The Art of Workers’ Compensation

The Los Angeles Times recently reported that State employers are recognizing a benefit from the 2004 Workers’; Compensation reform. Employers are currently receiving an almost 15% reduction in Workers’; Compensation insurance premiums, but what about injured employees?

Recent reports have indicated a 50-70% reduction in Workers’; benefits. Was the Workers’; Compensation benefit delivery system enacted to provide benefits to an employer? Why aren’t employers insurance premiums reduced commensurate with the reduction in insurance expenditures realized?

In April of 2004 Governor Schwarzenegger signed into law Senate Bill 899. The newly enacted legislation stripped employees of their ability to freely obtain medical treatment and procure forensic medical evidence to prove disability claims. The new law also substantially lessened the benefits provided to an injured employee. A number of people have asked me to provide instruction for navigation through the new Workers’; Compensation Gauntlet.

When an Employee sustains a potentially work related injury he/she is required to report that injury to his/her employer. Current law allows an employer to set up and maintain a Managed Physician Network (MPN). If an Employer has established an MPN, then all injured employees are required to receive initial treatment through the MPN. There is a potential to avoid MPNs By an employee Pre-Designating a Physician prior to an industrial injury. It is highly recommended that all employees Pre-Designate a personal Physician immediately.

If either the employer or the employee disputes the treating Physician, either party may request a state panel Qualified Medical Evaluation (QME). If an injured worker does not have a lawyer, a state panel QME form can be obtained from the employer’s Third Party Administrator (TPA) and submitted to the Administrative Director. The State of California through the Administrative Director will tender a three member panel from which the employee may select a Physician. Once a Physician is selected and a report prepared, the doctor’s findings will determine the employee’s benefits. This Russian roulette style Workers’; Compensation system is still in its infancy and the true impact has yet to be felt. Will injured workers be returned to work before they have had a chance to adequately recover? Will these Physicians be adequately versed in the job classifications requirements of the various safety members?

Currently, determinations of Permanent Disability (percentage of Disability) are to be calculated based upon the conservative American Medical Association (AMA) Guidelines Fifth Edition, yet Physicians are still asked to comment on Work restrictions. Theoretically, an employee can receive a 0% rating (AMA guides) , however he/she can also be precluded from returning to his/her employment (work restrictions). I have read articles indicating that employees can now get disability without fear of work restrictions, but based upon the newly enacted Treating Physician reporting guidelines I strongly disagree and caution anyone contemplating this approach. Disabling conditions can still lead to early retirement.

I routinely tell my clients that they should be documenting on the job exposures. Exposures would include any chemicals from fires, clandestine drug labs, combusted fuels (particularly diesel), asbestos and the myriad of other potentially toxic substances that safety members come into contact with. The reason for logging exposures is to protect yourself should you develop an illness that may be related to that exposure (i.e. Cancer, kidney failure, heart failure, pulmonary illness).

While there are still certain presumptions that protect safety members, these claims are routinely denied by the insurance carriers. The ability to provide the examining physicians and courts with a listing of exposures can prove critical in prevailing on your case. Keep in mind that logging of physical injuries can be treacherous because those injuries should be reported and litigated once sustained. In other words if you hurt your back, you are required to report that injury and resolve any issues of disability. There is a certain period of time in which this needs to be done known as a Statute of Limitations. If you fail to bring an action within the statutory period of time you may be barred from ever bringing that claim. A number of my clients will indicate to me that there back has never been the same since that 1972 injury.Well, now we are sitting here over 30 years later and the employer is going to point to that old injury and blame it for any current disability and argue that the time for filing that claim has passed. What do we do?

Injuries can be specific or cumulative in nature. A specific injury is when you are injured at a specific time. A cumulative trauma is a series of micro traumas; that have led to your disability. If you have been working for a period a time in an arduous position, it is conceivable that your body will break down over time causing injury. The time frame for filing a continuous trauma claim can be quite different from that of a specific injury. Always consider the possibility that your injury may have occurred over time.

I would recommend consulting with an Attorney who specializes in Workers’ compensation laws as to the various statutes of limitations as well as any filing procedures. Attorney consultations should be free and you should not feel any pressure to file a case or retire from your position.

Straussner Sherman