CONTENTS

Background

A. Upon Hire
B. Soon After Injury
C. Benefit-Notice Letters
D. Possible Solutions

Objectives

A. Information from Employer Prior to Injury
B. Information from Employer Soon After Injury
C. Information Available from State Information & Assistance Offices
D. Information from Claims Administrator
E. Format of Benefit Notices

Recommendations

A. Legislative Proposal

1. Postings in the Workplace
2. New Employees' Written Information
3. Soon After Injury—Information from the Employer
4. Types of Injuries for Which Information Must Be Provided
5. Information from the State of California
6. Information from the Claims Administrator
7. Format of Benefit Notices

B. Content and Format of Claim Form and Accompanying Notice
C. Further Study Regarding the Clarity of Benefit Notices
D. Streamlining the Benefit Notice Process, Including Vocational Rehabilitation Notices
E. Study of Enforcement of Employers' Informational Requirements
F. Further Study of Waiting Periods for Acceptance or Denial of a Claim

 

APPENDIX — Draft of Proposed Legislation

Section 138.4 (Information from Claims Administrator)

Section 139.6 (Information from State of California)

Section 3550 (Posted Information in Workplace)

Section 3551 (Written Information for New Employees)

Section 3552 (Personal Physician Form) — repealed

Section 4061 (Permanent Disability Notices)

Section 5401 (Information from Employer Soon After Injury)

Background

In the California workers' compensation system, injured workers receive general information through both workplace postings and other educational materials, and claim-specific information through benefit-notice letters. Studies conducted by U.C. Berkeley's Labor Occupational Health Program have shown that both kinds of information are inadequate.

 

A. Upon Hire

Many new employees are not given essential, introductory information about workers' compensation upon hire. This includes, for example: the right to designate one's personal physician in case of job injury; how to get emergency medical treatment if needed; and how to report a job injury to the employer.

Employers are required to post some of this information conspicuously in the workplace and also provide the information in writing. However, it appears that no governmental agency directly enforces these requirements.

 

B. Soon After Injury

Immediately after a job injury, many employees are not given sufficient instructional information about the claims process. This includes, for example: how to request workers' compensation benefits; what happens with the claim form after it is filed; from whom the employee can obtain medical care for the injury; the role and function of the primary treating physician; rights to select and change the primary treating physician; and sources of information and help.

Employers are required to give only some of this information to newly injured employees. In addition, it appears that no governmental agency directly enforces these legal requirements as they apply to employers.

Likewise, claims administrators are required to provide only some of this information. Furthermore, they are only required to send it to the claimants to whom they send benefit-notice letters. This does not include every worker who is entitled to receive workers' compensation benefits or who has a serious injury. For example, in the period soon after an injury, a claims administrator is not required to send any letters to the injured worker if the claims administrator is paying for medical care without delay and the worker does not need temporary disability (TD) benefits—even if the worker is later found to have sustained a permanent disability because of the injury.

 

C. Benefit-Notice Letters

Many injured workers in the workers' compensation system (and workers' dependents, in the case of death) receive benefit-notice letters that are flawed in the following ways: rationale for decisions and other important kinds of information are not explained clearly; language on further information, help, and claimants' remedies is vague, unclear, sometimes inaccurate, and inappropriately sent as personalized messages; irrelevant information is included; and difficult-to-understand terms and phrases are used.

In some cases, notices accepting or denying a claim are sent 90 days after the claim form was filed. Injured workers who must wait 90 days for a determination regarding compensability often cannot obtain medical care in that period. This is because Labor Code section 3751 prohibits medical care providers from collecting payment from an injured worker if the provider knows that the worker has a pending workers' compensation claim. Without medical treatment in this initial 3-month period, injured workers face aggravation of their injuries and possible long-term deterioration of their health. These problems contribute to distrust and unnecessary disputes between the parties.

Many injured workers receive benefit notices that contain important and potentially upsetting news about their injuries or about the possibility that they could lose their jobs. These include the following: notices discussing permanent disability status; and notices discussing potential rights to vocational rehabilitation. Often these notices are the first pieces of information sent to an injured worker that explain, in specific terms, the permanent disability system or the return-to-work process. Without prior efforts to fully educate injured workers about significant events that could occur in a claim, many workers feel that receiving such information (after-the-fact) in a benefit-notice letter is too sudden and abrupt.

 

D. Possible Solutions

Project advisors and injured-worker participants have provided important information and have offered opinions and recommendations on when different kinds of information should be given to injured workers. Many people feel that comprehensive, accurate, timely, and understandable information should be provided by employers and claims administrators, and that this information should be developed and made available by the State of California.

The following proposed amendments to Labor Code sections 138.4, 139.6, 3550, 3551, 3552, 4061, and 5401 are directed at improving the information given, and made available, to injured workers.

 

Objectives

The objectives that would be attained by the proposed legislation and by regulations adopted pursuant to the legislation are as follows:

 

A. Information from Employer Prior to Injury

Prior to injury, all workers will have basic, introductory information about workers' compensation. This will include, for example: the right to designate one's personal physician prior to injury; how to get emergency medical treatment if needed; and how to report a job injury. The information will be posted in the workplace and given to new employees in writing.

 

B. Information from Employer Soon After Injury

Soon after injury, injured workers who are entitled to receive a claim form will be given practical, instructional information. This will include, for example: how to request workers' compensation benefits; what happens with the claim form after it is filed; from whom the employee can obtain medical care for the injury; the role and function of the primary treating physician; and sources of information and help. The information will be contained on the reverse side of the claim form, and the claim form will instruct the injured worker to read the reverse side.

 

C. Information Available from State Information & Assistance Offices

A comprehensive guide advising employees about the California workers' compensation system will be available from state Information & Assistance offices. (This will expand upon the information currently required under Labor Code section 139.6.)

 

D. Information from Claims Administrator

If the employer did not give an injured worker who is entitled to receive a claim form the instructional information described in B, above, the claims administrator will provide it to the worker. (This will clarify an existing requirement that claims administrators provide an injured worker with the instructional information that is contained on the reverse side of the claim form, if the employer failed to do so. The existing requirement is set forth in the California Code of Regulations, title 8, sections 10117, 10118, and 10119.)

For injured workers who are sent benefit-notice letters, the claims administrator will include, with the first letter, a comprehensive guide about the workers' compensation system. (This will simply modify an existing requirement that claims administrators include an "information pamphlet" with the first benefit-notice letter sent to a claimant. The existing requirement is set forth in Labor Code section 138.4(a) and the California Code of Regulations, title 8, sections 9810(d), 9812, and 9813.)

 

E. Format of Benefit Notices

The basic information and concepts given in the comprehensive guide described in D, above, will not be repeated within the main body of benefit-notice letters. Instead, the letters will refer the injured worker to relevant portions of the comprehensive guide.

Information regarding the claimant's remedies and the right to consult with a state Information & Assistance officer or an applicants' attorney (which will be given in the comprehensive guide described in D, above) will not be repeated within the main body of benefit-notice letters. Instead, each benefit notice will be accompanied, outside the main body of the letter, by brief statements describing the right to disagree with a decision and how to contact an I&A officer or the State Bar of California. (This will revise existing requirements to include -- within benefit notices -- vague, difficult-to-understand language describing remedies, I&A services, and attorneys. The existing requirements are set forth in Labor Code sections 138.4 and 4061 and the California Code of Regulations, title 8, sections 9811(f), 9812, and 9813.)

 

Recommendations

The following legislative changes, regulatory proposals, and additional studies are recommended to attain these objectives.

 

A. Proposed Legislation

The proposed legislative changes would:

 

1. Postings in the Workplace:

Require the employer to post the following additional information in the workplace:

a. How to get emergency medical treatment, if needed.
b. The kinds of events, injuries, and illnesses covered by workers' compensation.
c. The existence of time limits for the employer to be notified of an occupational injury.
d. Protections against discrimination pursuant to Section 132a.

(See proposed Labor Code § 3550.)

 

2. New Employees' Written Information:

Require the employer to provide the following additional information to new employees:

a. How to get emergency medical treatment, if needed.
b. The kinds of events, injuries, and illnesses covered by workers' compensation.
c. The existence of time limits for the employer to be notified of an occupational injury.
d. Protections against discrimination pursuant to Section 132a.
e. How to obtain appropriate medical care for a job injury, generally.
f. Role and function of the primary treating physician.
g. A form that the employee may use as an optional method for notifying the employer of the name of the employee's "personal physician," as defined by Section 4600.

(See proposed Labor Code § 3551.)

 

3. Soon After Injury—Information from the Employer:

Require the employer to provide the following additional information, upon receiving notice or knowledge of an occupational injury:

    a. Description of the different types of workers' compensation benefits.

    b. What happens with the claim form after it is filed.

    c. From whom the employee can obtain medical care for the injury.

    d. Role and function of the primary treating physician.

    e. Rights to select and change the treating physician pursuant to the provisions of Sections 3550(e) and 4600.

    f. How to get medical care while the claim is pending.

    g. Protections against discrimination pursuant to Section 132a.

    h. Written statements that describe the right to disagree with decisions and how to contact state Information & Assistance services or the State Bar of California.

(See proposed Labor Code § 5401.)

 

4. Types of Injuries for Which Information Must Be Provided:

Define "lost time" as time lost beyond the employee's work shift at the time of injury instead of the date of injury. Clarify the definition of "first aid" to be consistent with regulations requiring employers to maintain records of occupational injuries and illnesses (see 8 Cal. Code Regs. § 14311).

(See proposed Labor Code § 5401(a).)

 

5. Information from the State of California:

In addition to the information currently required to be provided, require the administrative director to publish and make available the following information:

a. Time limits for an employer to be notified of an occupational injury; consequences if employer is not notified within time limit.

b. How decisions are made on whether benefits will be provided; what happens with the claim form after it is filed.

c. The injured employee’s right to receive medical care that is reasonably required to cure or relieve from the effects of a job injury.

d. From whom an employee can obtain medical care for a job injury.

e. Role and function of the primary treating physician.

f. Rights to select and change the treating physician pursuant to the provisions of Sections 3550(e) and 4600.

g. How to get medical care while a claim is pending.

h. Purpose of comprehensive medical evaluations; how to request a comprehensive medical evaluation; possible consequences of obtaining a comprehensive medical evaluation.

i. Right to have another person present during medical examinations.

j. Right to request and receive copies of medical reports pursuant to rules and regulations adopted by the administrative director, and pursuant to Health and Safety Code sections 123100-123149.5.

k. Steps to help an injured employee return to work; how decisions are made on what work will be assigned while the employee is recovering; modified or alternative work that may be offered to an employee who has a permanent disability.

l. Criteria for the beginning and ending of temporary disability benefits; the waiting period for the first temporary disability payment; amount and frequency of temporary disability payments; how the payment amount is determined, including calculation of overtime pay and pay from other jobs.

m. Criteria for the beginning and ending of permanent disability benefits; amount and frequency of permanent disability payments; how the amount of individual permanent disability payments and the total amount of permanent disability benefits are determined.

n. Importance of "permanent & stationary" medical report and how it affects permanent disability benefits; importance of a rating and how it affects permanent disability benefits; significance of a job title and how it affects ratings.

o. How permanent disability advances reduce a final award or settlement; consequences of settling through a "compromise & release" or with "stipulations with request for award."

p. Criteria for the beginning and ending of vocational rehabilitation services and payments; the monetary limit on vocational rehabilitation benefits pursuant to Section 139.5; amount and frequency of vocational rehabilitation maintenance allowance payments; how the payment amount is determined.

q. Significance of an employee's job description or a job analysis and how it affects vocational rehabilitation benefits.

r. Criteria for paying death benefits; how the amount of death benefits is determined.

s. Rights to increased workers' compensation payments or an increased workers' compensation award if payments are delayed.

t. Whom in claims administration a claimant can call for information; the extent to which a claims administrator can give information if the claimant is represented; what the claimant can do if the claims administrator is difficult to reach by telephone.

u. Right to consult a state information and assistance officer or attorney, or both, for assistance; telephone number of the division's information and assistance services; telephone number of the State Bar of California's legal specialization program.

v. Right to dispute a decision and steps that can be taken if the claimant disagrees with a decision; role of workers' compensation administrative law judges; role of the Workers' Compensation Appeals Board.

w. Other sources of information and help in workers' compensation.

x. Other systems that may provide benefits and assistance to injured employees (or dependents), including, but not limited to, unemployment compensation disability benefits (State Disability Insurance).

(See proposed Labor Code § 139.6(a).)

 

6. Information from the Claims Administrator:

Define "claims administrator" as defined in existing regulations (see 8 Cal. Code Regs. § 10100.1(i)). Require the claims administrator to provide a claim form and notice of potential eligibility for benefits, if the employer failed to do so. This clarifies existing regulations that require claims administrators to provide these materials if the employer failed to do so (see 8 Cal. Code Regs. §§ 10117, 10118, 10119).

Require the claims administrator to include, with the first benefit notice sent to the claimant, a comprehensive guide that has been published or approved by the administrative director. This modifies an existing requirement that claims administrators send an "information pamphlet" to every claimant who is entitled to receive benefit notices (see Labor Code § 138.4(a); 8 Cal. Code Regs. §§ 9810(d), 9812, 9813).

(See proposed Labor Code § 138.4.)

 

7. Benefit Notices from the Claims Administrator:

Relieve the claims administrator of obligations to repeat, within the main body of benefit-notice letters, basic information and concepts that will be given in the comprehensive guide described in 6, above. Instead, require the claims administrator to refer the injured worker to relevant portions of the comprehensive guide previously provided.

Relieve the claims administrator of obligations to repeat, within the main body of benefit-notice letters, information (which will be given in the comprehensive guide described in 6, above) regarding remedies, state Information & Assistance services, and applicants' attorneys. Instead, require the claims administrator to include, outside the main body of benefit-notice letters, brief statements that describe the right to disagree with decisions and how to contact an Information & Assistance officer or the State Bar of California. This revises existing requirements for benefit-notice letters to contain vague, difficult-to-understand language describing claimants' remedies, I&A services, and attorneys (see Labor Code §§ 138.4, 4061(b); 8 Cal. Code Regs. §§ 9811(f), 9812, 9813).

Retain the requirement (in 8 Cal. Code Regs. § 9812(g)(2), (3)) that the claims administrator provide, along with notices that no permanent disability indemnity will be paid and notices of the amount of permanent disability indemnity payable, the form prescribed by the Industrial Medical Council for requesting assignment of a panel of Qualified Medical Evaluators (unless the employee is represented by an attorney).

(See proposed Labor Code §§ 138.4(d), (e); 4061(a), (b).)

 

B. Content and Format of Claim Form and Accompanying Notice

There is widespread agreement that the California workers' compensation system is complicated and confusing. Projects conducted for the Commission by U.C. Berkeley's Labor Occupational Health Program (LOHP) confirm that preparing materials for injured workers that explain the workers' compensation system clearly, accurately, thoroughly, and concisely is a daunting task.

It is recommended that in developing a claim form and notice of potential eligibility for benefits to implement the legislation proposed for Labor Code section 5401, the administrative director work in close consultation with the Commission to ensure that these materials are as useable and understandable as possible for injured workers.

 

C. Further Study Regarding the Clarity of Benefit Notices

Advisors to projects conducted for the Commission have expressed concerns as to whether it is possible for claims administrators to clearly explain their rationale for important decisions in a claim, and whether it would be possible to enforce regulations in the future, if any, that require claims administrators to do so. Outside of workers' compensation, however, if an insurer denies all or a portion of a claim (where the policyholder is the claimant), the insurer is required to state in writing all of the bases for the denial, as well as the factual and legal bases for each reason that is given for the denial which is within the insurer's knowledge. (See 10 Cal. Code Regs. § 2695.7.)

Other advisors have recommended that the state Audit Unit provide training and guidance to claims administrators on how to clearly explain, in benefit notices, the rationale for important decisions in a claim. Some advisors have also recommended that benefit notices be standardized industry-wide, to reduce confusion when a claim is handled by different claims administrators.

It is recommended that options be explored regarding educational, regulatory, and other methods to ensure that benefit notices explain the rationale for decisions as clearly as possible.

 

D. Streamlining the Benefit Notice Process, Including Vocational Rehabilitation Notices

The Commission has recommended that a committee be established to review and make recommendations on streamlining the benefit notice process, reducing requirements, and ensuring that notices accurately and effectively communicate with injured workers in a format and language that is comprehensible. The Commission notes that particular attention should be focused on the requirements for notification of potential eligibility for vocational rehabilitation, because these notices are the most commonly cited for violations and affect the most seriously injured workers. (See "CHSWC Report on the Division of Workers' Compensation Audit Unit Functions," December 1998, pp. 27-28.) Findings by LOHP confirm that benefit notices concerning vocational rehabilitation are particularly confusing and upsetting to injured workers.

In addition, preliminary findings from Commission studies show that the current system of vocational rehabilitation benefits may not be completely successful in returning injured workers to sustained employment. The Commission has therefore recommended that a Vocational Rehabilitation Roundtable of interested members of the workers' compensation community be established to review vocational rehabilitation. (See "Annual Report of the California Commission on Health and Safety and Workers' Compensation, 1998-99," pp. 7, 55-56.)

It is recommended that no changes be made at this time to Labor Code sections 4636 and 4637, which govern notices of potential rights to vocational rehabilitation and notices of potential eligibility for vocational rehabilitation. As the Commission and members of the workers' compensation community continue to study and review vocational rehabilitation benefits, changes in those benefits may dictate necessary changes in the related notices.

In the meantime, however, it is recommended that the administrative director work in consultation with the Commission to establish a committee, as described above, to explore and study possible options for streamlining the benefit notice process, as well the potential impact of any proposed changes on injured workers, employers, and others.

 

E. Study of Enforcement of Employers' Informational Requirements

As discussed above, it appears that no governmental agency directly enforces the laws that require employers to (1) post introductory information in the workplace, (2) give written information to new employees, and (3) give a claim form and accompanying notice of potential eligibility for benefits to newly injured employees. It is widely perceived that many employers do not comply with these requirements, and that lack of early information contributes to problems later in a claim.

The state Division of Occupational Safety and Health (DOSH) has jurisdiction to enforce Labor Code section 6431, which allows assessment of a civil penalty of up to $7,000 for failure to post the workers' compensation information that is required by section 3550. However, the state Occupational Safety and Health Appeals Board has held that DOSH cannot enforce sections of the Labor Code directly. The Appeals Board reasoned that under Labor Code section 6317, DOSH is only authorized to issue citations for a violation of a "standard, rule, order, or regulation." (See In Re Aqua Seal, San Diego, Docket No. 96-R3D2-4015; In Re DSW Distribution Centers, Inc., Cerritos, Docket Nos. 97-R3D5-143-145; In Re United Riggers & Erectors, Inc., Santa Fe Springs, Docket Nos. 97-R3D5-146-149; OSHAB Decisions After Reconsideration (April 8, 1998).)

The state Division of Labor Standards Enforcement (DLSE) issues stop orders on employers that fail to secure workers' compensation insurance, and DLSE regards an employer's failure to comply with the workers' compensation posting requirement as prima facie evidence of noninsurance. (See Labor Code §§ 3550(b), 3710.1.) It appears, however, that DLSE does not enforce the posting requirement itself (in Labor Code § 3550), and does not assess civil penalties under Labor Code section 6431 for failure to post.

It is therefore recommended that the Commission and the workers' compensation community explore the following possible options:

• Revising the Labor Code to enable DOSH to enforce Labor Code section 6431 during its inspections of workplaces.

• Broadening Labor Code section 6431 to include violations of Labor Code section 3551 (which governs written information for new employees) and Labor Code section 5401 (which governs the employer's processing of the claim form and accompanying notice to be given to newly injured employees).

• Determining DLSE's practices with regard to all of the above informational requirements, and developing and adopting regulations, if necessary, to enable DLSE to enforce the requirements.

 

F. Further Study of Waiting Periods for Acceptance or Denial of a Claim

Under Labor Code section 5402, an unanswered claim is not "presumed compensable" until 90 days has passed since the date the claim form was filed. Many injured workers and persons and organizations that serve injured workers perceive that claims administrators commonly wait the full 90 days before accepting a claim. As discussed above, injured workers who must wait 90 days for a determination regarding compensability often cannot obtain medical care in that period. In this initial period, medical care providers are prohibited from collecting payment from an injured worker if the provider knows that the worker has a pending workers' compensation claim (see Labor Code § 3751). Without medical treatment in this initial 3-month period, injured workers face aggravation of their injuries and possible long-term deterioration of their health. These problems contribute to distrust and unnecessary disputes between the parties.

It is therefore recommended that the Commission and the workers' compensation community explore possible solutions to ameliorate this long waiting period to receive medical care for job injuries. Possible solutions could involve, for example:

• Shortening the period (in Labor Code § 5402) in which an unanswered claim becomes presumably compensable.

• Creating other incentives for claims administrators to promptly accept a compensable claim.

• Creating clear disincentives for claims administrators to wait the full 90 days before accepting a claim.

• Requiring "provisional" or "presumptive" medical care during the waiting period.

 

Appendix — Draft of Proposed Legislation

§ 138.4. Injuries involving loss of time resulting in lost time beyond the employee's work shift at the time of injury or medical treatment beyond first aid.

(a) For the purpose of this section, "claims administrator" means a self-administered workers' compensation insurer; or a self-administered self-insured employer; or a self-administered legally-uninsured employer; or a self-administered joint powers authority; or a third-party claims administrator for an insurer, a self-insured employer, a legally-uninsured employer, or a joint powers authority.

(b) With respect to injuries resulting in lost time beyond the employee's work shift at the time of injury or medical treatment beyond first aid:

(1) If the claims administrator obtains knowledge that the employer has not provided a claim form or a notice of potential eligibility for benefits to the employee, it shall provide the form and notice to the employee within three working days of its knowledge that the form or notice was not provided.

(2) If the claims administrator cannot determine if the employer has provided a claim form and notice of potential eligibility for benefits to the employee, the claims administrator shall provide the form and notice to the employee within 30 days of the administrator's date of knowledge of the claim.

(c) The administrative director shall, with respect to injuries involving loss of time: (a) Prescribe prescribe reasonable rules and regulations for the serving on the employee (or employee's dependents, in the case of death), with copies to the administrator director: benefit notices dealing with the payment, nonpayment or delay in payment of temporary disability, permanent disability, and death benefits and the provision of vocational rehabilitation services, with copies to the administrative director.; notices of any change in the amount or type of benefits being provided, the termination of benefits, and an accounting of the benefits paid; and notices of rejection of any liability for compensation.

(d) A pamphlet comprehensive guide published or approved by the administrative director, meeting the criteria specified in subdivision (a) of Section 139.6, shall be included with the first notice of payment, or notice of delay in payment, notice of nonpayment, or notice of rejection of any liability served on each injured employee claimant. Each benefit notice required under subsection (c), above, shall refer the claimant to the relevant portions of the comprehensive guide required in this subsection. Additional copies of the comprehensive guide shall be provided to claimants upon request.

(b) Prescribe reasonable rules and regulations for providing the employee notice of any change in the amount or type of benefits being provided, the termination of benefits, and an accounting of the benefits paid, with copies to the administrative director.

(c) Prescribe reasonable rules and regulations for serving on the employee notice of rejection of any liability for compensation and the remedies available to the employee, and the employee's right to seek information and advice from an information and assistance officer or attorney.

(e) Compliance with subdivision (d), above, relieves the claims administrator of the obligation to provide, within the main body of benefit-notice letters, the basic information and concepts contained in the comprehensive guide. However, every benefit notice required by this section shall be accompanied, outside the main body of the letter, by the following written statements, printed in at least 12-point font size:

(1) You have a right to disagree with decisions affecting your claim. For more information about this, see [title of the comprehensive guide required in subdivision (d), above, and relevant sections or page numbers].

(2) You can obtain free information from an Information & Assistance officer of the state Division of Workers' Compensation by calling [telephone number of nearest I&A office]. Or, you can hear recorded information by calling [applicable I&A telephone number(s)].

(3) You can consult an attorney. Most attorneys offer one free consultation. If you decide to hire an attorney, his or her fee will be taken out of some of your benefits later. For names of workers' compensation attorneys, call the State Bar of California at [telephone number of the State Bar of California's legal specialization program, or equivalent].

 

§ 139.6. Program to provide workers' compensation information.

(a) The administrative director shall establish and effect within the Division of Workers’ Compensation a continuing program to provide information and assistance concerning the rights, benefits, and obligations of the workers’ compensation law to employees and employers subject thereto. The program shall include, but not be limited to, the following:

(1) The preparation, publishing, and as necessary, updating, of a guides to the California workers’ compensation system for employees and employers. The guides shall detail, in easily understandable language, the rights and obligations of employees and employers, the procedures for obtaining benefits, and means provided for resolving disputes. Separate guides may be prepared for employees and employers. The appropriate guide shall be provided to all labor and employer organizations known to the administrative director, and to any other person upon request.

(2) The preparation, publishing, and as necessary, updating, of a pamphlet comprehensive guide advising injured workers of their basic rights under workers' compensation law, and informing them of rights under the Americans with Disabilities Act, and the provisions of the Fair Employment and Housing Act relating to individuals with a disability. The pamphlet shall be written in easily understandable language. The pamphlet shall be available in both English and Spanish, and shall include basic information concerning the circumstances under which injured employees are entitled to the various types of workers' compensation benefits, the protections against discrimination because of an injury, the procedures for resolving any disputes which arise, and the right to seek information and advice from an information and assistance officer or an attorney. The guide shall be easily understandable and available in both English and Spanish. It shall be provided to all labor and employer organizations known to the administrative director, and to any other person upon request. The administrative director shall prepare and publish the guide after consultation with the Commission on Health and Safety and Workers' Compensation. The content shall include, but not be limited to:

(A) The kinds of events, injuries, and illnesses covered by workers' compensation.

(B) Time limits for an employer to be notified of an occupational injury; consequences if employer is not notified within time limit.

(C) How to fill out and file a claim form.

(D) How decisions are made on whether benefits will be provided; what happens with the claim form after it is filed.

(E) The injured employee’s right to receive medical care that is reasonably required to cure or relieve from the effects of a job injury.

(F) From whom an employee can obtain medical care for a job injury.

(G) Role and function of the primary treating physician.

(H) Rights to select and change the treating physician pursuant to the provisions of Sections 3550(e) and 4600.

(I) How to get medical care while a claim is pending.

(J) Purpose of comprehensive medical evaluations; how to request a comprehensive medical evaluation; possible consequences of obtaining a comprehensive medical evaluation.

(K) Right to have another person present during medical examinations.

(L) Right to request and receive copies of medical reports pursuant to rules and regulations adopted by the administrative director, and pursuant to Health and Safety Code sections 123100-123149.5.

(M) Rights to receive temporary disability indemnity, permanent disability indemnity, vocational rehabilitation services, and death benefits, as appropriate.

(N) Steps to help an injured employee return to work; how decisions are made on what work will be assigned while the employee is recovering; modified or alternative work that may be offered to an employee who has a permanent disability.

(O) Criteria for the beginning and ending of temporary disability benefits; the waiting period for the first temporary disability payment; amount and frequency of temporary disability payments; how the payment amount is determined, including calculation of overtime pay and pay from other jobs.

(P) Criteria for the beginning and ending of permanent disability benefits; amount and frequency of permanent disability payments; how the amount of individual permanent disability payments and the total amount of permanent disability benefits are determined.

(Q) Importance of "permanent & stationary" medical report and how it affects permanent disability benefits; importance of a rating and how it affects permanent disability benefits; significance of a job title and how it affects ratings.

(R) How permanent disability advances reduce a final award or settlement; consequences of settling through a "compromise & release" or with "stipulations with request for award."

(S) Criteria for the beginning and ending of vocational rehabilitation services and payments; the monetary limit on vocational rehabilitation benefits pursuant to Section 139.5; amount and frequency of vocational rehabilitation maintenance allowance payments; how the payment amount is determined.

(T) Significance of an employee's job description or a job analysis and how it affects vocational rehabilitation benefits.

(U) Criteria for paying death benefits; how the amount of death benefits is determined.

(V) Rights to increased workers' compensation payments or an increased workers' compensation award if payments are delayed.

(W) Protections against discrimination pursuant to Section 132a.

(X) Whom in claims administration a claimant can call for information; the extent to which a claims administrator can give information if the claimant is represented; what the claimant can do if the claims administrator is difficult to reach by telephone.

(Y) Right to consult a state information and assistance officer or attorney, or both, for assistance; telephone number of the division's information and assistance services; telephone number of the State Bar of California's legal specialization program.

(Z) Right to dispute a decision and steps that can be taken if the claimant disagrees with a decision; role of workers' compensation administrative law judges; role of the Workers' Compensation Appeals Board.

(AA) Other sources of information and help in workers' compensation.

(BB) Other systems that may provide benefits and assistance to injured employees (or dependents), including, but not limited to, unemployment compensation disability benefits (State Disability Insurance).

(b) In each district office [NO CHANGE].

(c) Each information and assistance officer [NO CHANGE].

 

§ 3550. Posting of notice; failure to post.

(a) Every employer subject to the compensation provisions of this division shall post and keep posted in a conspicuous location frequented by employees, and where the notice may be easily read by employees during the hours of the workday, a notice which shall state the name of the current compensation insurance carrier of the employer, or when such is the fact, that the employer is self-insured, and who is responsible for claims adjustment.

(b) Failure to keep any notice required by this section conspicuously posted shall constitute a misdemeanor, and shall be prima facie evidence of noninsurance.

(c) This section shall not apply with respect to the employment of employees as defined in subdivision (d) of Section 3351.

(d) The form and content of the notice required by this section shall be prescribed by the administrative director after consultation with the Commission on Health and Safety and Workers' Compensation and shall advise employees that all injuries should be reported to their employer. The notice shall also include, in nontechnical language, advice as to be easily understandable. It shall be posted in both English and Spanish where there are Spanish-speaking employees. The content shall include:

(1) How to get emergency medical treatment, if needed.

(2) The kinds of events, injuries, and illnesses covered by workers' compensation.

(3) the The injured employee’s right to receive medical care,.

(4) Rights to select or and change the treating physician pursuant to the provisions of Section 4600, and.

(5) the right Rights to receive temporary disability indemnity, permanent disability indemnity, vocational rehabilitation services, and death benefits, as appropriate.

The notice shall also identify

(6) to To whom injuries should be reported, and.

(7) The existence of time limits for the employer to be notified of an occupational injury.

(8) Protections against discrimination pursuant to Section 132a.

(9) the The location and telephone number of the nearest information and assistance officer.

(e) Failure of an employer to provide the notice required by this section shall automatically permit the employee to be treated by his or her personal physician with respect to an injury occurring during that failure.

(f) The form and content of the notice required to be posted by this section may shall be made available to self-insured employers and insurers by the administrative director. Insurers shall provide this notice to each of their policyholders, with advice concerning the requirements of this section and the penalties for failure to post this notice.

 

§ 3551. Written notice to new employee.

(a) Every employer subject to the compensation provisions of this code, except employers of employees defined in subdivision (d) of Section 3351, shall give every new employee, either at the time the employee is hired or by the end of the first pay period, written notice of the information contained in Section 3550. The content of the notice required by this section shall be prescribed by the administrative director after consultation with the Commission on Health and Safety and Workers' Compensation.

(b) The notice required by this section shall be easily understandable and available in both English and Spanish. In addition to the information contained in Section 3550, the content of the notice required by this section shall include:

(1) How to obtain appropriate medical care for a job injury, generally.

(2) Role and function of the primary treating physician.

(3) A form that the employee may use as an optional method for notifying the employer of the name of the employee's "personal physician," as defined by Section 4600.

(c) The content of the notice required by this section shall be made available to employers and insurers by the administrative director. Insurers shall provide this notice to each of their policyholders, with advice concerning the requirements of this section and the penalties for failure to provide this notice to all employees.

 

§ 3552. Providing "personal physician" form.

Upon the request of any employee, an employer shall provide the employee with an appropriate form on which the employee may indicate the name of his or her "personal physician," as defined by Section 4600.

 

§ 4061. Medical evaluation of permanent impairment or limitations.

(a) Together with the last payment of temporary disability indemnity, the employer shall, in a form prescribed by the administrative director pursuant to Section 138.4, provide the employee one of the following:

(1) Notice either that no permanent disability indemnity will be paid because the employer alleges the employee has no permanent impairment or limitations resulting from the injury or notice of the amount of permanent disability indemnity determined by the employer to be payable. The notice shall include information concerning refer the employee to the relevant portions of the comprehensive guide, required by subdivision (c) of Section 138.4, that explain how the employee may obtain a formal medical evaluation pursuant to subdivision (c) if he or she disagrees with the position taken by the employer. The notice shall be accompanied by the form prescribed by the Industrial Medical Council for requesting assignment of a panel of Qualified Medical Evaluators, unless the employee is represented by an attorney. If the employer determines permanent disability indemnity is payable, the employer shall advise the employee of the amount determined payable and the basis on which the determination was made and whether there is need for continuing medical care.

(2) Notice that permanent disability indemnity may be or is payable, but [NO CHANGE].

(b) Each notice required by subdivision (a) shall describe the administrative procedures available to the injured employee and advise the employee of his or her right to consult an information and assistance officer or an attorney. It shall contain the following language: "Should you decide to be represented by an attorney, you may or may not receive a larger award, but, unless you are determined to be ineligible for an award, the attorney's fee will be deducted from any award you might receive for disability benefits. The decision to be represented by an attorney is yours to make, but it is voluntary and may not be necessary for you to receive your benefits." be accompanied, outside the main body of the benefit-notice letter, by the written statements required in subdivision (e) of Section 138.4, printed in at least 12-point font size.

(c) [NO CHANGE].

(d) [NO CHANGE].

(e) [NO CHANGE].

(f) [NO CHANGE].

(g) [NO CHANGE].

(h) [NO CHANGE].

(i) [NO CHANGE].

(j) [NO CHANGE].

(k) [NO CHANGE].

(l) [NO CHANGE].

(m) [NO CHANGE].

 

§ 5401. Claim form and notice of potential eligibility for benefits.

(a) Within one working day of receiving notice or knowledge of injury under Section 5400 or 5402, which injury results in lost time beyond the date of injury employee's work shift at the time of injury or which results in medical treatment beyond first aid, the employer shall provide, personally or by first-class mail, a claim form and a notice of potential eligibility for benefits under this division to the injured employee, or in the case of death, to his or her dependents. As used in this subdivision, "first aid" means any one-time treatment, and any follow-up visit for the purpose of observation of minor scratches, cuts, burns, splinters, or other minor industrial injury, which do not ordinarily require medical care. Such one-time treatment, and follow-up visit for the purpose of observation, is considered first aid even though provided by a physician or registered professional personnel. "Minor industrial injury" shall not include serious exposure to a hazardous substance as defined in subdivision (i) or Section 6302. The claim form shall request the injured employee’s name and address, social security number, the time and address where the injury occurred, and the nature of and part of the body affected by the injury. The notice shall include a description of the procedures and assistance available to the employee on his or her own behalf, the procedure to be used to commence proceedings for the collection of compensation for the purposes of this chapter, the telephone number of the division’s information and assistance services, and a statement that the employee has a right to consult an attorney or information and assistance officer, or both, for assistance. Claim forms shall be available at district offices of the Employment Development Department and the division. Claim forms may be made available to the employee from any other source.

(b) The notice of potential eligibility for benefits required by this section shall be on the reverse side of the claim form, and the claim form shall instruct the injured employee to read the reverse side. The form and content of this notice shall be prescribed by the administrative director after consultation with the Commission on Health and Safety and Workers' Compensation. The notice shall be easily understandable and available in both English and Spanish. The content shall include, but not be limited to:

(1) The procedure to be used to commence proceedings for the collection of compensation for the purposes of this chapter.

(2) Description of the different types of workers' compensation benefits.

(3) What happens with the claim form after it is filed.

(4) From whom the employee can obtain medical care for the injury.

(5) Role and function of the primary treating physician.

(6) Rights to select and change the treating physician pursuant to the provisions of Sections 3550(e) and 4600.

(7) How to get medical care while the claim is pending.

(8) Protections against discrimination pursuant to Section 132a.

(9) The following written statements:

(i) You have a right to disagree with decisions affecting your claim.

(ii) You can obtain free information from an Information & Assistance officer of the state Division of Workers' Compensation, or you can hear recorded information and a list of local offices by calling [applicable I&A telephone number(s)].

(iii) You can consult an attorney. Most attorneys offer one free consultation. If you decide to hire an attorney, his or her fee will be taken out of some of your benefits later. For names of workers' compensation attorneys, call the State Bar of California at [telephone number of the State Bar of California's legal specialization program, or equivalent].

(b)(c) The completed claim form shall be filed with the employer by the injured employee, or, in the case of death, by a dependent of the injured employee, or by an agent of the employee or dependent. Except as provided in subdivision (c)(d), a claim form is deemed filed when it is personally delivered to the employer or received by the employer by first-class or certified mail. A dated copy of the completed form shall be provided by the employer to the employer's insurer and to the employee, dependent, or agent who filed the claim form.

(c)(d) The claim form shall be filed [NO CHANGE].