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"Workers' Compensation in California: A guidebook for Injured Workers" describes the California workers' compensation system as of December 2002. Since that time, new laws have been enacted that change many rights and procedures for injured workers. Some of the laws will be clarified in clean-up legislation later this year. The guidebook will be revised based on the changes.
In the meantime, below is a description of the changes in law that will affect specific sections of the guidebook. This description is current as of May 17, 2004.
Chapter 1: : The basics of workers' compensation
"What are the benefits?" (see guidebook, page 7)
Vocational rehabilitation benefits are now available only to eligible workers who were injured before 2004, and will be available only through December 31, 2008.
Workers injured on or after January 1, 2004, who have a permanent disability caused by the injury may be eligible to receive "supplemental job displacement benefits" (vouchers) for education-related retraining or skill enhancement at state approved or accredited schools. (See chapter 6 below.)
"Can I choose the doctor who will treat me?" (see guidebook, page 8)
The guidebook describes the right to predesignate your personal physician in case of job injury. Previously, all workers could predesignate. Now, you can predesignate only if your employer offers a group health plan or group health insurance for medical conditions that are unrelated to work. If your employer does not offer this benefit, you no longer have the right to predesignate.
"How do I predesignate?" (see guidebook, page 8)
The guidebook explains that the doctor you predesignate must be a doctor of medicine (M.D.) or doctor of osteopathy (D.O.) who treated you in the past and has your medical records. Now, this doctor must also be your primary care physician and must agree to be predesignated.
"Why is the choice of doctor important?" (see guidebook, page 9)
Previously, the treating physician's findings and opinions were considered correct in most cases. This is no longer true. However, the treating doctor still plays an important role in prescribing medical care, determining when you can return to work, identifying the kinds of work you can do safely while recovering, referring you to specialists, and writing reports that affect the benefits you receive.
"Personal physician form" (see guidebook, page 10)
"Workers' compensation benefits for workers whose date of injury is 2003 or later" (see guidebook, page 11)
The state Division of Workers' Compensation must adopt a new schedule for rating permanent disabilities on or before January 1, 2005. This will change permanent disability (PD) benefit amounts for all workers whose date of injury is on or after the effective date of the new schedule, and some workers with an earlier date of injury
Chapter 2: After You Get Hurt on the Job
"The claims administrator hasn't accepted or denied my claim yet, but I need medical care for my injury now. What can I do?" (see guidebook, page 15)
While your new claim is being investigated, your employer is now required to authorize medical treatment for your injury within one working day after you file a claim form, for up to $10,000.
"Can I choose the doctor who will treat me for my job injury?" (see guidebook, page 15)
Predesignation:
The guidebook describes the right to predesignate your personal physician in case of job injury. Previously, all workers could predesignate their personal physician in case of job injury. Now, you can predesignate your personal physician only if your employer offers a group health plan or group health insurance for medical conditions that are unrelated to work. If your employer does not offer a group health plan or group health insurance for medical conditions that are unrelated to work, you no longer have the right to predesignate.
Switching doctors:
Currently, if you did not predesignate, you may switch to a doctor of your choice if you still need medical care 30 days after your employer learns about your injury. Note: There are different rules on switching doctors if your employer has a contract with a health care organization (HCO) to treat injured workers.
On or after January 1, 2005, employers and insurers will be allowed to establish state-approved "medical provider networks" to treat injured workers:
a. If your employer or the insurer establishes a medical provider network and you do not predesignate your personal physician, in most cases you will not be allowed to switch to a doctor of your choice outside the network. You will, however, be allowed to switch to a doctor of your choice within the network after the first medical examination of your injury.
b. If your employer or the insurer does not establish a medical provider network, the current rules on switching doctors will still apply (see above).
"I don't like the medical care I'm getting. Is there any way I can switch to a different doctor in the first 30 days?" (see guidebook, page 16)
In addition to the rules described in the guidebook, if your employer or the insurer establishes a medical provider network, you will be allowed to switch to a doctor of your choice within the network after the first medical examination of your injury.
"I don't agree with a medical report written by my treating doctor. What can I do?" (see guidebook, page 17)
The guidebook describes steps involving the state Industrial Medical Council (IMC). Previously, the IMC certified and regulated qualified medical evaluators (QMEs). The IMC has been eliminated, and its functions have been transferred to the state Division of Workers' Compensation (DWC).
In addition to the steps described in the guidebook, if you have an attorney and agreement cannot be reached on an agreed medical evaluator (AME), your attorney may contact the DWC for a panel (list) of three QMEs. Your attorney and the claims administrator may agree on an AME from this panel. If agreement still cannot be reached, your attorney and the claims administrator may each strike one name from the panel, and the remaining QME will conduct the evaluation.
If your employer or the insurer establishes a medical provider network and you wish to challenge the diagnosis or treatment prescribed by the physician in the network who is treating you, you will be allowed to obtain a second opinion within the network, a third opinion within the network, and an independent medical review administered by the DWC.
"If the claims administrator doesn't agree with a medical report, can he or she require me to be examined by a medical evaluator?" (see guidebook, page 18)
In addition to the steps described in the guidebook, if you have an attorney and agreement cannot be reached on an AME, the claims administrator may contact the DWC for a panel (list) of three QMEs. Your attorney and the claims administrator may agree on a medical evaluator from this panel. If agreement still cannot be reached, your attorney and the claims administrator may each strike one name from the panel, and the remaining QME will conduct the evaluation.
If the treating physician recommends spinal surgery, the claims administrator may object to the physician's report. If you are represented by an attorney, the claims administrator must seek your attorney's agreement on an orthopedic surgeon or neurosurgeon to give a second opinion. If agreement cannot be reached or if you are not represented by an attorney, the claims administrator may ask the DWC to randomly select an orthopedic surgeon or neurosurgeon to give a second opinion.
Additional changes in law that will affect chapter 2:
Medical treatment guidelines adopted by the DWC or published by the American College of Occupational and Environmental Medicine (ACOEM) are considered appropriate in most cases as to the extent and scope of medical treatment.
Workers injured on or after January 1, 2004, are limited to 24 chiropractic visits, 24 physical therapy visits, and 24 occupational therapy visits, unless the claims administrator authorizes additional visits.
Chapter 3: Temporary disability benefits
"Is the claims administrator required to pay a penalty for delays in TD payments?" (see guidebook, page 27)
If there is no reasonable excuse for the delay:
a. For delays occurring before June 1, 2004, you could be awarded a substantial extra payment.
b. For delays occurring on or after June 1, 2004, you could be awarded an additional 25 percent of the amount delayed, up to $10,000. (The penalties for delays before June 1, 2004, can exceed these limits.)
"When do TD payments end?" (see guidebook, page 27)
Previously, for workers injured after 1978, there was no limit on how long temporary total disability (TTD) payments lasted, and there was a five-year limit on temporary partial disability (TPD) payments. Now, for most workers injured on or after April 19, 2004, TD benefits (both TTD and TPD) will be paid only for up to two years. This new rule does not apply to workers with the following types of injuries: hepatitis B or C, amputations, severe burns, HIV, high-velocity eye injuries, chemical burns to the eyes, pulmonary fibrosis, or chronic lung disease.
Chapter 4: Working after your injury
"What happens if I don't fully recover?" (see guidebook, page 33)
The guidebook describes a letter from the claims administrator discussing your eligibility for vocational rehabilitation benefits. Vocational rehabilitation benefits are now available only to eligible workers who were injured before 2004, and will be available only through December 31, 2008. Workers injured on or after January 1, 2004, may be eligible to receive vouchers (see chapter 6 below).
Chapter 5: Permanent disability benefits
"What are permanent disability benefits?" (see guidebook, page 37)
The state Division of Workers' Compensation must adopt a new schedule for rating permanent disabilities on or before January 1, 2005. This will change PD benefit amounts for all workers whose date of injury is on or after the effective date of the new schedule, and some workers with an earlier date of injury. The new PD benefits will be based partly on "diminished future earning capacity," as shown in recent studies of actual, long-term losses in earnings experienced by workers in California with different types of injuries.
"What is a P&S report?" (see guidebook, page 38)
The guidebook lists what your treating doctor should include in a P&S report. For workers covered by the new schedule described above, the treating doctor's description of your medical problems and limits on the work you can do must be based on guidelines published by the American Medical Association (AMA).
The P&S report may discuss your eligibility for vocational rehabilitation benefits. Vocational rehabilitation benefits are now available only to eligible workers who were injured before 2004, and will be available only through December 31, 2008. Workers injured on or after January 1, 2004, may be eligible to receive vouchers (see chapter 6 below).
The P&S report must now estimate how much of your disability is caused by your job, compared to how much is caused by other factors (including other jobs). If this is not possible, the treating doctor must consult with another doctor or refer you to another doctor to estimate how much of your disability is caused by your job.
"What is a rating?" (see guidebook, page 38)
Ratings in the new schedule described above must be based partly on "diminished future earning capacity," as shown in recent studies of actual, long-term losses in earnings experienced by workers in California with different types of injuries.
Examples of ratings will be prepared and included in the guidebook based on the new schedule. Information about how to obtain the new schedule will also be included when available.
"How are PD payments determined?" (see guidebook, page 40)
For workers covered by the new schedule described above:
a. PD benefit amounts will be increased for the most severe disabilities (ratings of 72 percent or more) and decreased for less severe disabilities (ratings below 72 percent).
b. If your employer has 50 or more employees and offers you regular, modified, or alternative work lasting at least 12 months, your PD benefits will be decreased by 15 percent. Modified or alternative work must pay at least 85 percent of the wages you were receiving at the time of injury and be within a reasonable commuting distance of your residence at the time of injury.
c. If your employer has 50 or more employees and does not make the offer described above, your PD benefits will be increased by 15 percent.
"Is the claims administrator required to pay a penalty for delays in PD payments?" (see guidebook, page 42)
If there is no reasonable excuse for the delay:
a. For delays occurring before June 1, 2004, you could be awarded a substantial extra payment.
b. For delays occurring on or after June 1, 2004, you could be awarded an additional 25 percent of the amount delayed, up to $10,000. (The penalties for delays before June 1, 2004, can exceed these limits.)
Chapter 6: Vocational rehabilitation benefits
"What are vocational rehabilitation benefits?" (see guidebook, page 45)
Vocational rehabilitation benefits are now available only to eligible workers who were injured before 2004, and will be available only through December 31, 2008.
Workers injured on or after January 1, 2004, who have a permanent disability caused by the injury may be eligible to receive "supplemental job displacement benefits" (vouchers) for retraining or skill enhancement:
a. You may be eligible if you do not return to work for your employer within 60 days after temporary disability (TD) benefits end, unless the employer offers modified or alternative work within 30 days after TD benefits end.
b. Vouchers will be for education-related retraining or skill enhancement at state approved or accredited schools. The amount of the vouchers will depend on the your
rating or award for permanent partial disability (PPD):(1) Up to $4,000 for PPD awards less than 15 percent
(2) Up to $6,000 for PPD awards between 15 percent and 25 percent
(3) Up to $8,000 for PPD awards between 26 percent and 49 percent
(4) Up to $10,000 for PPD awards between 50 percent and 99 percent
Chapter 7: For more information and help
"State Industrial Medical Council (IMC)" (see guidebook, page 52)
This agency has been eliminated. Previously, the IMC certified and regulated qualified medical evaluators (QMEs). These functions have been transferred to the state Division of Workers' Compensation (DWC).
Glossary (see guidebook, page 61)
Industrial Medical Council (IMC)
This agency has been eliminated, and its functions have been transferred to the state Division of Workers' Compensation (DWC).
Modified job
This definition may be revised after the new laws are clarified in clean-up legislation.
Vocational rehabilitation
Vocational rehabilitation benefits are now available only to eligible workers who were injured before 2004, and will be available only through December 31, 2008. Workers injured on or after January 1, 2004, may be eligible to receive vouchers (see chapter 6 above).
