Managing Employee Injuries and Disability and Occupational Safety

WCAB P ROCEDURES AND A DMINISTRATION OF THE S YSTEM

Section 5

A. I NTRODUCTION

All disputed claims for workers’ compensation are administered by the Workers’ Compensation Appeals Board. The courts are available for appeal of decisions by the Board.

1. N OTICES As a prerequisite to recovering benefits, an employee must notify the employer of the injury within 30 days of its occurrence. Labor Code Section 5400. However, an employee’s failure to comply with the notice requirement will be excused if there is actual knowledge by the employer of the injury. Labor Code Section 5402. The notice requirement will also be excused if the lack of compliance has not prejudiced the employer. Labor Code Section 5403. The employer is required to provide the employee with a claim form within one day after the employer has knowledge of the injury. The employee then files an “application” with the employer. Filing of the form tolls the statute of limitations and imposes an obligation on the employer to either accept or reject liability within 90 days after receiving the written claim. If the claim is not rejected, it is presumed that the injury is compensable. 2. M EDICAL L EGAL P ROCEDURES In lieu of the employee or employer freely selecting an examining doctor, reference must first be had to a panel of Qualified Medical Evaluators (QMEs) who are appointed by the Industrial Medical Council. If the employee is represented by an attorney, the parties must first attempt to agree on an examiner. For injuries until January 1, 2013 the QME process is used only with respect to issues of temporary disability, permanent partial disability, need for future medical treatment, new and further disability, nature of medical treatment, permanent and stationary status, or the employee’s ability to engage in his usual occupation. Where an issue of medical causation is involved, the QME process is not used. The former system of medical legal evaluation, wherein the employee or employer could freely select a physician, is utilized. Labor Code Section 4065. All disputes, including if the injured worker needs a medical-legal evaluation to prove a denied claim, will go to panel QME’s. The Administrative Director must send the party declaring the dispute a panel of three QMEs to pick from within 10 days. If the employee is represented by an attorney, an agreement to use an AME can be sought. However, it appears that if no agreement can be reached, the dispute must be submitted to the QME process. The parties are no longer able to pick their own QME’s. The filing of the application also permits the parties to conduct discovery and to obtain medical evaluations to evaluate disability and need for future medical treatment.

Managing Employee Injuries, Disability and Occupational Safety ©2019 (s) Liebert Cassidy Whitmore 45