A Santa Rosa workers’ compensation lawyer examines new legal issues that might affect injured employees in 2017
Workers’ compensation law in California changes every year. Dedicated Santa Rosa workers’ compensation lawyers keep track of those changes as part of our obligation to protect the rights of our clients. Here are some of the issues we are watching in 2017.
1. Access to Necessary Medications
California is implementing a “drug formulary” for the workers’ compensation system. In simple terms, a drug formulary is a list of drugs for which workers’ compensation insurance will usually pay. While the new rule will not necessarily make it impossible for an injured worker to obtain payment for a prescribed drug that is not on the “approved” list, workers’ compensation claims administrators will have an incentive to refuse payment of nonapproved drugs, forcing injured workers (and their Santa Rosa workers’ comp lawyer) to fight for the health coverage to which they are entitled.
Drug formularies are meant to reduce overall prescription drug costs. Formularies are used by some private health insurance plans and by Medicare, with mixed success. Some evidence suggests that drug formularies can impair patient treatment. Workers’ compensation attorneys in Santa Rosa will wait to see whether the California’s workers’ compensation drug formulary provides adequate protection of injured workers.
2. Expanding Coverage
Workers’ compensation covers nearly all employees in California, but in the past, certain people could choose to be excluded. Those people primarily fell into the category of business owners, including officers and directors of a privately held corporation who are its sole shareholders and some members of partnerships and limited liability companies.
A change in the law that took effect in 2017 requires workers’ comp insurance companies to cover some of the employees who were previously excluded, including any officer or director of a corporation who owns less than 15% of its stock and is paid for the work he or she performs for the corporation. Some partners and LLC members who receive compensation other than profit distributions must also be covered.
The change in the law went largely unnoticed by the insurance industry until it took effect. That has made some insurers unhappy, but it is a benefit for those owner-employees who now cannot be deprived of workers compensation benefits for work-related injuries.
3. Protection of Pregnant Employees
Under current law, a doctor who prepares a permanent and stationary disability report must determine the percentage of the disability caused by the work-related injury and the percentage caused by other events, including prior or subsequent injuries. Disability benefits are reduced in proportion to the percentage of causation that is attributed to those other events.
For example, if an injury was caused by a work accident and then was worsened by a second accident that occurred at home, a physician might determine that 70% of the permanent disability was caused by the work injury and 30% by the accident at home. The injured worker would then receive 70% of the permanent disability benefits that would have been awarded if the work injury had been the only cause of the disability.
If it is enacted, Assembly Bill 570 will prohibit workers’ compensation insurance companies from treating pregnancy or a pregnancy-related health condition as an event that contributed to the permanent disability. Supporters of the bill believe it will remove gender-bias from the workers’ compensation system, since pregnancy is an event that only affects female employees.
4. Proposals to Weaken Coverage
Business groups, including the California Chamber of Commerce, often advocate workers’ comp “reforms” that are actually meant to weaken the system. They complain that California’s workers’ comp premiums are the highest in the nation, but they never mention that the California economy has one of the strongest growth rates in the nation. The state’s steadily declining unemployment rate makes it difficult to argue that workers’ compensation premiums are harming California’s business climate.
In addition, the insurance industry often urges “reform” packages to fight fraud. In recent years, the industry succeeded in limiting chiropractic and physical therapy coverage by claiming that injured workers otherwise receive “endless” treatment. The fact that the treatment provides pain relief for injured workers did not stop the industry from arguing that the treatment is fraudulent.
More proposals to weaken coverage may be on the horizon. For example, the insurance industry wants to shorten the time in which employees can make a claim for a “cumulative trauma” injury after the termination of employment. A cumulative trauma injury is one that develops over time, such as carpal tunnel syndrome.
Employees often fail to realize that a slowly-developing injury is work-related until after employment ends, when a doctor diagnoses the likely cause of the injury. Preventing injured workers from receiving the benefits to which they are entitled when it is clear that their injuries were caused by their jobs is not consistent with the purpose of the workers’ compensation system.
Fraud does exist in the workers’ compensation system, however, much of it is perpetrated by employers and medical providers not injured workers. For example, the Department of Industrial Relations acknowledges that the deliberate (and fraudulent) underreporting of payroll by employers plays a significant role in rising insurance premiums.
Reducing benefits for injured workers is the wrong approach to fighting fraud. The focus should be on prosecuting people who break the law, not simply on punishing injured workers.
Helping Injured Workers in the Santa Rosa Area
Workers’ compensation lawyers in Santa Rosa and elsewhere in California must always make their voices heard as vigilant advocates for injured employees. To learn how a Santa Rosa workers’ compensation attorney can help you, call Kneisler & Schondel at (707) 542-5132 or send us a question using our online contact form.