Question:

I have been reading about the changes in workers’ compensation law. What are the changes, and how will they help me?

Answer:

Governor Schwarzenegger approved Senate Bill 899, on April 19, 2004 as an urgency statute, effective immediately. The bill contains many changes to existing procedures and benefits. The changes generally affect all pending claims, but do not affect past decisions. The Division of Workers Compensation will issue new regulations to incorporate the changes mandated by the bill, and will issue new workplace posters and pamphlets.

The changes imposed by SB 899 include:

· Defining medical treatment that is reasonably required to cure or relieve the injured worker from the effects of the injury.

· Permitting the employer to establish a medical provider network to provide treatment to the injured worker. SB 899 requires an injured employee to select a physician from the provider network to provide treatment for the injury, and permits an employee to obtain 2nd and 3rd opinions regarding treatment from physicians within the network. It also establishes an independent medical review process to resolve disputes regarding whether the treatment is medically necessary.

· Limiting the reimbursement paid to medical providers for services rendered in connection with the treatment of a worker’s injury to the reasonable maximum amounts in the official medical fee schedule in effect on the date of service.

· Requiring that recommended guidelines set forth in the medical treatment utilization schedule be scientifically based, nationally recognized, and peer-reviewed. Also, the guidelines set forth in the American College of Occupational and Environmental Medicine’s Occupational Medicine Practice Guidelines would be presumed correct on the issue of extent and scope of medical treatment regardless of the date of injury.

· Requiring that the procedures governing the determination of any disputed medical issues be consistent with standards used in connection with the medical treatment utilization schedule.

· Requiring that qualified medical examiners (QME’s) conduct their evaluations in a manner consistent with specified medical standards.

· Changing the procedures and standards for apportionment of permanent disability in connection with an employee’s injury or condition. SB 899 requires any physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury to address the issue of causation of the disability, and requires an employee who claims an industrial injury to disclose, upon request, all previous permanent disabilities or physical impairments. SB 899 also imposes limits on the percentage of permanent disability an employee may receive.

· Changing the factors considered when determining the percentages of permanent disability, requiring that consideration be given to an employee’s diminished future earning capacity, which would be a numeric formula. SB 899 requires the nature of the employee’s physical injury or disfigurement to incorporate descriptions and measurements contained in a specific publication of the American Medical Association, and requires the administrative director to formulate the adjusted rating schedule based on empirical data and findings.

· Changing the schedule containing the method for the computation of permanent disability benefits, and exempting employers that employ fewer than 50 employees from the provisions of the schedule.

· Providing that within one working day after an employee files a claim form, the employer will authorize the provision of treatment for the alleged injury, and will continue to provide the treatment until the date that liability for the claim is accepted or rejected. Liability for medical treatment is limited to $10,000 until the date the claim is accepted or rejected.

· Limiting occupational therapy visits to 24 per industrial injury.

· Limiting temporary disability payments to no more than 104 compensable weeks within a period of 2 years from the date of commencement of temporary disability payment, except if an employee suffers from certain injuries or conditions.

· Restoring vocational rehabilitation services and benefits for employees injured prior to January 1, 2004.

· Exempting from civil liability any person who believes that a fraudulent claim has been made by any person or entity providing medical care, and reports the apparent fraudulent claim in good faith.

· Recognizing the exclusive remedy provided by the workers’ compensation provisions of the Labor Code, and not allowing employees to bring a civil action or recover penalties in connection with the workers’ compensation provisions of the code.

· Changing the penalties imposed upon an employer who knowingly delays or refuses to pay compensation.

· Requiring that all parties and lien claimants meet the evidentiary burden of proof on all issues, including issues relating to injury and treatment, by a preponderance of the evidence.

Although it is too early to tell how these changes will help reduce the cost of workers’ compensation benefits and improve benefits to injured workers, the changes do provide some uniformity in treatment, incentives for returning to work, and more objective assessments of worker injuries and disabilities.
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