|2004 Workers Compensation Overhaul
This past spring, the Legislature overwhelmingly approved and Governor Schwarzenegger signed into law a bill aimed at reforming Californias ailing workers compensation system. Although the CPF was unable to support the legislation - SB 899 (Charles Poochigian, R-Fresno) - its enactment ultimately prevented a well-funded, anti-worker initiative from appearing on the November ballot.
Unfortunately, as negotiations between legislative leadership and the Governor progressed it became clear that certain take-aways would likely result. Organized labor worked tirelessly to minimize the affect that these take-aways will have on Californias injured workers.
As we reported to our members earlier this year, as signed into law SB 899:
Enables you to continue naming your current doctor as your treating physician if you do so prior to suffering a work-related injury, but only until 2007 - at that time the right to pre-designate sunsets. Throughout the process, the CPF strongly advocated in favor of maintaining a firefighters right to choose his or her own doctor, which they will be able to do, but only for the next couple of years;
Unlike before, requires your doctor to not only report on the nature and extent of your disability, but also on what caused it. Worse, you will now be required to disclose everything that has ever gone wrong with your body. As a result, an employer could declare that your disability was only partially work-related, thereby denying you benefits to which youd otherwise entitled;
Unlike before, allows you to receive immediate medical attention, but only up to $10,000 until your claim is determined to be work-related;
Repeals a section that formerly existed in the Labor Code encouraging the courts to err on the side of the injured worker. Subsequently, you could now find your rightful benefits denied even in a clear-cut case; and
Does not guarantee rate regulation. The primary complaint about workers compensation costs is that employer rates are escalating out of control. Despite this, no rate regulation was included in SB 899 and as a result, the bill does nothing to guarantee that employer rates will decrease. Insurers can continue to charge what the market will bear while injured workers lose protections and employers continue to pay the same high rates.
|10 Things Union Members Need to Know About Changes to the Workers Compensation System
Compiled by the California Labor Federation, AFL-CIO
Pre-designate your doctor before you get injured. If you have group health insurance, like Kaiser or Blue Cross, you can choose your doctor to treat your injury. You must complete and submit a personal physician form to you employer. Even if you have previously completed such a form, do it again because the laws have changed;
Injured workers will receive immediate medical treatment, up to a $10,000 cap, until their workers compensation claim is accepted or denied. Previously, injured workers had to wait sometimes up to 90 days for their claim to be accepted prior to getting medical care;
The most severely disabled workers will receive seven additional weeks of benefits for each percentage of disability rating over 70%. The least severely disabled workers will receive one week less of benefits for each percentage of disability rating below 15%;
Injured workers who cannot return to work will get a 15% increase in their permanent disability award. Injured workers who return to work will get 15% less in permanent disability benefits, provided that they keep their jobs for at least a year. Once back at work, if you lose your job through no fault of your own, you will get your full permanent disability award;
Temporary disability benefits will be limited to two years, although the vast majority of claims receive less than 2 years of TD benefits. Previously, injured workers could receive up to 5 years of TD benefits. Injured workers with specific injuries, like amputations or severe burns, will only be subject to a 5-year cap;
Unions and their employers can pursue alternative dispute resolution programs (carve-outs) to create an integrated system of medical treatment, also known as 24-hour care. Group health coverage and medical treatment for injured workers would be seamless. They can also negotiate to integrate temporary disability payments and non-industrial disability payments to create a seamless system of temporary wage replacement benefits without regard to how or where the injury occurred;
Employers will be eligible for financial incentives to take injured workers back to work. Worksites will be inspected by insurance companies as an additional check for safer workplaces;
Permanent disability benefits will be apportioned between work and non-work related causes. Injured workers will not get more than 100% disability rating for repeated injuries to the same body part. Temporary disability benefits and medical treatment will not be affected by the new apportionment rules. A worker whose cumulative injury is 30% caused by non-work related factors will receive only 70% of his/her permanent disability award;
A draconian anti-worker initiative, championed by Governor Schwarzenegger and the Chamber of Commerce, will not be on the November, 2004 ballot. This legislative compromise takes away the risk of losing the heart of our workers comp system;
The big winners of this compromise are profiteering insurance companies. Not only did they and their brokers escape any form of regulation, but they also exacted specific benefits in this legislation. We must sustain our efforts to re-regulate workers compensation insurance companies or this crisis will never be solved.
|Workers Compensation Reform FAQs
Compiled by the Department of Industrial Relations Division of Workers Compensation
Q. What is the effective date of Senate Bill 899?
A: Most sections of SB 899 became effective on April 19, 2004, the date it was signed into law by Governor Schwarzenneger. Some sections will become effective later on dates specified in the bill, and some sections are retroactive. Many provisions require that the Division of Workers Compensation adopt implementing regulations.
Q. How do we find out about the status of new regulations as they are developed?
A: Information on new or revised regulations will be posted on the DWC web site at http://www.dir.ca.gov/dwc throughout the rulemaking process That page has a link to an online discussion forum on proposed new rules (the DWC/WCAB Forum) as well as a link to a proposed rulemaking page, which provides the latest information about the status of proposed regulations needed to implement this bill. Also check the announcements page, where developments will be announced as they occur. DWC will continue to update these FAQs as more questions arise and more information is available.
Q: What does this bill mean to me?
A: This bill makes major changes to the states workers compensation system. It affects injured workers with an ongoing workers compensation claim or case before the Workers Compensation Appeals Board (WCAB), as well as all employees in general. It also affects employers, insurance carriers and medical providers. Some of the more common questions we have received to date from these groups are addressed below.
Q: Can I still predesignate my personal physician?
A: Predesignation is still possible, but only for employees whose employers provide non-occupational health insurance coverage through a group health plan, group health insurance policy, health care organization, or other specified entity. The physician must agree to be predesignated. DWC intends to adopt regulations relating to predesignation of personal physicians.
Q: Can I still change treating physicians after 30 days from the injury?
A: You can change your treating physician after 30 days unless your employer has established a medical provider network. On or after Jan. 1, 2005, an insurer or employer may establish a medical provider network.
Q: What form do I use to request a Qualified Medical Examiner (QME) panel?
A: Use the existing IMC Form 6 (revised 4/14/00) until new QME panel request forms are developed. The current form can be found on the DWC Medical Units site at www.dir.ca.gov/imc. In the future there will be two forms for requesting a QME panel, one for employees not represented by an attorney and one for represented employees.
Q: What are these new medical provider networks, and when do they go into effect?
A: Labor Code section 4600 provides that medical provider networks may be established by employers or insurers on or after Jan. 1, 2005. The network must meet certain standards. These include accessibility of care for common occupational injuries and illness, types of providers, continuity of care, medical decision making, and following treatment guidelines. The standards must also include a process for allowing employees a choice of provider in the network (after the first visit) and for getting second and third opinions. If an employer or insurer uses an approved medical provider network, covered employees would receive their medical care in this network, unless a predesignated physician is chosen prior to an injury. Medical provider networks must be approved by DWC before they can be used.
Q: I was injured on July 28, 2002, prior to the enactment of SB 899. Does the 104-week limit on temporary disability payments apply to my claim?
A: No. The 104 week cap on temporary disability payments applies to injuries that occur on or after April 19, 2004.
Q: After 30 days do I have the right to change treating doctors to another chiropractor when my first chiropractor has exceeded 24 treatments and the carrier will not authorize more?
A: The statutory provision relating to the right to change treating doctors after 30 days is separate from the provision capping chiropractic treatment at 24 visits. There is nothing in the statute that says an injured worker can receive more than 24 chiropractic visits merely because he or she wishes to change physicians.
Q: My date of injury is Jan. 2, 2004, and Ive seen my chiropractor 11 times already. Do these visits count toward the 24 visit cap?
A: Yes. The limitation on chiropractic visits applies to dates of injury on or after Jan. 1, 2004.
Q. My date of injury is Dec. 15, 2003. Do the limitations on chiropractic and physical therapy visits apply to my claim?
A: No. The limitation on chiropractic and physical therapy visits apply to dates of injury on or after Jan. 1, 2004. However, the American College of Occupational and Environmental Medicines (ACOEM) guidelines for medical treatment apply, regardless of the date of injury.
Q: When is the new permanent disability rating schedule (PDRS) going to be adopted and what cases will be affected?
A: Labor Code Section 4660 requires the DWC administrative director to adopt a new PDRS on or before Jan. 1, 2005. The statute states that the new schedule will apply to any case, regardless of date of injury, so long as none of the following events have occurred before the adoption date of the schedule: issuance of a comprehensive medical-legal report, issuance of a treating doctors report indicating permanent disability, or the employer has been required to issue the Section 4061 notice at the time of last payment of temporary disability. Labor Code section 4660 contains the specific statutory language.
Q: How else was my permanent disability affected by this bill?
A: Apportionment how an injured workers permanent disability can be reduced due to a prior award or condition was modified by SB 899. The bill requires that disability shall be based on causation and that all permanent disability reports consider what portion is attributable to the work injury. The bill also establishes a presumption that any prior award of permanent disability exists at the time of any later injury. Finally the bill allows no more than 100 percent in permanent disability for seven specified body parts over the employees lifetime.
Q: Does my treating doctor still have the presumption of correctness?
A: The presumption of correctness of the treating doctors opinion has been repealed for all cases regardless of the date of injury.
Q: Does SB 899 change the medical evaluation process for employees not represented by an attorney?
A: Yes. Unrepresented injured workers seeking workers compensation benefits must now select a Qualified Medical Evaluator (QME) from a panel of three evaluators provided by the DWC Medical Unit to resolve claims disputes on both accepted and denied cases. When requested by the insurance company, there is a ten-day time frame for the injured worker to submit the Request for QME form to the DWC Medical Unit. The Request for QME must indicate the QME specialty requested. If the unrepresented worker does not submit the Request for QME form to the DWC Medical Unit within the ten day time frame, the insurance company may submit the form and choose the specialty of the physician for the unrepresented worker. Within ten days after the DWC Medical Unit issues a panel of three QMEs, the employee has ten days to select a QME, make the appointment and communicate the information to the insurance company. If the employee fails to meet these time deadlines, the insurance company may choose the QME and the date and time for the appointment for the injured worker.
Q: Does SB 899 change the medical evaluation process for employees represented by an attorney?
A: Yes. However, the QME panel process for represented injured workers applies to injuries occurring on or after Jan. 1, 2005. In these cases, the parties must try to select an agreed medical examiner (AME). If no agreement is reached within ten days, either party may file a Request for QME form with the DWC Medical Unit. The Request for QME must indicate the QME specialty requested and the specialty of the treating physician if known. Within ten days after the DWC Medical Unit issues the panel of three QMEs, the parties have ten days to agree upon a QME selected from the panel to serve as an agreed medical evaluator (AME). If the parties do not agree on an AME by the tenth day, each party may then strike one name from the panel of QMEs. The remaining QME shall serve as the medical evaluator. A party loses the right to strike a QME from the list if the party fails to exercise its right to strike a QME within three working days of gaining the right to exclude an examiner.