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(continued)
(e) Requests for duplicate reports shall be in writing. Duplicate reports shall be separately reimbursable and shall be reimbursed in the same manner as set forth in the Official Medical Fee Schedule adopted pursuant to Labor Code Section 5307.1.
(f) This section shall apply to medical-legal evaluation reports where the examination occurs on or after the effective date of this section. The 2006 amendments to this section shall apply to: (1) medical-legal evaluation reports where the medical examination to which the report refers occurs on or after the effective date of the 2006 amendments; (2) medical-legal testimony provided on or after the effective date of the 2006 amendments; and (3) supplemental medical legal reports that are requested on or after the effective date of the 2006 amendments regardless of the date of the original examination.
Note: Authority cited: Sections 133, 4627, 5307.3 and 5307.6, Labor Code. Reference: Sections 139.2, 4061, 4061.5, 4062, 4620, 4621, 4622, 4625, 4626, 4628, 5307.6 and 5402, Labor Code.
s 9795.1. Definitions.
As used in this article:
(a) "Certified" means an interpreter who is certified in accordance with subdivision (e) of Section 11513 of the Government Code or Section 68562 of the Government Code.
(b) "Claims Administrator" means a self-administered insurer providing security for the payment of compensation required by Divisions 4 and 4.5 of the Labor Code, a self-administered self-insured employer, or a third-party claims administrator for a self-insured employer, insurer, legally uninsured employer, or joint powers authority.
(c) "Full day" means services performed which exceed one-half day, up to 8 hours.
(d) "One-half day" means:
(1) When appearing at any Workers' Compensation Appeals Board hearing, daytime arbitration or formal rehabilitation conference, all or any part of a morning or afternoon session.
(2) When appearing at a deposition, all or any part of 3.5 hours.
(3) When appearing at an evening arbitration, all or any part of 3 hours.
(e) "Provisionally certified" means an interpreter who is deemed to be qualified to perform services under this article, when a certified interpreter cannot be present, by (A) the residing officer at an appeals board hearing, arbitration, or formal rehabilitation conference, at the request of a party or parties, or (B) agreement of the parties for any services provided under this article other than at an appeals board hearing, arbitration, or formal rehabilitation conference.
(f) "Qualified interpreter" means an interpreter who is certified or provisionally certified.
(g) "Travel time" means the time an interpreter actually travels to and from the place where service is to be rendered and his or her place of business.
(h) "Market rate" means that amount an interpreter has actually been paid for recent interpreter services provided in connection with the preparation and resolution of an employee's claim.
Note: Authority cited: Sections 133, 5307.3, 5710 and 5811, Labor Code. Reference: Sections 4600, 4620, 4621, 5710 and 5811, Labor Code; and Sections 11513 and 68562, Government Code.
s 9795.2. Notice of Right to Interpreter.
The notice of hearing, deposition, or other setting shall include a statement explaining the right to have an interpreter present if they do not proficiently speak or understand the English language. Where a party is designated to serve a notice, it shall be the responsibility of that party to include this statement in the notice.
Note: Authority cited: Sections 133, 5307.3, 5710 and 5811, Labor Code. Reference: Sections 4600, 4620, 4621, 5710 and 5811, Labor Code; and Sections 11513 and 68562, Government Code.
s 9795.3. Fees for Interpreter Services.
(a) Fees for services performed by a qualified interpreter, where the employee does not proficiently speak or understand the English language, shall be paid by the claims administrator for any of the following events:
(1) An examination by a physician to which an injured employee submits at the requests of the claims administrator, the administrative director, or the appeals board;
(2) A comprehensive medical-legal evaluation as defined in subdivision (c) of Section 9793, a follow-up medical-legal evaluation as defined in subdivision (f) of Section 9793, or a supplemental medical-legal evaluation as defined in subdivision (k) of Section 9793; provided, however, that payment for interpreter's fees by the claims administrator shall not be required under this paragraph unless the medical report to which the services apply is compensable in accordance with Article 5.6. Nothing in this paragraph, however, shall be construed to relieve the party who retains an interpreter from liability to pay the interpreter's fees in the event the claims administrator is not liable.
(3) A deposition of an injured employee or any person claiming benefits as a dependent of an injured employee, at the request of the claims administrator, including the following related events:
(i) Preparation of the deponent immediately prior to the deposition,
(ii) Reading of a deposition to a deponent prior to signing, and,
(iii) Reading of prior volumes to a deponent in preparation for continuation of a deposition.
(4) An appeals board hearing, arbitration, or formal rehabilitation conference.
(5) An informal rehabilitation conference.
(6) A conference held by an information and assistance officer pursuant to Chapter 2.5 (commencing with Section 5450) of Part 4 of Division 4 of the Labor Code to assist in resolving a dispute between an injured employee and a claims administrator.
(7) Other similar settings determined by the Workers' Compensation Appeals Board to be reasonable and necessary to determine the validity and extent of injury to an employee.
(b) The following fees for interpreter services provided by a certified interpreter shall be presumed to be reasonable:
(1) For an appeal board hearing, arbitration, deposition, or formal rehabilitation conference: interpreter fees shall be billed and paid at the greater of the following (i) at the rate for one-half day or one full day as set forth in the Superior Court fee schedule for interpreters in the county where the service was provided, or (ii) at the market rate. The interpreter shall establish the market rate for the interpreter's services by submitting documentation to the claims administrator, including a list of recent similar services performed and the amounts paid for those services. Services over 8 hours shall be paid at the rate of one-eighth the full day rate for each hour of service over 8 hours.
(2) For all other events listed under subdivision (a), interpreter fees shall be billed and paid at the rate of $11.25 per quarter hour or portion thereof, with a minimum payment of two hours, or the market rate, whichever is greater. The interpreter shall establish the market rate for the interpreter's services by submitting documentation to the claims administrator, including a list of recent similar services performed and the amounts paid for those services.
(3) The fee in paragraph (1) or (2) shall include, when requested and adequately documented by the interpreter, payment for mileage and travel time where reasonable and necessary to provide the service, and where the distance between the interpreter's place of business and the place where the service was rendered is over 25 miles. Travel time is not deemed reasonable and necessary where a qualified interpreter listed in the master listing for the county where the service is to be provided can be present to provide the service without the necessity of excessive travel.
(i) Mileage shall be paid at the minimum rate adopted by the Director of the Department of Personnel Administration pursuant to Section 19820 of the Government Code for non-represented (excluded) employees at Title 2, CCR s 599.631(a).
(ii) Travel time shall be paid at the rate of $5.00 per quarter hour or portion thereof.
(c) Unless notified of a cancellation at least 24 hours prior to the time the service is to be provided, the interpreter shall be paid no less than the minimum fee.
(d) Nothing in this section shall preclude payment to an interpreter or agency for interpreting services based on an agreement made in advance of services between the interpreter or agency and the claims administrator, regardless of whether or not such payment is less than, or exceeds, the fees set forth in this section.
(e) The fees set forth in subdivision (b) shall be presumed reasonable for services provided by provisionally certified interpreters only if efforts to obtain a certified interpreter are documented and submitted to the claims administrator with the bill for services. Efforts to obtain a certified interpreter shall also be disclosed in any document based in whole or in part on information obtained through a provisionally certified interpreter.
Note: Authority cited: Sections 133, 5307.3, 5710 and 5811, Labor Code. Reference: Sections 4600, 4620, 4621, 5710 and 5811, Labor Code; and Sections 11513 and 68562, Government Code.
s 9795.4. Time for Payment; Effective Date.
(a) All expenses for interpreter services shall be paid within 60 days after receipt by the claims administrator of the bill for services unless the claims administrator, within this period, contests its liability for such payment, or the reasonableness or the necessity of incurring such expenses. A claims administrator who contests all or any part of a bill for interpreter services shall pay the uncontested amount and notify the interpreter of the objection within 60 days after receipt of the bill. Any notice of objection shall include all of the following:
(1) An explanation of the basis of the objection.
(2) If additional information is needed as a prerequisite to payment of a contested bill or portions thereof, a clear description of the information required.
(3) The name, address and telephone number of the person or office to contact for additional information concerning the objection.
(4) A statement that the interpreter may adjudicate the issue of the contested charge before the Workers' Compensation Appeals Board.
(b) Any bill for interpreter's services which constitutes a medical-legal expense as defined in subdivision (g) of Section 9793 and which is neither paid nor contested within the time limits set forth herein shall be subject to the penalties and interest set forth in Section 4622 of the Labor Code.
(c) This article shall be effective for services provided on and after the effective date of this article which pertain to injuries occurring on or after January 1, 1994. Amendments to this article which became effective in 1996 shall apply to interpreting services provided on or after April 1, 1997.
Note: Authority cited: Sections 133, 5307.3, 5710 and 5811, Labor Code. Reference: Sections 4600, 4620, 4621, 5710 and 5811, Labor Code; and Sections 68562 and 11513, Government Code.
s 9796. Certification of Consulting Physician, How Initiated.
When an injured employee requests an employer to secure certification of a consulting physician under Labor Code Section 4602, the employer shall direct a letter in triplicate to the Division of Industrial Accidents, attention Medical Director, 525 Golden Gate Avenue, Room 201, San Francisco, California 94102, containing the following information:
(a) The name and address of the injured employee;
(b) The name and address of the consulting physician chosen;
(c) The field of practice of the consulting physician.
Note: Authority cited: Sections 124, 127, 133, 138.2, 138.3, 138.4, 139, 139.5, 139.6, 4600, 4601, 4602, 4603, 4603.2, 4603.5, 5307.3, 5450, 5451, 5452, 5453, 5454, and 5455, Labor Code. Reference: Chapters 442, 709, and 1172, Statutes of 1977; Chapter 1017, Statutes of 1976.
s 9799. Criterion for Certifying Competence.
The criterion to be followed by the Administrative Director in certifying the competence of the consulting physician chosen by the injured employee is that the field of practice is related to the injury or the problem for which consultation was requested.
s 9802. Notification by Administrative Director.
The Administrative Director will notify the employer and employee as to the competence of a consulting physician within twelve (12) days of the date of the receipt of the request for such certification.
s 9805. Schedule for Rating Permanent Disabilities, Adoption, Amendment.
The method for the determination of percentages of permanent disability is set forth in the Schedule for Rating Permanent Disabilities, which has been adopted by the Administrative Director effective January 1, 2005, and which is hereby incorporated by reference in its entirety as though it were set forth below. The schedule adopts and incorporates the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment 5th Edition. The schedule shall be effective for dates of injury on or after January 1, 2005 and for dates of injury prior to January 1, 2005, in accordance with subdivision (d) of Labor Code section 4660, and it shall be amended at least once every five years.
The schedule may be downloaded from the Division of Workers' Compensation website at http://www.dir.ca.gov/dwc/dwcrep.htm.
Note: Authority cited: Sections 133 and 5307.3, Labor Code. Reference: Sections 4660, 4662, 4663 and 4664, Labor Code.
s 9805.1. Data Collection, Evaluation, and Revision of Schedule.
The Administrative Director shall: (1) collect for 18 months permanent disability ratings under the 2005 Permanent Disability Rating Schedule (PDRS) effective for injuries occurring on or after 1/1/05 and effective for injuries occurring on or after 4/19/04 and before 1/1/05 where there has been either no comprehensive medical-legal report or no report by a treating physician indicating the existence of permanent disability, or when the employer is not required to provide the notice required by Labor Code Section 4601 to the injured employee; (2) evaluate the data to determine the aggregate effect of the diminished future earning capacity adjustment on the permanent partial disability ratings under the 2005 PDRS; and (3) revise, if necessary, the diminished future earning capacity adjustment to reflect consideration of an employee's diminished future earning capacity for injuries based on the data collected. If the Administrative Director determines that there is not a sufficient amount of data to perform a statistically valid evaluation, the Administrative Director shall continue to collect data until a valid statistical sample is obtained. If there is a statistically valid sample of data that the Administrative Director determines supports a revision to the diminished future earning capacity adjustment, the Administrative Director shall revise the PDRS before the mandatory five year statutory revision contained in Labor Code section 4660(c).
Note: Authority cited: Sections 133 and 5307.3, Labor Code. Reference: Sections 4660, 4662, 4663 and 4664, Labor Code.
s 9810. General Provisions.
(a) This Article applies to benefit notices prepared on or after its effective date. Amendments to this Article filed with the Secretary of State in January, 1994 shall become effective for notices required to be sent on or after April 1, 1994.
(b) The Administrative Director may, at his or her discretion, issue and revise from time to time a Benefit Notice Instruction Manual as a guide for completing and serving the notices required by this Article.
(c) Benefit notice letters may be produced on the claims administrator's letterhead. The notice letters shall identify the employee's name, employer's name, the claim number, the date the notice was sent to the employee, and the date of injury. All notices shall clearly identify the name and telephone number and address of the person responsible for the payment and adjusting of the claim, and shall clearly state that additional information may be obtained from an Information and Assistance officer with the Division of Workers' Compensation. If the employer offers additional disability benefits in addition to those provided by law under workers' compensation, the claims administrator may incorporate the information within the notices required by these regulations. A single benefit notice may encompass multiple events.
(d) The claims administrator shall make available to the employee, upon request, copies of medical reports other than psychiatric reports which the physician has recommended not be provided to the employee.
(e) The claims administrator shall send a copy of each benefit notice, and any enclosures not previously served on the attorney (except benefit notice pamphlets), concurrently to the attorney of any represented employee.
(f) Any deadline for reply which is measured from the date a notice is sent, and all rights protected within the deadline, are extended if the notice is sent by mail, as follows: by 5 days if the place of mailing and the place of address are in the same state of the United States; by 10 days if the place of mailing and the place of address are in different states of the United States; by 20 days if the place of mailing is in and the place of address is outside the United States. All notices shall be mailed from the United States.
(g) Copies of all benefit notices sent to injured workers shall be maintained by the claims administrator in paper or electronic form.
Note: Authority cited: Sections 59, 133, 138.3, 138.4, 139.5(a)(2), 4061(a), (b), (d) and 5307.3, Labor Code. Reference: Sections 138.4, 139.5(a)(3), 4061 and 4650(a) through (d), Labor Code.Authority cited: Sections 59, 133, 138.3, 138.4, 139.5(a)(2), 4061(a), (b), (d) and 5307.3, Labor Code. Reference: Sections 138.4, 139.5(a)(3), 4061 and 4650(a) through (d), Labor Code.
s 9811. Definitions.
As used in this Article:
(a) "Claims Administrator" means a self-administered insurer providing security for the payment of compensation required by Divisions 4 and 4.5 of the Labor Code, a self-administered self-insured employer, or a third-party claims administrator for a self-insured employer, insurer, legally uninsured employer, or joint powers authority.
(b) "Date of knowledge of injury" means the date the employer had knowledge of a worker's injury or claim of injury.
(c) "Date of knowledge of injury and disability" means the date the employer had knowledge of (1) a worker's injury or claim of injury, and (2) the worker's inability or claimed inability to work because of the injury.
(d) "Duration" means any known period of time for which benefits are to be paid, or, where benefits will continue for an unknown period of time the event that will occur which will determine when benefits will terminate.
(e) "Employee" includes dependent(s) in the event of any injury which results in death.
(f) "Employee's (or claimant's) remedies", of which an employee or claimant shall be informed in benefit notices when specified in these regulations, means the right to disagree with the decision; to consult with an Information and Assistance Officer; to consult with and be represented by an attorney; to apply to the Workers' Compensation Appeals Board, or in the case of a vocational rehabilitation dispute to the Rehabilitation Unit, to resolve a dispute.
(g) "Employer" means any person or entity defined as an employer by Labor Code Section 3300.
(h) "Injury" means any injury as defined in Labor Code Section 3208 which results in lost time beyond the date of injury, medical treatment beyond first aid, or death.
Note: Authority cited: Sections 59, 133, 138.3, 138.4 and 5307.3, Labor Code. Reference: Sections 138.4, 139.5(c), (d), 3208, 3300, 3351, 3351.5, 3700, 3753, 4635(a), 4650(a) through (d), 4653, 4654, 4700 and 4701, Labor Code; Sections 11651 and 11652, Insurance Code; Sections 2330 and 2332, Civil Code.
s 9812. Benefit Payment and Notice.
(a) Temporary Disability Notices. When an injury causes or is claimed to cause temporary disability:
(1) Notice of First Temporary Disability Indemnity Payment. The first time the claims administrator pays temporary disability indemnity, the claims administrator shall advise the employee of the amount of temporary disability indemnity due, how it was calculated, and the duration and schedule of indemnity payments. The notice shall be sent no later than the 14th day after the employer's date of knowledge of injury and disability.
(2) Notice of Delay in Any Temporary Disability Indemnity Payment. If the employee's entitlement to any period of temporary disability indemnity cannot be determined within 14 days of the date of knowledge of injury and disability, the claims administrator shall advise the employee within the 14-day period of the delay, the reasons for it, the need, if any, for additional information required to make a determination, and when a determination is likely to be made. The claims administrator shall send an additional notice or notices within 5 days after the determination date it specified, to advise of any further delay. The additional delay notices shall include the employee's remedies and shall comply with all requirements for an original delay notice.
(3) Notice of Denial of Any Temporary Disability Indemnity Payment.
(a) If the claims administrator denies liability for the payment of any period for which an employee claims temporary disability indemnity, the notice shall advise the employee of the denial, the reasons for it, and the employee's remedies. The notice shall be sent within 14 days after the determination to deny was made.
(b) Notice of Resumed Benefit Payments (TD, SC, PD, VRTD/VRMA). If the payment of temporary disability indemnity, salary continuation, permanent disability indemnity, or vocational rehabilitation temporary disability indemnity or maintenance allowance is resumed after terminating any of these benefits, the claims administrator shall advise the employee of the amount of indemnity due and the duration and schedule of payments. Notice shall be sent within 14 days after the employer's date of knowledge of the entitlement to additional benefits.
(c) Notice of Changed Benefit Rate or Schedule (TD, SC, PD, VRTD/VRMA). When the claims administrator changes the benefit rate or benefit payment schedule for temporary disability indemnity, salary continuation, permanent disability indemnity, or vocational rehabilitation temporary disability indemnity or maintenance allowance, the claims administrator shall advise the employee, as applicable, of the amount of the new benefit rate and the reason the rate is being changed, or of the new benefit payment schedule. Notice shall be given before or with the new payment.
(d) Notice that Benefits Are Ending (TD, SC, PD, VRTD/VRMA). With the last payment of temporary disability indemnity, permanent disability indemnity, salary continuation, or vocational rehabilitation temporary disability indemnity or maintenance allowance, the claims administrator shall advise the employee of the ending of indemnity payments and the reason, and shall make an accounting of all compensation paid to or on behalf of the employee in the species of benefit to which the notice refers, including the dates and amounts paid and any related penalties. If the decision to end payment of indemnity was made after the last payment, the claims administrator shall send the notice and accounting within 14 days of the last payment. The notice shall include the employee's remedies.
(e) Permanent Disability Notices For Injuries Which Occurred Prior To 1991. For injuries which occurred before January 1, 1991:
(1) Existence and Extent of Permanent Disability is Known. Within 14 days after the claims administrator knows that the injury has caused permanent disability and knows the extent of that disability, the claims administrator shall advise the employee of the amount of the weekly permanent disability indemnity payment, how it was calculated, the duration and frequency of payments, the total amount to be paid, and the employee's remedies if he or she disagrees.
(2) Existence of Permanent Disability is Known, Extent is Uncertain. If the claims administrator knows that the injury has caused permanent disability but cannot determine its extent within the 14 days after the last payment of temporary disability indemnity, or within 14 days after knowledge that the employee's injury has resulted in permanent disability if there was no compensable temporary disability, the claims administrator nevertheless shall make timely payment of permanent disability indemnity and shall advise the employee of the amount of the weekly permanent disability indemnity payment, how it was calculated, the duration and schedule of payments, and the claims administrator's reasonable estimate of the amount of permanent disability indemnity to be paid.
The claims administrator shall notify the employee that his or her medical condition will be monitored until the extent of permanent disability can be determined and that the disability payments will be revised at that time if appropriate. Within 14 days after the claims administrator determines the extent of permanent disability indemnity benefits, the claims administrator shall notify the employee as provided by paragraph (1).
(3) Existence of Permanent Disability is Uncertain. If the existence of permanent disability is uncertain, the claims administrator shall advise the employee within 14 days after the last payment of temporary disability indemnity, or within 14 days of receiving a claim or medical report alleging the existence of permanent disability if the claims administrator paid no temporary disability, that the claims administrator cannot yet determine whether the injury will cause permanent disability. The notice shall specify the reasons for the delay in determination, the need, if any, for additional information required to make a determination, and when the determination is likely to be made. The claims administrator shall send an additional notice or notices no later than 5 days after the determination date it specified, to advise of any further delay. The additional delay notices shall include the employee's remedies and shall comply with all requirements for an original delay notice. If the reason for the delay is that the employee's medical condition is not permanent and stationary, the claims administrator shall advise the employee that his or her medical condition will be monitored until it is permanent and stationary, at which time an evaluation will be performed to determine the amount of permanent disability indemnity, if any, due the employee. Within 14 days after the claims administrator determines that permanent disability exists, the claims administrator shall notify the employee of the commencement of permanent disability indemnity payments as provided by paragraph (1) or (2).
(4) Notice That No Permanent Disability Exists. If the claims administrator alleges that the injury has caused no permanent disability, the claims administrator shall advise the employee within 14 days after the claims administrator determines that the injury has caused no permanent disability and shall include the employee's remedies.
(f) Permanent Disability Notices for Injuries Occurring in 1991, 1992, 1993.
(1) Condition Not Permanent and Stationary (P & S), May Cause Permanent Disability -Notice of Monitoring Until P&S Date. If the injury has resulted or may result in permanent disability but the employee's medical condition is not permanent and stationary, the claims administrator shall advise the employee, together with the last payment of temporary disability indemnity, that permanent disability indemnity is or may be payable but that the amount cannot be determined because the employee's medical condition has not yet reached a stationary status. The notice shall advise the employee that his or her medical condition will be monitored until it is permanent and stationary, at which time a medical evaluation will be performed to determine the existence and extent of permanent impairment or limitations and the need for continuing medical care. The notice shall advise the employee of the estimated date when a determination is likely to be made, and the claimant's remedies. The claims administrator shall send an additional notice or notices within 5 days after the determination date it specified, to advise of any further delay. The additional delay notices shall include the employee's remedies and shall comply with all requirements for an original delay notice.
(2) Condition Becomes Permanent and Stationary, May Cause Permanent Disability -Notice of Qualified Medical Evaluator (QME) Procedures. Within 5 working days after receiving information indicating that the employee's condition is permanent and stationary and has caused or may have caused permanent disability, the claims administrator shall advise the employee that his or her medical condition is permanent and stationary and of the procedures for evaluating permanent disability and need for continuing medical care, and shall include the employee's remedies.
(3) Notice of Permanent Disability Indemnity Advances When Injury Causes Permanent Disability. If the claims administrator knows that the employee has sustained permanent disability, whether or not its extent is known and whether or not the employee's medical condition is permanent and stationary, the claims administrator shall advise the employee of the weekly permanent disability indemnity payment, how it was calculated, the duration and schedule of payments, and the claims administrator's reasonable estimate of permanent disability indemnity to be paid, within 14 days after knowledge that the employee's injury has resulted in permanent disability, whichever is later.
(4) Notice That No Permanent Disability Exists. If the claims administrator alleges that the injury has caused no permanent disability, the claims administrator shall advise the employee that no permanent disability indemnity is payable. This notice shall be sent within 14 days after the claims administrator determines that the injury has caused no permanent disability. The notice shall also advise the employee of the process to obtain a formal medical evaluation to contest the determination that the employee has no permanent disability and shall advise of the employee's remedies.
(g) Permanent Disability Notices For Injuries Occurring on or after 1/1/94. For injuries occurring on or after January 1, 1994:
All notices in this subdivision shall include the following mandatory language:
" Please call me if you have questions. If you want further information, you may contact the local state Information and Assistance office by calling [enter district I & A office telephone number closest to the injured worker] or you may receive recorded information by calling 1-800-736-7401.
You may also consult an attorney of your choice. Should you decide to be represented by an attorney, you may or may not receive a larger award, but, unless you are determined to be ineligible for an award, the attorney's fee will be deducted from any award you might receive for disability benefits. The decision to be represented by an attorney is yours to make, but it is voluntary and may not be necessary for you to receive your benefits"
(1) Condition Not Permanent and Stationary, May Cause Permanent Disability - Notice of Monitoring Until P&S Date. If the injury has resulted or may result in permanent disability but the employee's medical condition is not permanent and stationary, the claims administrator shall advise the employee together with the last payment of temporary disability indemnity, that permanent disability indemnity is or may be payable but that the amount cannot be determined because the employee's medical condition has not yet reached a stationary status. The notice shall advise the employee that his or her medical condition will be monitored until it is permanent and stationary, at which time a medical evaluation will be performed to determine the existence and extent of permanent impairment or limitations and the need for continuing medical care. The notice shall advise the employee of the estimated date when a determination is likely to be made. The claims administrator shall send an additional notice or notices no later than 5 days after the determination date it specified, to advise of any further delay. The additional delay notices shall include the employee's remedies and shall comply with all requirements for an original delay notice.
(2) Condition Becomes Permanent and Stationary, Causes Permanent Disability - Notice of QME Procedures. Together with the last payment of temporary disability or within 14 days of determining the amount of permanent disability payable, the claims administrator shall advise the employee of the claims administrator's determination of the amount of permanent disability indemnity payable, the basis for the determination, and whether there is need for continuing medical care. The notice shall include the employee's available remedies and:
(A) If the employee is unrepresented, the notice shall advise the employee that if either party disagrees with the treating physician's report, the worker must follow the procedures to request a comprehensive medical evaluation from a panel of Qualified Medical Evaluators supplied by the Industrial Medical Council. The notice shall include the claims administrator's decision on whether the claims administrator accepts or refutes the treating physician's evaluation of the employee's permanent impairment and shall be accompanied by the form prescribed by the Industrial Medical Council with which to request assignment of a panel of Qualified Medical Evaluators.
(B) If the employee is unrepresented and the claims administrator is not requesting a rating from the Disability Evaluation Unit, the notice shall also advise the worker that he or she may contact an Information and Assistance Officer to have the treating physician's evaluation reviewed and rated by the State of California Disability Evaluation Unit.
(C) If the employee is unrepresented and the claims administrator has or will be requesting a rating from the Disability Evaluation Unit on the treating physician's evaluation, the notice shall advise the employee that he or she will be receiving a rating based on the treating physician's evaluation from the Disability Evaluation Unit.
(D) If the employee is represented by an attorney, the notice shall advise the employee that he or she may obtain an additional medical evaluation by an Agreed Medical Examiner or, if no agreement on an Agreed Medical Examiner can be reached, by a Qualified Medical Evaluator of his or her choice, and that arrangements for this evaluation should be discussed with the employee's attorney. The notice shall also indicate whether or not the claims administrator disputes the treating physician's evaluation of the employee's permanent impairment and limitations.
(3) Notice That No Permanent Disability Exists. If the claims administrator alleges that the injury has caused no permanent disability, the claims administrator shall advise the employee that no permanent disability indemnity is payable. This notice shall be sent together with the last payment of temporary disability indemnity or within 14 days after the claims administrator determines that the injury has caused no permanent disability. The notice shall include the employee's remedies and:
(A) If the employee is unrepresented, the notice shall advise the worker that if he or she disagrees with the treating physician's report on which the claims administrator's determination is made, he or she may request a comprehensive medical evaluation from a physician selected from a panel of Qualified Medical Evaluators supplied by the Industrial Medical Council. The notice shall also advise of the procedure for requesting the panel and shall be accompanied by the form prescribed by the Industrial Medical Council with which to request assignment of a panel of Qualified Medical Evaluators.
(B) If the employee is unrepresented, the notice shall also advise the worker that he or she may contact an Information and Assistance office to have the treating physician's evaluation review and rated by the State of California Disability Evaluation Unit.
(C) If the employee is unrepresented and the claims administrator has or will be requesting a rating from the Disability Evaluation Unit on the treating physician's report, the notice shall advise the employee that he or she will be receiving a rating based on the treating physician's evaluation from the Disability Evaluation Unit.
(D) If the employee is represented by an attorney, the notice shall advise the employee that an additional evaluation may be obtained from an Agreed Medical Evaluator or, if no agreement on an Agreed Medical Evaluator can be reached, by a Qualified Medical Evaluator of his or her choice and that arrangements for this evaluation should be discussed with the employee's attorney. The notice shall also indicate whether or not the claims administrator disputes the treating physician's evaluation of the employee's permanent impairment and limitations.
(4) Notice of Permanent Disability Indemnity Advances When Injury Causes Permanent Disability. If the claims administrator knows that the employee has sustained permanent disability, whether or not its extent is known and whether or not the employee's medical condition is permanent and stationary, the claims administrator shall advise the employee of the weekly permanent disability indemnity payment, how it was calculated, the duration and schedule of payments, and the claims administrator's reasonable estimate of permanent disability indemnity to be paid, within 14 days after the last payment of temporary disability indemnity, or within 14 days after knowledge that the employee's injury has resulted in permanent disability, whichever is later.
(h) Notices to Dependents in Death Cases. In a case of fatal injury which is or is claimed to be compensable under the workers' compensation laws of this state, or involving accrued compensation which was not paid to an injured employee before the employee's death, the claims administrator shall advise the dependent(s) of the status of any benefits to which they may be entitled or which they have claimed as a result of the employee's death. As used in this subsection, "dependent" includes any person who may be or has claimed to be entitled to workers' compensation benefits as the result of an employee's death (including compensation which was accrued and unpaid to an injured worker before his or her death), and also includes the parent or legal guardian of minor dependent children. The claims administrator shall send each dependent a copy of all notices concerning benefits claimed by, or which may be payable to, that dependent, including notices sent to a different dependent if the benefits paid to the different dependent affect the amount payable to the other claimant. If the claims administrator discovers a new dependent after having sent a notice, the claims administrator shall send copies of each prior notice which concerned benefits to which the newly-discovered dependent might be entitled, to that dependent.
(1) Benefit Payment Schedule. If the claims administrator pays death benefits (including compensation which was accrued and unpaid to an injured worker before his or her death), the claims administrator shall advise each affected dependent of the amount of the death benefit payable to the dependent, how it was calculated, the duration and schedule of payments and other pertinent information. Notice is required within 14 days after the claims administrator's date of knowledge both of the death and of the identity and address of the dependent.
(2) Notice of Changed Benefit Rate, Amount or Schedule or that Benefits are Ending. If the claims administrator changes the benefit rate, amount or payment schedule, or ends payment, of a death benefit to a dependent, the claims administrator shall advise the affected dependent of the change and the reason for it, or of the new payment schedule. A notice that benefits are ending shall include an accounting of all compensation paid to the claimant. A notice that payment is ending shall be sent with the last payment unless the decision to end payment was made after that payment; in that case it shall be sent within 14 days of the last payment. Other notices concerning changed payments shall be sent before or with the changed payment, but not later than 14 days after the last payment which was made before the change.
(3) Delay in Determining Benefits. If the claims administrator cannot determine entitlement to some or all death benefits, the claims administrator shall advise each affected dependent of the delay, the reasons for it, the need, if any, for additional information required to make a determination, and when a determination is likely to be made. Notice is required within 14 days after the claims administrator's date of knowledge of the death, the identity and address of the affected dependent, and the nature of the benefit claimed or which might be due. The claims administrator shall send an additional notice or notices no later than 5 days after the determination date it specified, to advise of any further delay. The additional delay notices shall include the employee's remedies and shall comply with all requirements for an original delay notice.
(4) Notices Denying Death Benefits. If the claims administrator denies liability for the payment of any or all death benefits, the claims administrator shall advise the claimant of the denial, the reasons for it, and the claimant's remedies. The notice shall be sent within 14 days after the determination to deny was made.
(i) Notice Denying Liability for All Compensation Benefits. If the claims administrator denies liability for the payment of all workers' compensation benefits for any claim except a claim for death benefits, including medical-only claims, the claims administrator shall advise the employee of the denial, the reasons for it, and the claimant's remedies. The notice shall be sent no later than 14 days after the determination to deny was made.
(j) Notice of Delay in Determining All Liability. If the claims administrator cannot determine whether the employer has any liability for an injury, other than an injury causing death, within 14 days of the date of knowledge of injury, the claims administrator shall advise the employee within the 14-day period of the delay, the reasons for it, the need, if any, for additional information required to make a determination, and when a determination is likely to be made. The claims administrator shall send an additional notice or notices no later than 5 days after the determination date it specified, to advise of any further delay. The additional delay notices shall include the employee's remedies and shall comply with all requirements for an original delay notice.
For injuries on or after January 1, 1990, if the claims administrator sends a notice of a delay in its decision whether to accept or deny liability for the claim, the notice shall include an explanation that the claim is presumed to be compensable if not denied within 90 days from the filing of the claim form, and that this presumption can be rebutted only with evidence discovered after the 90-day period.
Note: Authority cited: Sections 59, 133, 138.3, 138.4, 139.5(a)(2), 4636(d), 4637 and 5307.3, Labor Code. Reference: Sections 138.4, 139.5, 4061(a), (b), (d)(e)(f), 4650(a) through (d), 4661.5, 4700, 4701, 4702, 4703, 4703.5, 4903(a) and 5402, Labor Code.
s 9813. Vocational Rehabilitation Notices.
(a) The following notices are applicable to all dates of injury unless otherwise specified:
(1) Notice of First Payment. The first time the claims administrator pays vocational rehabilitation temporary disability or maintenance allowance, the claims administrator shall advise the employee of the amount of indemnity due, how it was calculated, and the duration and schedule of indemnity payments. The notice is due by the 14th day after the employee requested vocational rehabilitation services. The notice shall include, if applicable, the employee's option to add an amount from permanent disability benefits to increase the maintenance allowance payments to the temporary disability rate.
(2) Delay in Providing Vocational Rehabilitation. If upon receipt of a medical report which indicates that an employee is likely to be precluded from his or her usual and customary occupation, or upon receipt of a request for vocational rehabilitation services the claims administrator cannot determine the employee's entitlement to vocational rehabilitation services, a notice of delay shall be sent. The notice shall be sent no later than 10 days from the date of receipt of the medical report or no later than 10 days from receipt of the employee's request for services.
The delay notice shall explain the reason for delay, the need, if any, for additional information required to make a determination and the date by which a determination is likely to be made. The claims administrator shall send an additional notice or notices no later than 5 days after the determination date specified, to advise of any further delay. The additional delay notices shall include the employee's remedies and shall comply with all requirements for an original delay notice.
(3) Denial of Vocational Rehabilitation Benefits. The claims administrator shall advise the employee of its determination that an employee is not a qualified injured worker, the reasons for it, enclosed a copy of the document in which the determination is based and the employee's remedies. The notice shall include a DWC Form RU 103 Request for Dispute Resolution and, if no Rehabilitation Unit case number exists, a DWC Form RU 101 Case Initiation Document. The notice is due within 10 days of either:
(A) A request for vocational rehabilitation services; or
(B) Receipt of a treating physician's final report determining medical eligibility subsequent to 90 days of aggregate total temporary disability; or
(c) Receipt of the document upon which the claims administrator relied for its determination.
If the claims administrator denies liability for rehabilitation services but remains liable for paying VRTD or VRMA benefits, the notice shall explain the distinction between the terminated and continuing rehabilitation benefits.
(4) Interruption or Deferral of Vocational Rehabilitation Services. Within 10 days after agreeing to interrupt or defer vocational rehabilitation services, the claims administrator shall advise the employee of the interruption and the dates it will be in effect. The claims administrator shall send a like notice within 10 days after agreeing to a new or extended period of interruption. The notice shall include an explanation of the specific steps he or she must take to notify the claims administrator that he or she is ready to resume participation (e.g., written or telephonic communication to the claims administrator, the agreed Qualified Rehabilitation Representative or the employee's representative), and information regarding the likely termination of the employee's rights to vocational rehabilitation should the employee fail to request services within 5 years from the date of injury.
If the parties agree to an interruption or deferral which extends beyond the statutory period, the notice shall advise the employee that failure to request services within the agreed upon time frame is likely to terminate the employee's rights to rehabilitation services.
For injuries occurring on or after 1/1/94 where an interruption occurs during a vocational rehabilitation plan, the notice shall explain that the plan must by law be completed within 18 months of approval.
(b) Vocational Rehabilitation Notices for Injuries Occurring Prior to 1990.
(1) Potential Eligibility for Rehabilitation. Within 10 days of receipt of a physician's report or knowledge of a physician's opinion indicating that an employee may be permanently precluded from his or her usual and customary occupation or the position in which he or she was engaged at the time of injury, or if the employee has been totally temporarily disabled for an aggregate of 180 days, the claims administrator shall notify the employee within 10 days of the 180th day of his or her potential eligibility for vocational rehabilitation services. The notice shall include all of the following information:
(A) An explanation of the vocational rehabilitation services and rehabilitation temporary disability benefits available to the employee;
(B) Instructions how the employee may apply for vocational rehabilitation (e.g., by written or telephonic communication to the claims administrator, the agreed Qualified Rehabilitation Representative or the employee's representative);
(C) Notice of the employee's right to participate in selecting an agreed rehabilitation counselor;
(D) Notice that vocational rehabilitation benefits may not be settled or otherwise converted to cash payments;(E) Either an offer of vocational rehabilitation services, or notice of delay or denial notice in accordance with Section 9813(a)(2) or (3). (continued)