Below are the important changes that you need to know regarding SB 899; the new workers’ compensation reform. This law dramatically reduces the injured workers’ benefits. The new bill is full of pit falls and traps for the unknowledgeable worker. Miss a deadline and your claim may be over. Before you are injured, know your rights!!!
Temporary Disability: For injuries occurring on or after 4/19/04 through 12/31/07, SB 899 imposes a two year “hard cap” for temporary disability from the first date of TD time. For injuries on or after 1/1/08, the injured worker can receive TTD for 2 years within a 5 year period.
Permanent Disability: SB 899 requires the use of AMA Guidelines/loss of earning capacity to determine the level of permanent disability. The general rule is that the AMA Guidelines will apply to injuries occurring after 1/1/05; however, there are situations in which the Guidelines will be applied retroactively despite the date of injury.
SB 899 allows an Award to be decreased by 15% if the injured worker returns to work for the same employer provided that the employer has 50 or more employees. The Award is increased 15% if he/she does not return to work because of the injury.
Labor Code Sections 4663/4664: These Code sections give employers a rebuttable presumption regarding credit for old Awards. They also provide for apportionment to pathology (i.e.: old age, degenerative changes and obesity). And these sections apply retroactively to all dates of injuries. As a result of these changes these Code sections have been, and will be in the future, the source of a significant number of Appellate Court decisions.
Treatment: SB 899 limits the number of therapy sessions to 24 each for physical therapy, occupational therapy and acupuncture sessions. These limitations are per injury and affect injuries occurring after 1/1/04.
SB 899 gives the employer a shield to delay or deny treatment pursuant to Utilization Review and ACOEM Guidelines. Warning: watch out for improper denials!
Pre-designation still applies as long as the treating doctor is within your health insurance plan and the doctor agrees to be your primary treating physician.
Medical Provider Network: SB 899 allows an employer to create a Medical Provider Network (“MPN”). A MPN is a network of doctors chosen by the employer. Without a MPN, the employer only has 30 days of medical control, and then the injured worker can select their own physician(s). However, assuming a MPN is created, medical control is totally switched to the employer, unless the employer fails to follow certain timelines and regulations governing the MPN process.
Vocational Rehabilitation: For injuries occurring prior to 1/1/04, a $16,000.00 benefit still applies, but the rehabilitation plan must have been completed by 12/31/08.
For injuries occurring after 1/1/04, there will now be a voucher system based upon the level of disability. The vouchers will range in value between $4,000.00 and $10,000.00.
Procedural Changes: SB 899 amends Labor Code Section 4062.1; this section applies to injured workers not represented by attorneys. If either the injured worker or the employer has a dispute regarding any issue in the case, the employee has 10 days to submit the proper paperwork to the Administrative Director advising her that there is a dispute between the parties.
For disputes pertaining to medical evaluations, the employee must submit a request for an evaluation by a qualified medical evaluator (“QME”). The inured worker also has to indicate which type of specialist (QME) he/she would like to see. If the employee does not do this within 10 days, the employer can prepare the paperwork and the employer then is allowed to choose what type of specialist the injured worker needs to see.
The Administrative Director then sends the injured worker a list of 3 doctors from which to choose. The employee must then select one of the doctors and make the appointment. If this is not done within 10 days from the receipt of the list of doctors, the employer can choose one of the doctors from the list and schedule the evaluation for the employee.
Once the injured worker goes to one of the doctors provided by the Administrative Director the injured worker is barred from going to any other doctors to resolve the dispute. This is the case regardless of whether the injured worker eventually retains the services of an attorney.
Penalties: Penalties for failure to provide the required benefits to the injured worker have been capped at $10,000.00. The insurance carrier will also have 90 days to correct any delay without being responsible for the $10,000.00 penalty. That means you can lose your car, your home, and your family, and then the insurance company can then fix the delay without facing any punishment.
Is there Anything I Can Do?
Yes!!! FIGHT BACK!!! Union stewards, members and employees must know their rights. You must consult with an attorney immediately. Whether you hire an attorney or not, you need to discuss your situation early on in your case and learn your time sensitive deadlines.
You need to fight to get out of the MPN. It is difficult, but it is possible. You need to know your rights and learn the timetables. You can force the insurance company to have to deal with your timetable, not theirs.
Most importantly, you need to let your elected officials know when you think that someone is being treated unfairly by the insurance company. The insurance companies are pushing for further drastic cuts. If the elected officials do not hear it from you, they will not hear it at all. The only way we can succeed in getting back some of what we lost is by letting them know the problems we are facing.
If you do not know who to contact, call us at Levy, Ford & Wallach at (213) 380-3140 and we will help you send this message.