Broad Changes to California's Workers' Comp System
Significant changes to workers' compensation law and workers' rights were passed in April 2004. Here is an explanation of the major changes:
• Less weight given to treating doctor's report. There is no longer a presumption that the opinion of your treating doctor is correct -- no matter when you were injured or whether you predesignated your doctor. Your doctor's opinion is now no more important than that of a qualified medical evaluator (QME), to whom the insurance company may send you to settle a dispute. This change will likely result in more trials since your doctor's opinons will no longer be given more weight than the insuraance company's doctor.
• Limits on predesignating your doctor. While you can still predesignate the doctor you want to treat you in the case of a workplace injury, you may now predesignate only your regular, primary care physician who holds your medical records, and that physician must agree to the predesignation. In addition, your employer must provide group health coverage in a health care service plan or group health plan, for nonoccupational purposes. PLEASE NOTE: Predesignation must occur before you are injured at work. You may not predesignate after the injury for care on that injury.
• Immediate medical treatment required. Your employer (or its insurance company) is now required to authorize and agree to pay for your medical treatment until the insurance company either accepts or denies your claim. The insurance company must authorize the treatment within one day of your filing the DWC-1 claim form, but is liable for only $10,000 in medical treatment until it accepts or denies your claim. (LC § 5402(c).) This is one of the few positive aspects of the new law as injured workers should receive more timely treatment right after an injury.
• Treatment is now limited by standardized suidelines outlining what's "reasonable and appropriate." Employers (and their insurance companies) are now required to provide medical treatment only if the treatment is considered to be reasonable and appropriate, based upon guidelines that will be adopted by the Administrative Director of the Division of Workers' Compensation by 12/1/04. (LC § 5307.27.) Prior to the adoption of these new guidelines, the "Occupational Medicine Practice Guidelines," published by the American College of Occupational and Environmental Medicine (ACOEM), are the temporary standard to be used in diagnosing and treating your injury. The new guidelines may make it more difficult to prove a continuous trauma injury, because the guidelines may require scientific, verifiable tests to establish your injury. (LC § 4604.5 requires the guidelines to "reflect practices that are evidence and scientifically based.")
• Medical provider networks an option for employers. For injuries that occur in 2005 or later, your employer is allowed to set up a "medical provider network" from which you must choose a doctor when you need treatment for a work-related injury. (LC § 4616.) If your employer has set up a provider network, you cannot see a doctor of your own choosing unless you have predesignated your primary physician as your doctor. If you object to the network doctor's opinion regarding your medical treatment, you can request a second and third opinion within the network. If you are still not satisfied, you may submit an "independent medical review application" to the Administrative Director. If the review decides the disputed issue in your favor, you may choose to go to any doctor you choose for treatment (you are not limited to your employer's provider network in this case). If the review decides against you regarding the disputed issue, you have no other recourse.
• Time limits on temporary disability. For injuries that occur on or after 4/19/2004, there are now limits on how long you can receive temporary disability payments (wage-replacements benefits while you are off work). Temporary disability payments can now last a maximum of two years from the date they began (technically, "104 compensable weeks within a period of two years from the date of the commencement of temporary total disability payments"). This means that even if you collect temporary total disability for only two weeks during the first two years, you may not collect any more temporary total disability payments once the two-year period expires. (LC§ 4656.)
• Amendments to permanent disability schedule and benefits. A new permanent disability rating schedule becomes effective 1/1/2005. Some of the changes in the schedule may apply to all workers, regardless of their date of injury, while other changes may apply only to workers whose injuries occur after the schedule is amended. The new schedule will base the amount of your permanent disability rating on several new factors, including your diminished future earning capacity and the percentages of impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, 5th edition. For workers who are injured in 2005 or later, permanent disability benefits will increase and decrease according to certain factors:
• Permanent disability benefits for severely injured workers will be increased, and permanent disability benefits for workers with minor injuries will be decreased.
• • For employees of companies who employ 50 or more workers, if, within 60 days of your disability's becoming permanent and stationary, your employer does not offer you regular work, modified work, or alternative work for at least one year, your permanent disability payments will be increased by 15% (for the payments remaining to be paid to you, and starting from the end of the 60-day period).
  • For employees of companies who employ 50 or more workers, if, within 60 days of your disability's becoming permanent and stationary, your employer does offer you regular work, modified work, or alternative work for at least one year -- regardless of whether you accept or reject the offer -- each disability payment remaining to be paid to you from the date the offer is made will be decreased by 15%. If you accept the offer of work and your employer terminates it before the end of the period for which disability payments are due to you, the amount of each of the remaining payments will be increased by 15%.
• Doctors must determine portion of disability caused by other factors. Any doctor who writes a report that addresses the issue of permanent disability must speak to the issue of what caused the disability, and determine whether factors other than your work injury were involved in your current disability and what approximate percentage of the permanent disability was a direct result of your work injury. The doctor will also estimate what approximate percentage of the permanent disability was caused by other factors, both before and after your work injury. Note that if you have received a prior award of permanent disability from the workers' comp system, the doctor must find that your prior permanent disability still exists at the time of your current work injury, whether or not you have actually recovered. (LC § 4664(b).)
• Increased penalties against foot-dragging insurance carriers. Penalties against the insurance company for unreasonably delaying payment of your temporary or permanent disability benefits or your medical treatment have been increased to 25% of the value of the benefits or treatment.
• Changes to medical-legal evaluation and QME procedures. The procedures for obtaining a medical-legal evaluation and report have changed, mainly with regard to time frames, deadlines, and providing evidence to the QME. Refer to LC § 4062.1 if you do not have a lawyer, LC § 4062.2 if you do.
• For answers to frequently asked questions on the new law, or to read the text of the bill, see the Division of Workers' Compensation website at http://www.dir.ca.gov/dwc/wcreformindex.html.