How can a worker access medical treatment where the workers’ comp claim is denied?

Julius Young

The answer is unsatisfying, but the truth is ... it depends.

It’s a situation that applicant attorneys often encounter. A worker is sitting in the lawyer’s office wanting advice about options.

Usually the discussion revolves around getting interim treatment while the parties await a determination by a qualified or agreed medical evaluator on industrial causation. But if factual questions exist, the matter may go through discovery, the QME process and an eventual trial and decision by a comp judge. This can be slow as molasses.

Meanwhile, what to do? Seek treatment under a health insurance policy sponsored by the employer or the spouse? Or coverage they have through the Affordable Care Act? These may be more viable options than a few years ago when treatment was routinely rejected if it was for a work injury or a pre-existing condition. Regardless, as a practical matter some providers may refuse to treat if they know a work claim is being made.

Seek treatment at a county hospital or public clinic? This may be an option for some who are eligible for Medi-Cal or other public programs, but will not be available to many workers. And in many smaller counties these options are very narrow.

Seek treatment with a doctor who will wait on payment? In many parts of the state this is not a viable option. In others there have been many doctors who will treat on liens. Lien treatment has been a recurring hot potato in California’s workers’ comp system.

And what to tell the client about his possible direct financial exposure if the health provider bills directly? Explain the difference between treatment liens where the provider submits to the jurisdiction of the Workers' Compensation Appeals Board versus treatment where the provider refuses to file a lien and bills the worker directly?

These are important discussions, but can be complicated.

Enter into this mix a new legislatively mandated benefit notice requirement. As the Division of Workers' Compensation website notes:

Labor Code section 138.4 was amended, effective January 1, 2017, by section 1 of SB 1160 to require the AD to adopt regulations, on or before January 1, 2018, “to provide employees with notice that they may access medical treatment outside of the workers’ compensation system following the denial of their claim.”

In response, the DWC recently unveiled draft language, noting that:

The proposed amendment to section 9812(i) will require the Notice Denying Liability for All Compensation Benefits to contain the following statement:

“Although your claim has been denied, if you believe that you still need medical treatment for your injury or illness, you have the right to obtain treatment outside the workers’ compensation system.

“If you have your own health insurance, or are eligible to be treated by someone else’s health insurance, you can use that insurance to get medical care. You should advise your physician that you believe that your injury or illness is work-related, so the health insurer can seek reimbursement from the claims administrator.”

A comment forum on this proposed benefit language change has now closed.

None of the major workers’ comp stakeholders are satisfied with the proposal. Indeed, it is uncommon to find such agreement. State Compensation Insurance Fund, California Applicants' Attorneys Association, California Workers' Compensation Institute, California Society of Industrial Medicine and Surgery and others have weighed in, recommending redrafting.

This is rough consensus that, as written, this benefit notice could cause confusion and misunderstanding by the injured worker.

Julius Young is an applicants' attorney for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his blog, www.workerscompzone.com.