Protecting Your Rights: The First 90 Days of a Workers' Compensation Claim
By Keith C. Mackenzie, Esq.
Associate, Gordon, Edelstein, Krepack, Grant, Felton & Goldstein, LLP
Reporting a work-related injury to one’s employer and formally filing a Workers’ Compensation claim can be an intimidating proposition. Many workers don’t fully understand their rights and fear retaliation from their employer should they file such a claim. Others fail to pursue legitimate claims out of a misguided sense that someone filing a Worker’s Compensation claim is trying to get away with something, or is somehow taking advantage of their employer or “the system.”
What you might not realize is that the Workers’ Compensation system exists to protect employers, not penalize them. In most instances in California, workers who are injured on the job are legally prohibited from suing their employers in civil court. This is true even where a worker is injured through gross negligence on the employer’s part. This prohibition exists to protect businesses from incurring prohibitively expensive litigation costs whenever an employee sustains a work-related injury. The tradeoff is that employers are required to carry Workers’ Compensation insurance or to be permissibly self-insured to allow for a system to assist injured workers in receiving benefits, including medical treatment and monies, in an expeditious manner.
You should advise your employer immediately if you have suffered a work-related injury. The timelines and rules outlined here apply to the first 90 days after a claim is filed. It is important to understand these so that you receive the full range of benefits to which you are entitled.
1. Once an employee has notified the employer of a work-related injury, the employee should be provided with a Workers’ Compensation Claim Form, known as a DWC-1, to complete. Presenting a completed DWC-1 form to an employer initiates the Workers’ Compensation claim process. Verbally reporting the injury is not sufficient to trigger an employer’s responsibility to initiate benefits. Be sure to keep a copy of the form for your records as it is one of the most important documents in your case.
2. Within 14 days of receipt of the Claim Form, the employer must accept, reject or delay a decision regarding the industrial injury claim. If the claim is put on delay, the employer has 90 days to determine whether to accept the claim. During this delay period, the employer is required to furnish up to $10,000 worth of medical care to the injured worker. The employer is not, however, required to pay temporary disability benefits for wage loss during this delay period. Therefore, if the employee is off of work because of the injury, and the employee paid into the State Disability Insurance (SDI) system or has some other disability policy through work, he or she should apply for these benefits.
3. One of the most important issues during the beginning stages of a Workers’ Compensation claim is deciding when and where to begin medical treatment. The employer is legally entitled to choose the medical provider for the first appointment. However, many injured workers are under the mistaken impression that they must continue treating with this initial physician. It is the employer’s duty to notify injured workers of the existence of what is known as a Medical Provider Network (MPN), which is a list of preapproved doctors from which an injured worker can choose.
Usually, such notification comes in the form of a letter with a website the worker can go to find a doctor. An injured worker can pick a new doctor off the MPN immediately after the first visit with the assigned company doctor. Not all employers have MPNs. In this case, the employer has medical control for the first 30 days, then an injured worker can designate any doctor who accepts Workers’ Compensation insurance starting 30 days after the employer’s receipt of the Claim Form. Often times injured workers reach out to an experienced Workers’ Compensation attorney during the early stages of an injury claim to seek assistance in identifying a qualified treating physician, as prompt and effective medical treatment can assist an injured worker in making a speedy recovery.
4. In some cases, the insurance company will request a panel Qualified Medical Evaluation (PQME) with a state PQME within the first 90 days. Sometimes such an evaluation will be completed as part of the employer’s investigation of the claim, during the first 90 days, to assist them in evaluating whether to accept or deny the claim. The outcome of this evaluation can have a great impact on your case and often times an injured worker will seek the advice of experienced legal counsel before seeing a PQME.
If the claim is not denied within 90 days, an injury will be “presumed compensable,” meaning that the injury will be accepted and the employer is barred from presenting evidence to the contrary if that evidence could have been obtained during the 90-day period. This consequence proves to be a great advantage to the injured worker.
The first 90 days will generally set the tone for the entire Workers’ Compensation claim process. Not acting immediately and deliberately to protect your rights can impact the manner in which your entire claim proceeds. It is important to know that an injured worker has the right to retain counsel before filing the Claim Form or for assistance in filing it, and any time after it is filed.