A work injury may be the result of a single incident such as dropping an object on your foot, or cutting your finger on a machine.
An injury may also be a result of work activities over a period of time. For example, a person whose job requires the lifting of heavy objects over a period of time may develop back or neck pain due to repetitive trauma on the job. Another example would be a person whose job requires repetitive motion of the hands or wrists such as assembly work or typing at a computer. This worker might develop carpal tunnel syndrome or repetitive use syndrome of the hands or wrists, and this would also be a work injury entitling a person to the same benefits as if it had been a specific injury.
A work injury may also be the result of an occupational disease or illness that the work place has produced. An example would be a worker who develops asbestosis due to exposure to asbestos products on the job.
An incident or activity on the job which aggravates a previous injury or condition is also considered a work injury. An example of this would be an employee who has had prior back problems and then re-injures the back while lifting on the job. That person is entitled to work injury benefits for the re-injury.
In some instances, a person may be entitled to workers' compensation benefits even if the injury did not occur while at the work site. For example, if the injury occurred in the company parking lot on the way to or from work, it is considered a work injury. A heart attack or stroke which is due to work stress is a work injury, even if the heart attack or stroke occurs at home.
"Within one working day after an employee files a claim form under Section 5401, the employer shall authorize the provision of all treatment, consistent with Section 5307.27 (the State's medical treatment utilization schedule) or the American College of Occupational and Environmental Medicine's (ACOEM) Occupational Medicine Practice Guidelines, for the alleged injury and shall continue to provide the treatment until the date that liability for the claim is accepted or rejected. Until the date the claim is accepted or rejected, liability for medical treatment shall be limited to ten thousand dollars ($10,000)"
Some injured employees may now have access to some treatment while the employer transmits the claim to the insurer or while the insurer investigates the claim or makes up its mind (the insurer has 90 days to make a decision to accept or reject).
-ACOEM guidelines In the past the state did not have official guidelines for medical treatment. Generally, workers have been entitled to treatment that is reasonable, necessary and related to the industrial injury. In the 2003 reforms, the state has adopted the ACOEM guidelines promulgated by the American College of Occupational and Environmental Medicine. Now treatment "reasonably required to cure or relieve the injured workers from the effects of his or her injury" has been defined by Labor Code 4600(b) to mean treatment that is based upon ACOEM. The ACOEM guidelines are now under Labor Code 4604.5 "presumptively correct on the issue of extent and scope of medical treatment."
Can doctors use treatments not covered by ACOEM? Under Labor Code 4604.5 (a) ACOEM "may be controverted by a preponderance of the scientific medical evidence establishing that a variance from the guidelines is reasonably required to cure or relieve the injured worker from the effects of his or her injury"
Does ACOEM apply to pre October 2003 injuries, including workers with old injuries who have judicial awards that include "future medical" or who settled their cases with open medical with the understanding they would get "lifetime medical"? The 2003 reforms are silent on this, but across the state ACOEM is being applied to older cases and as of 12/2004 there has been no decision limiting the application of ACOEM to post October 2003 injuries or awards.
Will ACOEM always be the basis for treatments? The state is supposed to adopt its own treatment guidelines, but for now is using the ACOEM guidelines until the Administrative Director implements other guidelines. Hearings were held in San Francisco on 12/6/04.
-UTILIZATION REVIEW The 2003 reforms empowered insurers to set up "utilization review" ("UR"). UR procedures of a carrier are to be provided upon request. Nothing in law requires a claims examiner to use UR before authorizing a doctor's treatment recommendations, but use of UR is at the insurer's option. Most UR procedures allow for some in-house appeal if the treating doctor wants to contact the UR physician to discuss the case.
What are the UR time frames? For the vast majority of medical treatments, the UR time frame is set forth in Labor Code 4610(g). The doctor must request authorization in writing. A UR decision is to be made within 5 to 14 working days from the date of the medical treatment recommendation and communicated to the treating doctor and to the doctor and injured worker in writing within 2 business days.
Must UR explain any recommendations to deny treatment certification? Labor Code Section 4610(g)(4) says that when a response to a request for treatment is to modify, delay, or deny it "shall include a clear and concise explanation of the reasons for the decision, the criteria or guidelines used, and the clinical reasons for the decision".
Does UR apply to old (pre-reform) injures? Yes, but as noted above, there is legal controversy over whether UR can apply ACOEM to chronic pain injuries as opposed to "acute" injuries.
-MEDICAL PROVIDER NETWORKS Insurers/employers can set up "medical provider networks" ("MPNs") after 1/1/05. The regulations as drafted allow the insurers/employers to force workers with old future medical awards and workers with existing doctor-patient relationships into the MPNS, thus disrupting ongoing doctor-patient relationships. The California Applicants' Attorneys Association has filed suit to challenge the MPN regulations. Unless that suit is successful, the word is that employers such as Safeway plan to force workers with old medical awards into a MPN administered by Kaiser. As of 12/04 is not clear what percentage of California employers will set up MPNS and how quickly those will go into operation. The current MPN regulations provide that there are four circumstances in which a worker can NOT be pulled from the workers' treating doctor into an MPN. The four exceptions are: 1) An acute condition that is, less than 90 days since date of injury; 2) A serious chronic condition (after 1 year, these can be moved into the MPN); 3) A terminal illness; 4) Where surgery or a procedure has been authorized by the insurer and is to occur within 180 days of the MPN coverage date.
Will ACOEM still be the treatment standard even with the MPNS? Yes. Can an insurer still use UR even though the worker is treating with the employer's MPN? Yes. What if the worker does not like the MPN doctor? They will be entitled to 3 changes within the company doctor network, and then will be able to solicit review by an independent medical review doctor to review medical treatment decisions. The worker will have to submit an application to the administrative director on a one page form for an independent medical review. The procedure is set forth in Labor Code Section 4616.4.
-TREATING DOCTOR PRESUMPTION REPEALED The opinion of the treating doctor is no longer presumed correct.
-LIMITATION ON CERTAIN TREATMENTS For injuries after 1/1/04, the insurer is not required to provide for each injury more than 24 chiropractic treatments, 24 physical therapy sessions, and 24 occupational therapy visits. Many physicians prescribe physical therapy in the early stages of injuries. Clearly there are going to be many workers who eventually need surgery but who have "used up" their allowed therapy before surgery through no fault of their own. Will surgeons operate on a worker who is allowed no post surgical therapy? Will group medical carriers or union health trust funds pick up the tab for additional PT? Many serious questions remain. Nothing in the law would prevent an insurer from voluntarily providing for therapy beyond the limits, however.
-SPINAL SURGERY SECOND OPINION What happens if the treating doctor recommends neck or back surgery and the insurer objects? Labor Code 4062 now provides a special procedure for disputing spinal surgery issues. If the employer objects within 10 days of the treater's surgical recommendation, the parties may agree on an AME (agreed upon examiner). If there is no agreement within the 10 day time frame, the Administrative Director of the California Department of Industrial Accidents can randomly select an examiner to prepare a second opinion. The list of the examiners is still being compiled. If the employee goes out and has the surgery on group medical insurance in the meanwhile before the second opinion is completed the employer is not liable for the costs of the surgery.
When an injured employee is unable to work because of an injury or illness which was caused by the employment, the employee is entitled to receive temporary disability compensation. This benefit is payable at the rate of two thirds of their weekly earnings with certain maximums and minimums.
Temporary disability compensation benefits will terminate when the injured worker returns to work, has been released by the treating physician to return to his or her regular work, or when the injured employee's condition becomes permanent and stationary, meaning that the injury has healed as much as possible, and no further improvement is expected.
If the treating physician releases a worker to light duty work (such as no lifting over 10 pounds), and the employer does not make work available within those restrictions, the injured worker is entitled to receive temporary disability compensation.
LIMITATION ON TEMPORARY DISABILITY -2 YEAR TD LIMITATION Workers (except for HIV, Hep B and C infected, severe burns, amputations, etc) injured after the April 2004 reforms have a 2 year limitation on temporary disability from the date of their injury. After the 2 year period runs out these workers may perhaps be able to draw some State Disability funds from EDD (provided they filed earlier on so as to preserve their EDD rights) but after receiving EDD then will receive nothing unless they are covered by an LTD benefit plan or meet the criteria for Social Security Disability (i.e. inability to do substantial gainful activity when age, educational level, relevant skills and mental and physical impairments are considered).
Permanent disability is that degree of disability or impairment that remains after the employee has reached the point of maximum healing. A permanent disability may be partial or total. If a person suffers a permanent partial disability, the person is entitled to a permanent disability rating and award even though he or she may be able to return to work.
The weekly rate at which permanent disability payments are made varies, depending on the date of the injury, and the extent of the permanent disability. A person who is permanently totally disabled with a rating of l00% is entitled to receive their temporary disability rate for life.
For injuries which occur after January 1, 2004, the right to vocational rehabilitation has been modified dramatically and is limited to a small voucher system.
However, if an injured worker's injury occurs before January 1, 2004, and is unable to return to his or her ordinary and customary employment because of the injury, he or she may be entitled to vocational rehabilitation benefits.
If an injured worker is unable to return to his or her ordinary and customary employment because of the injury, he or she may be entitled to vocational rehabilitation benefits. Rehabilitation is a method of providing vocational services to restore the disabled worker to suitable gainful employment after an injury. This may consist of an offer of modified work with the employer for at least one year, or assistance in obtaining employment in a different occupation at a new employer.
A vocational counselor is provided to assist in the development of a vocational rehabilitation plan. The rehabilitation plan depends on the interests, aptitudes, abilities, past experience, and work limitations of the injured worker. Returning an injured employee to an appropriate and reasonable level of work for the same employer is often the best rehabilitation plan. However, if modified work at the same employer is not offered, placement assistance is provided if the worker has transferable skills from his or her prior employment experience. If the qualified injured worker does not have transferable skills and the employer will not provide modified work, training may be required. This may be in the form of on the job training, formal classroom training, or a combination of the two.
Vocational rehabilitation does not guarantee employment. It provides only an opportunity to return to suitable, gainful employment. Rehabilitation should start as soon as the qualified injured worker is capable of participating in the program, and the worker's doctors are satisfied that participation will not impede recovery. The rehabilitation benefit includes payment of counseling fees, training costs, additional costs associated with vocational rehabilitation services, as well as a vocational rehabilitation maintenance allowance. The maintenance allowance begins when temporary disability has stopped and the injured worker has requested vocational benefits which is indicated by the treating physician.
For workers injured after l/l/94, the maximum cost to the employer or the insurance company for vocational rehabilitation benefits is $l6,000.00. Of this amount, the vocational counselor can receive up to $4,500.00. As a result of this cap on rehabilitation benefits, it is advantageous for the injured worker to begin participating in vocational rehabilitation while still receiving temporary disability benefits. This is because temporary disability indemnity is not included in computing the $l6,000.00 cap. Therefore, the treating physician should make a determination as early as possible as to whether the injury will permanently prevent the worker from returning to their pre-injury occupation.
PENALTIES FOR INSURER CAUSED DELAYS -REDUCTION IN PENALTIES Before the 2004 reform, penalties could be assessed against an insurer for unreasonable delay of medical treatment and unreasonable delay of temporary disability. The penalty for delay was 10% of the entire amount of the type of benefit payable, not just 10% of the particular benefit that was delayed. This was an effective incentive to get insurers to authorize medical treatment promptly and to pay indemnity benefits properly where the carrier had no basis for genuine doubt as to whether the benefit should be provided.
Now a penalty can be assessed only of 15% on the particular benefit that is delayed. Although the percentage has been raised from 10% to 15%, the financial risk to the insurer who delays benefits is significantly lessened. For example, an insurer who unreasonably fails to authorize a $1500 MRI scan (thus prolonging the workers' time off and his wage loss) might be assessed with a 10% of $1500 penalty, i.e. $150. Unfortunately it is no longer economically feasible for lawyers to pursue penalties for many delays in workers' compensation unless the treatment is a very expensive type of treatment.
RATING SYSTEM CHANGED -AMA SYSTEM ADOPTED California will be using the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition to rate impairments. The AMA system is big on range of motion measurement and neurological test results and other so-called "objective" impairments of impairment. The AMA system produces an impairment of the whole person percentage based on an assessment of how an impairment impacts activities of daily living. The AMA rating is not designed to assess work impairment or disability and for that reason does a very poor job of assessing impairment of workers who have limitations and preclusions from physical activities required in the workplace.
QME PROCEDURES CHANGED -CHANGES FOR REPRESENTED WORKERS What happens when there are disputes about medical treatment, temporary disability or permanent disability that need to be resolved? The big procedural change for workers who have a lawyer is that the lawyer and the insurer are to either agree on a neutral agreed medical examiner (AME) or to each disqualify one of 3 QMEs from a state list, thereby arriving at a QME who will do the evaluation.
APPORTIONMENT -PRIOR AWARDS DEDUCTIBLE 2004 reforms state that if the worker has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury.
Labor Code 4663 enacted in 2004 requires apportionment based on causation. Until now under California case law apportionment to preexisting non-disabling pathology has not been permitted. Now 4663 requires the examining physician to make an apportionment determination by finding that approximate percentage of the permanent disability was caused by the direct result of the work injury and what percentage caused by other factors before and after the work injury. The appellate courts will be issuing ruling clarifying whether apportionment to non-disabling pathology is legal. If apportionment to non-disabling "pathology" is legal, then it may be necessary to file a claim for cumulative trauma in many cases. Each case will need to be carefully analyzed by an attorney.
SUMMARY These are a few of the most significant changes. Where can you get more information? Other sites of interest are the site of the California Applicants' Attorneys Association (_____________) and the California Department of Industrial Relations (______________), where the text of new regulations can be downloaded.
