Workers’ Compensation Claims Reform
On April 19, 2004, Senate Bill 899 (SB899) became law. SB 899 is the most radical change to workers’ compensation law since the system was formed in 1911. The following are the major changes from past law.
- The employee can no longer get treatment from a doctor of his or her choice.
The employee must receive treatment in the employer’s medical provider network (MPN) during the entire claim subject to certain limited exceptions.
- The time limit on receiving temporary disability benefits (a weekly benefit that replaces 2/3 of average weekly earnings during the healing/treatment period) has been reduced from five years to two years.
Please note that the two-year limit starts from the first benefit payment. If you receive a check the day after your are injured, return to work, and then are taken off work eighteen months later, you will only get six months of temporary disability payments. Therefore, it is important to try to resolve your claim within the two-year time limit. If your injury occurred after 01/01/2008, the law regarding temporary disability has now been changed to allow an injured worker to collect 104 weeks of temporary disability benefits in a five year period in place of the 104 period from first payment limit.
- Medical treatment is now very limited.
Before SB 899, there was no limit or guidelines for medical treatment. Now, most treatment decisions are determined by the use of guidelines called American College of Occupational and Environmental Medicine (ACOEM). Also, physical therapy, chiropractic, acupuncture, and occupational therapy are limited to 24 visits per claim. Obtaining optional medical prescriptions such as mattresses and gym memberships are now very difficult to obtain from an MPN doctor. Also, treatment decisions are now reviewed by a utilization review process, which can take two weeks or more to make a decision.
- There is no more vocational retraining.
In the past, workers were trained for a new occupation when it was determined that they could not return to their old job as a result of the injury. Now, if workers are not back at their at injury job after 60 days from the last payment of temporary disability, AND the injury causes permanent disability, they can qualify for a voucher for retraining expenses from $ 4,000 to $ 10,000. Please note that the worker gets none of this money. It goes directly to the school or program.
- The method of determining permanent disability benefits has been radically altered.
Permanent disability benefits are supposed to reflect long term diminished earnings capacity of similarly situated workers. In reality, the computation is now based largely on the American Medical Association Guidelines to the Evaluation of Permanent Impairment, 5th Edition. Pain is given very limited consideration and the rating schedule as it exists does not come close to reflecting diminished earnings capacity for many injuries. We may need to use vocational experts to prove true diminished earnings capacity.
- Soft tissue and other minor injures that cause pain but are not supported by objective findings or diagnostic testing will now likely receive NO or very little permanent disability benefits.
The days of getting a settlement of several thousand dollars, a year of treatment, disability payments and a vocational rehabilitation plan for a soft tissue claim are gone. Subjective problems are no longer enough to support an award of permanent disability or justify medical treatment and temporary disability longer than two to three months.
- Meaningful penalties for delayed benefits have been eliminated.
Unfortunately, many benefits and treatments are either delayed or denied now that the insurance companies no longer have any incentive to provide timely benefits.
- The employer is now responsible only for permanent disability directly caused by the injury.
As a result, your past medical and injury history will now be looked at very carefully. Any intentional attempt to conceal or lie about your past medical and injury history will be detrimental to you claim and may cause the employer to report you to the local District Attorney for Workers’ Compensation Fraud. The employer can reduce your permanent disability by the percentage of the disability being caused by factors other than the injury. This is called apportionment. California now permits apportionment of permanent disability to pre-existing asymptomatic and previously non disabling conditions as long as it is supported by substantial evidence. This aspect of the workers compensation reform is very controversial and is the cause of much dispute and delay of claims.
- Once you are determined to have reached maximum medical improvement by the treating doctor (released from active ongoing medical care), you have to look for work.
Please see the section titled Preparing For Life After Temporary Disability Ends And You Have Reached MMI.
- For additional information on the reformed workers’ compensation system, please visit the websites www.viaw.org or www.caaa.org.
The most important thing you need to know about the new workers’ compensation system is that it is very different from the old system. Whatever friends and relatives tell you about workers’ compensation cases that they had in the past no longer applies in the new system.