’s capability with a 25% reduction from her pre-injury capacity. The employer just assumed she could not do the job. Remember what your mother told you about making assumptions? The employer should have listened to your mother. Instead, this nurse was wrongfully removed from her job. After trial, the WCAB ordered the County to reinstate the nurse, pay more than 16 months of back pay, and pay a $10,000 penalty. Then, in a separate action in U.S. District Court, a Federal judge entered a directed verdict in her favor under the Americans with Disabilities Act, and awarded her additional sums for her emotional distress litigation costs. Know your rights!
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Los Angeles, CA 90017
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