A Santa Rosa workers’ compensation lawyer explains changes to California’s workers’ compensation law in 2018

workers compensation changesThree changes to California’s workers compensation laws are effective in 2018. Fortunately, while workers’ compensation insurance companies are always lobbying to weaken the protections of injured workers, none of the changes make the law worse for injured employees.

Expanded Treatment for Terrorist Attacks

A mass shooting at the Inland Regional Center in San Bernardino in 2015 motivated a new law that expands treatment available for workers who are injured in attacks while on the job. The primary author of the law explained that workers who were injured in San Bernardino experienced unacceptable delays in receiving treatment, particularly mental health care for traumatized workers.

The new law applies to “victims of acts of domestic terrorism” whose injuries “arise out of and in the course of employment.” The law defines an act of domestic terrorism as an illegal act committed within the United States that is dangerous to human life and that appears to be intended

  • to intimidate or coerce civilians; or
  • to influence government policy by intimidation or coercion; or
  • to affect the government’s conduct by mass destruction, assassination, or kidnapping.

The law applies only if the governor declares a state of emergency related to domestic terrorism. The law requires employers to provide employees injured in an act of terrorism with a nurse case manager and with information about available treatment options. The nurse case manager must be provided immediately and must be qualified to address terrorism-related injuries, including mental health injuries.

Although the law might make resources available to victims more quickly, advocates of the San Bernardino victims complain that the original bill was watered down to satisfy the business community. The original bill would have bypassed the utilization review process that determines whether a workers compensation insurance company must pay for recommended treatment. It was the cumbersome utilization review process that delayed access to services that the San Bernardino victims desperately needed.

Exclusion from Workers Compensation

Workers compensation is meant to cover all employees, with very limited exceptions. For example, a business owner who forms a corporation but is the only employee of that corporation might be exempt from workers’ compensation coverage. Being exempt means the owner does not need to purchase workers’ compensation insurance but will not receive workers’ compensation benefits for a work-related injury.

Officers and directors of corporations are generally covered by workers’ compensation if they are paid for services provided to the corporation. However, certain corporate officers and directors are allowed to waive workers’ compensation coverage if they own at least 15% of the stock issued by the corporation. Similar waiver provisions apply to general partners in a partnership and to managing members of a limited liability company.

A new law expands the ability to waive coverage, as of July 1, 2018, to include officers and directors who own at least 10% of the stock of the corporation, as well as officers and directors who own at least 1%, if certain relatives own at least 10% and if the person waiving workers’ compensation coverage has health insurance. The law also permits members of a professional corporation to waive coverage if they provide health insurance to all employees of the corporation. Law firms and medical practices are common examples of professional corporations.

The changes generally enable owners of small businesses to elect to use their own health insurance rather than workers’ compensation insurance. The law includes certain safeguards to ensure that business owners do not fraudulently classify employees as exempt officers or directors in order to avoid including them in the business workers’ compensation insurance coverage.

Utilization Reviews for Emergency Services

Medical treatment covered by workers’ compensation is generally subject to a “utilization review” (UR) process. The insurance company will review recommended treatment to determine whether it is appropriate and necessary pursuant to specific medical guidelines. Insurance companies argue that the reviews lead to cost savings. Advocates for injured workers argue that the insurance companies use the UR process to simply deny claims. Denials of necessary medical care which delays treatment and ultimately costs society more by preventing injured workers from getting the prompt medical attention they need in order to return to work.

A change in the law this year exempts some treatments which are rendered within the first 30 days of a work injury from the utilization review process. This change benefits only injured workers whose injuries occurred on or after 01/01/18, and only in very limited situations.

If you have questions about whether or not treatment your doctor wants you to have in the first 30 days following a work injury should be exempt from the UR process contact a Santa Rosa workers’ compensation attorney at Kneisler & Schondel at (707) 542-5132. You can also ask us a question by submitting our online contact form.