Summary: Your ability to retain control over the medical treatment of your injured employee is a given unless you do not follow the rules regarding the treatment of an injured employee. It is in the initial stages of the claim that you are most vulnerable and subject to having your control taken away.
Just when you thought that everything was settling down, the "Slither-Ins" from the Dark Side have once again reared their ugly heads. The latest and ongoing attempt to seize control over your claims goes like this:
Employers currently have a minimum of 30 days within which to control the medical treatment of an injured employee. This remains true unless the employee has correctly "Pre-designated" his or her Primary Treating Physician before the injury. If you are smart enough to have a Health Care Organization (HCO) in place, you have a minimum of 90 and possibly 180 days of absolute medical control over the claim. Or, if you have put a Medical Provider Network (MPN) in place, you have cradle-to-grave control over the medical treatment of your injured employee if it is handled correctly by both you and your insurance carrier.
Your ability to retain control is a given unless you do not follow the rules regarding the treatment of an injured employee. It is in the initial stages of the claim that you are most vulnerable and subject to having your control taken away by an attorney/doctor team from the dark side if you do not strictly follow the letter of the law. However, do not despair as we have once again been forewarned of their latest tactic and are ready to meet them head-on.
You Have To Open The Mail Every Day
The current law (L/C 5401) says "Within one working day of receiving notice or knowledge of injury under Section 5400 or 5402, in which an injury results in lost time beyond the employee's work shift at the time of injury or which results in medical treatment beyond first aid, the employer shall provide, personally or by first class mail, a claim form and notice of potential eligibility for benefits."
This is the first place that the applicant's attorney is going to try to get you. If you have not provided the Workers' Compensation Claim Form (DWC-1) to the injured employee, they will claim that you failed to follow the law and will attempt to seize control regardless of the medical control program you have in place. It is therefore important that this requirement be strictly adhered to by the person within your organization who you have designated as being responsible for watching your workers' comp claims.
Next, current law (L/C 5402) says "Within one working day after an employee files a claim form (DWC-1) under Section 5401, the employer shall authorize the provision of all treatment,... for the alleged injury and shall continue to provide the treatment until the date the liability for the claim is accepted or rejected..."
In a previous article, I recommended that each of you change your policy regarding how you deal with the DWC-1 when there is an injury. I stated that it is "best practice" for you to have the injured employee complete the top part of the DWC-1 in their own handwriting at the time of the injury. This gives you a record of what allegedly happened (in the employee's own words) and signed by them. If you receive an amended DWC-1 later from an attorney, we then have a basis to object to the added body parts.
You should then fill in the bottom half of the DWC-1 and give them a completed copy. Under this scenario, you have complied with the labor code and can then either accept the claim or delay it while you investigate the incident to see if it really is work related. The need for this approach has become clearer with the current filing of claims we are seeing.
In a recent claim, the employer's failure to timely provide treatment caused him to lose control of a claim that was covered by his Medical Provider Network. The first the company heard from the employee was through a fax sent by an attorney. The rule on receiving notice by ax is the same as if it comes by mail, i.e. you add 4 days to the notice.
So, if you were to receive a fax on Thursday, you add 4 days and the following Monday becomes your official notice date. Several lawyers have tried to use the date of the fax as their official notice trying to gain medical control because the employer did not act timely in getting the injured employee in for treatment. The law is clear that in order for the date of a fax to be effective as notice, both parties must agree in writing for the fax notice to be effective. So watch these carefully and call if there is ever a question.
Another employer also received a letter from the injured employee's attorney which contained a DWC-1 for his alleged specific injury along with another DWC-1 for a cumulative trauma (CT) claim. The forms were mailed to the employer and not the claims examiner. The letter sat on a desk for several days and was not dealt with in a timely manner. The person designated to handle the company's workers' comp program had not been properly trained in the new rules so that the attorney's letter sat for 4 days on her desk before she decided that it might be important enough to open and should be forwarded to their carrier.
Because of the delay in dealing with the alleged injury, medical control over the claim was lost. The employer had failed to authorize treatment (L/C 5401) within 24 hours as required by the statute as well as failing to have the employee seen by a doctor within 3 days as required by the Medical Provider Network statute (L/C 4616). So what is the message here?
If you have not already done so, review your internal policy regarding how you handle claims, especially the provision of dealing with the DWC-1 form when there is an injury. I again strongly recommend that you have the employee fill out the top part of the form first and you do the same for the bottom section giving a completed copy of the form back to the employee and documenting that you did so.
Next, you must open your mail and deal with it every day. This is the only way that you will protect yourself from attacks from the Dark Side.
Stu Baron is a nationally recognized expert on managing workers’ compensation claims. He is both President of Workers’ Compensation Claims Control and a principal in the law firm of Stuart Baron & Associates. Stu has been heavily involved in advocacy in Sacramento. He is quoted frequently by major workers’ compensation and trade journals.
More articles, videos, and podcasts by Stu Baron:
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SB 863 Valdez Revisited
Medical Provider Networks – Valdez v. Zurich North America
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