DISCLAIMER: The statements and opinions contained in this publication are those of the contributors only and are not necessarily those of The State Bar of California, the Workers' Compensation Section, or any government body. This information is intended to be a reference tool only and is not meant to be relied upon as legal advice.
More changes were made to Labor Code sections 3351, which defines who is an “employee,” and 3352, which sets forth various exclusions from the definition. Section 3351 includes, in addition to others, individuals who are corporate officers and directors (while rendering actual service to the corporation), general partners, and member-managers of limited liability companies (LLCs) in its definition and, thereby, requires them to be covered by a mandatory policy of workers’ compensation insurance. The requirements for excluding these individuals from coverage were changed last year with AB 2883 and they were just changed again with SB 189, which was signed by Governor Brown on October 13, 2017. For these individuals to be excluded from coverage, they must execute a written waiver under penalty of perjury of their rights under workers’ compensation laws, and in the case of corporate officers and directors, they must also attest to at least a 15% ownership of the issued and outstanding stock, which, effective 7/1/2018, will drop to a 10% ownership requirement. [Author’s note: this is an incomplete summary of some of the changes intended to encourage the reader to consult the actual language of the statutes and chaptered bills, which contain important, additional changes, including changes affecting trusts and changes to the eligibility of waivers to be retroactively deemed accepted by an insurer. The reader is also encouraged to review WCIRB Bulletin No. 2017-26 (November 14, 2017).]
David M. Skaggs, Thousand Oaks/Westlake, CA
By Julius Young
How can a worker access medical treatment where the workers’ comp claim is denied?
The answer is unsatisfying, but the truth is……it depends.
It’s a situation that applicant attorneys often encounter. A worker is sitting in the lawyer’s office wanting advice about options.
Usually the discussion revolves around getting interim treatment while the parties await a determination by a QME or AME on industrial causation. But if factual questions exist, the matter may go through discovery, the QME process and an eventual trial and decision by a comp judge. This can be slow as molasses.
Meanwhile, what to do? Seek treatment under a health insurance policy sponsored by their employer or their employer’s spouse? Or coverage they have through the Affordable Care Act? These may be more viable options than a few years ago when treatment was routinely rejected if it was for a work injury or a preexisting condition. But regardless, as a practical matter some providers may refuse to treat if they know a work claim is being made.
Seek treatment at a county hospital or public clinic? This may be an option for some workers who are eligible for Medi-Cal or other public programs, but will not be available to many workers. And in many smaller counties these options are very narrow.
Seek treatment with a doctor who will wait on payment? In many parts of the state this is not a viable option. In others there have been many doctors who will treat on liens. Lien treatment has been a recurring hot potato in California’s workers’ comp system.
And what to tell the client about their possible direct financial exposure if the health provider bills them directly? Explain the difference between treatment liens where the provider submits to the jurisdiction of the WCAB versus treatment where the provider refuses to file a lien and bills the worker directly?
These are important discussions, but can be complicated.
Enter into this mix a new legislatively mandated benefit notice requirement. As the DWC website notes:
Labor Code section 138.4 was amended, effective January 1, 2017, by section 1 of SB 1160 to require the AD to adopt regulations, on or before January 1, 2018, “to provide employees with notice that they may access medical treatment outside of the workers’ compensation system following the denial of their claim.”
In response, the DWC recently unveiled draft language, noting that:
The proposed amendment to section 9812(i) will require the Notice Denying Liability for All Compensation Benefits to contain the following statement:
“Although your claim has been denied, if you believe that you still need medical treatment for your injury or illness, you have the right to obtain treatment outside the workers’ compensation system.
“If you have your own health insurance, or are eligible to be treated by someone else’s health insurance, you can use that insurance to get medical care. You should advise your physician that you believe that your injury or illness is work related, so the health insurer can seek reimbursement from the claims administrator.”
A comment forum on this proposed benefit language change has now closed (see link to the comments below).
None of the major workers’ comp stakeholders are satisfied with the proposal. Indeed, it is uncommon to find such agreement. SCIF, CAAA, CWCI, CSIMS and others have weighed in, recommending redrafting. These is rough consensus that-as written- this benefit notice could cause confusion and misunderstanding by the injured worker.
The various comments to the forum on benefit notice language can be found here:
© Copyright 2017 by Julius Young. All rights reserved. Reprinted with permission.
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