What Happened to California Workers' Compensation in 2003?
Effective for injuries
after 01/01/2003
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During 2002 the California legislature passed and the Governor signed into law a bill (Assembly Bill 749) which included a number of changes that will affect the Workers' Compensation system and some changes that will directly affect all California workers injured after January 1, 2003. This is a summary of those changes.
INCREASE IN BENEFIT RATES
Total Temporary Disability
This is the benefit that most people think of as "Workers Comp." Total Temporary Disability, or TTD, is paid to you when you are injured or suffering from an industrially caused illness such that you temporarily can't work at all, or at least, you temporarily can't work at your regular job and your employer has no modified work for you.
In 2002 the minimum benefit for TTD was the amount of your actual wages if they were less than $126.00. The minimum benefit after 1-1-2003 will be $126.00 per week, even if you made less than that while working.
In 2002 the maximum TTD rate was 2/3 of your wages up to $490.00 per week (2/3 of $735.00 per week). For injuries occurring in the year 2003 the maximum will go up to $602.00 (2/3 of $903.00 per week). If you make less than $903.00 per week, you will still receive 2/3 of your Average Weekly Earnings.
For injuries occurring in 2004 the maximum will be $728.00 per week. For injuries occurring in 2005 the maximum TTD rate will be $840.00 per week. After 1-1-2006 the maximum will be $840.00 or the State Average Weekly Wage, whichever is greater. There will be a built-in cost of living adjustment by tying the rate to the average wage paid by employers to employees as reported to the U. S. Department of Labor.
[NOTE: Temporary Disability Benefits paid more than two years from the date of injury must be paid at the rate in effect on the date of payment. So if you were injured in 2001 (or before) and are still receiving TTD, or receive it again for a new period of TTD, such as a surgery, and if you made more than $735.00 per week when you were injured then you would be entitled to TTD at the new rate (up to $602.00 per week this year). ]
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Permanent Partial Disability
Permanent Partial Disability, or PPD, or PD, is the benefit you receive after you reach maximum medical improvement and are able to return to some kind of work, even if it is not your previous job. PPD is paid at different rates depending on the severity of the disability. If you lose the tip of your pinky finger that's permanent and that's a disability but it won't affect your ability to find work nearly as much as losing your ability to lift or to hear. There is a complex system for calculating the level of disability as percentage which is described elsewhere.
The benefit rates for all levels of PPD will go up effective 1-1-2003 and again over the next three years. For injuries occurring in 2002 and before PPD was usually paid at $140.00, $160.00, $170.00 or $230.00 per week, depending on the percentage of disability. The minimum payment was $70 per week.
For injuries occurring after 1-1-2003 the minimum payment will be $100.00 per week and most payments will be at $185.00 per week unless disability is more than 70%. Then it will be $230.00 as it is now. There will be various changes until 2006. Injuries occurring after 1-1-2006 will be paid at $230.00 per week for most injuries with $130.00 being the minimum and $270.00 being the rate for disability more than 70%. The number of weeks paid per 1% of disability will also increase.
The overall effect of these changes will be an increase in the amount of money that is paid for Permanent Partial Disability. For example, a 30% disability (no heavy work) which is currently worth $21,420.00, will be worth $23,310.00 for injuries occurring in 2003, $29,150.00 for injuries occurring in 2004, and $32,065.00 for injuries occurring in 2005.
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Permanent Total Disability
This is a benefit paid when you are permanently unable to compete in an open labor market. If you loss the sight of both eyes or the use of both legs or both arms, you are legally Permanently Totally Disabled. The benefits paid for this type of disability are the same as TTD above but they are paid for the rest of your lifetime. These benefits increase exactly as the TTD benefits increase for injuries occurring after 1-1-2003.
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DEATH BENEFITS
These are benefits paid to your dependants if you die of an industrial injury or industrially caused condition. Not only have these benefits increased but the categories of people who are eligible for them have also been expanded. Changes in death benefits will not take effect until after 1-1-2006 (assuming the legislature makes no changes in the law before that). They will not affect any industrial death from injuries occurring before that date. After that they will double. Benefits currently range from a maximum of $125,000.00 to a maximum of $160,000.00 depending on the number of dependents and whether they were fully dependant or partially dependant on the decedent. For deaths resulting from injuries which occur after 1-1-2006, these amounts will be $250,000.00 and $320,000.00.
Children under 18 years old and children of any age who are found to be physically or mentally incapacitated from earning will be found to be fully dependant on the deceased worker and will receive benefits at the maximum TTD rate until the child reaches 18 or for the entire life of the disabled child, without regard to the maximums. If a worker dies with no total or partial dependants, his parent or parents will be conclusively presumed to be wholly dependent upon his support.
Currently, if a worker dies with no dependants the insurance must pay $125,000.00 to the California Department of Industrial Relations. After 1-1-2006 the insurance will have to pay $250,000.00 to the estate of the deceased. That means if a worker dies of an industrial injury or industrially caused condition and the worker has no wife and no children, the money will be paid to his legal heirs, such as his siblings or adult children who are not dependant on him/her rather than to the state.
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TREATING DOCTOR'S PRESUMPTION / PREDESIGNATING A DOCTOR
Since 1994, the "Primary Treating Doctor" has had a "presumption of correctness." That means that the judge had to give extra weight to the treating doctor's opinion. This will end for injuries and industrial conditions occurring after 1-1-2003. Legally the treating doctor who has seen you dozens of times and the Qualified Medical Examiner who only sees you once will have the same weight. Hopefully, the judges will continue to recognize that the treater knows you better than a one time evaluator, but the judge will no longer be required to follow the treater as he effectively is now. This may cause a lot of problems.
If the insurance thinks you have treated long enough and your doctor says you need more treatment the judge currently follows the treating doctor despite an opinion from an insurance company evaluator. In the future the insurance may be more likely to cut off your treatment and your benefits based on a one time evaluation by a defense doctor. This will require a trial to determine which doctor's opinion the judge will follow. It will also make it more complicated in settling a case because we won't be able to rely on the fact that the judge will probably follow the treating doctor's opinion.
There is one doctor who will still have the treating doctor's presumption. This is the treating doctor who has been predesignate. If you have a doctor who has treated you in the past, and if you tell your employer that you want that doctor to be your doctor if you ever get injured at work, then that doctor is your predesignate treating doctor. This has two advantages. If you are injured at work you can go straight to your predesignated doctor and don't have to go to the employer's doctor or industrial clinic and the predesignated doctor still has the presumption of correctness.
We strongly recommend that you predesignate a treating doctor now, before you have an injury, just in case you are ever injured. That is, if you are aware of a doctor who you think will do a good job of treating you and will listen to your complaints and believe you, not ignore you and discontinue treatment before you are better.
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SETTLEMENT OF VOCATIONAL REHABILITATION
It has been the law that Vocational Rehabilitation benefits were not subject to settlement. The philosophy was "If you give a man a fish you feed him for a day but if you teach a man to fish you feed him for a lifetime." In other words, if you train a person to do a different job he will continue to be useful but if you just give him some money he will blow it. For injuries and illnesses occurring after 1-1-2003, this will change.
The "reforms" of 1994 added to the Vocational Rehabilitation laws a "cap" of $16,000.00, a dollar limit that the insurance company did not have to exceed in rehabilitating an injured worker. The new law, effective 1-1-2003, provides for a one time payment of up to $10,000.00 for a "self-directed" rehabilitation plan. There is a provision for approval by the Rehabilitation Unit of the Department of Workers' Compensation, but this approval will apparently be easy to obtain. This is being described as a "settlement" of the worker's right to Vocational Rehabilitation. We will have to see how it turns out in practice, but it appears that if you want to attend some classes on your own or merely look for a job on your own, you will be entitled to this "self-directed" rehabilitation plan, or "settlement."
One interesting question is whether this will apply to Rehabilitation for injuries occurring before 1-1-2003. The legislator who drafted the law says he intended for it to be retroactive but the rules that have been written to implement the law require that there be an injury after 1-1-2003. We will wait to see what the court decides. In most cases we will probably recommend a $16,000.00 maximum rehabilitation plan over a $10,000.00 rehabilitation settlement. Training is better than cash in the long run.
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EMPLOYER NOTICE REQUIREMENTS
Employers have always been required to post a notice of Workers' Compensation laws, including how to get benefits and what to do if you have a dispute. The new law requires the employer to post in a conspicuous location a notice that includes notice of the right to select a "predesignated" treating physician (see above). "Failure of an employer to provide the notice... shall automatically permit the employee to be treated by his or her personal physician with respect to an injury occurring during that failure."
Also the notice of how to get medical care and the right to select and to change treating doctors must be given to the employee at the time he is hired or by the end of the first pay period. This is to include a form you can use to notify the employer of your choice of a personal physician. If you
want to notify the employer of your choice ask for a form. Top
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FRAUD BY EMPLOYERS
The Insurance Code and the Labor Code have been amended to provide more serious penalties for Employers who commit fraud, such as under reporting payroll and for making false statements to discourage an employee from claiming benefits or reporting a claim.
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PENALTIES FOR UNINSURED EMPLOYERS
The policy of the State will be to more vigorously pursue employers who fail to obtain workers' compensation insurance. The Labor Commissioner is supposed to maintain a program for targeting employers in industries with the highest incidence of unlawfully uninsured employers. There will be more cooperation between the Insurance Commissioner and the Labor Commissioner to identify employers who have payrolls but no record of Workers' Compensation Insurance. Like any of the other provisions that require the State to do something, these provisions will probably be affected by the current "budget crisis." If you suspect your employer does not have workers' compensation insurance you should make a report to the Labor Commissioner's office. You may be able to do this anonymously.
The Labor Commissioner can issue a "Stop Order" on any job where there is no workers' compensation insurance and, now, can fine the employer $1,000.00 per employee on the job.
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DISCLOSURE TO EMPLOYER OF MEDICAL INFORMATION
The insurance companies will be allowed to disclose to your employer the mental or physical condition for which workers' compensation benefits are being claimed and the treatment provided for this condition.
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ADDITIONAL MEDICAL EXAMS IF YOU OBTAIN AN ATTORNEY
In 2002, if you did not have an attorney and you obtained a Q.M.E. evaluation by a doctor whose name you picked from a list of three supplied by the state after you or the insurance objected to the treating doctor's opinion, you were stuck with that opinion even if you later obtained an attorney. For injuries and illnesses occurring after 1-1-2003 you will be able to obtain another evaluation from a doctor selected by your new attorney.
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GENERIC DRUGS
Pharmacies will be required to provide generic drugs whenever possible unless the doctor specifically provides otherwise in writing.
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USE OF HEALTH CARE ORGANIZATIONS
Not many Employers have contracted with Health Care Organizations, or "HCOs" but the law has been changed to make it easier. If your employer provides an HCO, (which is similar to an HMO) they have to give you written notice of the opportunity to select a predesignated physician, chiropractor or acupuncturist. If you don't select a predesignated health care provider then you will be required to use the HCO. The opportunity to select a personal health care provider must be given upon hire and at least once per year thereafter.
If you have selected an HCO that provides care for nonindustrial, as well as industrial injuries and conditions, then you will be stuck with that HCO for 180 days before you can change doctors. If the HCO is not available for nonindustrial treatment, then you are stuck with their treatment for only 90 days. If your employer does not provide an HCO then the law is the same as it has been, the employer can only control the treatment for 30 days, then you can change doctors.
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SUMMARY
The big news is the increase in benefit rates. This is especially important if your earnings are above the current maximum, but at least in regard to PPD, most workers are. The important thing to remember is to designate a treating doctor now, before you are injured, so you aren't stuck with some industrial clinic that doesn't care about you.
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WORK SAFELY AND DON'T GET INJURED!
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