CA DWC 1 Form Throws Wounded Workers to Wolves
California law requires the Division of Workers’ Compensation (DWC) to provide clear and concise explanations of workers’ comp benefits to injured workers. This is a sensible requirement by legislators that care about their constituency.
But arguably, the DWC fails to implement this mandate.
According to California law, before the employer accepts or rejects liability for an injury, the employer must approve and provide for all medically necessary treatment up to $10,000. This is true regardless of whether the employer ultimately accepts or rejects liability.
However, the DWC 1 claim filing form undermines this employer requirement by providing arguably misleading instructions regarding injured workers’ access to care — particularly when the employer maintains a Medical Provider Network (MPN).
When an employer fails to approve treatment (as the law requires), the DWC instructs the injured worker to “right away, talk” to a supervisor or the claims administrator. Suppose this chat fails to convince the employer to approve medically necessary treatment; in that case, the DWC instructs the injured worker to use their own health insurance or find a free clinic.
The California legislature clearly intended for the DWC to inform injured workers of their rights upon reporting an injury in the most accessible, understandable way possible. Below, see how the DWC seriously bungles the execution of this mandate.
CA Law: Employer Must Facilitate Care, Share MPN Information
As we explored recently, when an injury is reported to an employer that restricts their employees to MPN doctors, the employer must:
- Immediately arrange (and pay for) an initial medical evaluation visit with an MPN doctor
- Begin medically necessary treatment
For employers that maintain a restrictive MPN, Labor Code Section 4616.3 states (emphasis ours):
“(a) If the injured employee notifies the employer of the injury or files a claim for workers’ compensation with the employer, the employer shall arrange an initial medical evaluation and begin treatment as required by Section 4600.
For those familiar with California workers’ comp law and regulations, there is no question that employers are required to immediately authorize all medically necessary treatment during the period the question of liability is considered. California Labor Code Section 5402 states (emphasis ours):
“Within one working day after an employee files a claim form under Section 5401, the employer shall authorize the provision of all treatment, consistent with Section 5307.27, for the alleged injury and shall continue to provide the treatment until the date that liability for the claim is accepted or rejected. Until the date the claim is accepted or rejected, liability for medical treatment shall be limited to ten thousand dollars ($10,000).”
Even if the employer maintains a restrictive MPN, California Code of Regulations Section 9767.6 requires the employer to “provide for all treatment” (emphasis ours):
Within one working day after an employee files a claim form under Labor Code section 5401, the employer or insurer shall provide for all treatment, consistent with guidelines adopted by the Administrative Director pursuant to Labor Code section 5307.27 and as set forth in title 8, California Code of Regulations, section 9792.20 et seq.
Of course, the average injured worker is not familiar with California workers’ comp law and regulations — which is why California legislators (representing injured workers throughout California) require the DWC to step in and help by explaining workers’ rights to their constituents.
Sadly, for injured workers throughout California, the DWC’s “help” hardly qualifies as such.
DWC 1 Form Misinforms Injured Workers
Labor Code Section 5401 requires the employer to provide injured workers with a claim form to report their injury. The Labor Code further requires the DWC to craft a document that outlines the injured workers’ benefits in a way that’s “easily understandable.” That includes sharing information regarding:
“(7) How to get medical care while the claim is pending.”
The good news is that the DWC 1 Form does explain that the employer or claims administrator must authorize up to $10,000 in treatment until the claim is accepted or rejected (emphases ours):
“Within one working day after you file a claim form, your employer or the claims administrator must authorize up to $10,000 in treatment for your injury, consistent with the applicable treating guidelines until the claim is accepted or rejected.”
However, if the employer fails to adhere to California law and fails to approve medically necessary treatment, the DWC 1 instructs the injured workers to “right away, talk” with the employer or claims administrator, presumably to plead for treatment authorization (emphases ours):
If the employer or claims administrator does not authorize treatment right away, talk to your supervisor, someone else in management, or the claims administrator. Ask for treatment to be authorized right now, while waiting for a decision on your claim.
Even more alarming, if that “talk” fails, the DWC 1 form instructs the injured worker to use their private health insurance or to find a doctor who does not require payment for that medically necessary treatment (emphases ours):
If the employer or claims administrator will not authorize treatment, use your own health insurance to get medical care. Your health insurer will seek reimbursement from the claims administrator. If you do not have health insurance, there are doctors, clinics or hospitals that will treat you without immediate payment. They will seek reimbursement from the claims administrator.
Rather than ensuring injured workers’ access to benefits to which they are clearly entitled, the DWC throws wounded workers to the wolves. The DWC 1 instructions assume that the injured employee has the knowledge and wherewithal to convince a supervisor or the claims administrator to authorize treatment — something that should happen automatically.
Looking at the DWC 1 form, one could be forgiven for thinking that it’s the injured worker’s job to enforce workers’ comp laws and regulations rather than the DWC’s.
DWC Abandons Injured Workers
Doctors repeatedly report to daisyBill that injured workers’ attorneys call their practices desperate to find physicians willing to treat their clients when the question of liability has not been settled.
Sadly, it’s 2023 — which means all doctors (should) know by now that treatment provided to an injured worker without claims administrator approval is likely to be free treatment. Doctors (should) know not to rely on the DWC to enforce the legislative mandates that treatment be authorized and that authorization guarantees payment, regardless of MPN status.
Accordingly, what should an injured worker do when employers fail to approve medically necessary treatment prior to the liability decision, and their “talk” fails?
No real option is listed on the DWC 1, unless you (like the DWC) count private insurance or seeking free care. When the DWC’s official instructions for injured workers — who have a legal right to treatment — include relying on the kindness of strangers, something is deeply wrong.
Learn how workers’ comp e-billing works (and what can go wrong) at our free live min-lesson + Q&A on November 2. Sign up and submit your questions below.
SIGN UP & SUBMIT QUESTIONS
DaisyBill provides content as an insightful service to its readers and clients. It does not offer legal advice and cannot guarantee the accuracy or suitability of its content for a particular purpose.
.gif)
It is hard to imagine how this system could be more tortured, frustrating, broken and unfair to injured workers. In my almost 40 years of experience, every year it gets worse, since there appear to be no consequences for carriers ignoring the laws, much less the pleas of people hurt at work. Most injured workers are sent to large industrial medical centers. Some of these seem to be reasonable and conscientious. Others appear to be focused on minimizing or ignoring injuries. I have seen many patients who complain about ignored injuries summarily declared P&S with no PD and no need for any other care, despite serious ongoing injuries. Sometimes these folks end up with me as their PTP. Often they are subject to what I call the “bright shiny object.” Case in point: the guy who fell off a 3rd story scaffold and shatters his ankle. The focus is on the “bright shiny object,” in this case the ankle. Never mind the neck injury, knee and low back. They are ignored, often for months. When I first see them months later, they say, “I have been telling the doctors about these other problems forever and they ignore them.” It takes a QME, many months later, to force the carrier to assume care and liability. This would NEVER happen in the private care realm, and is an unconscionable way to treat people hurt at work. None of this will change until everyone who sees and treats or represents IW’s begin to raise their voices, loudly. We need to help patients contact their legislators to tell their stories, and do so as well. The laws won’t change if the legislature doesn’t perceive a problem. No complaints, no problem! And only the Legislature can fix this. Insist the DWC follow the laws and regulations which are zealously applied to providers, but not carriers. The laws need to be changed and will not until enough legislators hear from constituents to understand there is a huge problem. Thank you daisyBill for keeping things real and up front! Wayne Whalen DC
We recently opted out of the MPN's due to deep cuts in practice revenue for PPO reductions taken from our payments. Now we have a case that the injured worker was injured at the end of August and they just had their Initial Eval here in the middle of October. Now we are fighting for follow up visits to be authorized and they will only pay 80% of the fee schedule. We, having empathy for the injured worker, agreed to the Letter of Agreement. That letter of agreement has so many hoops and barrels we have to jump through and over with repeated reminders that they may still deny payment. We are still taking a chance that we will put all the required ducks in a row and pray they will pay for treatments rendered. It is absolutely ridiculous. Certainly a broken system. In addition, I challenge anyone to try to go to a doctor that is not on a list of approved doctors and be seen. They will not treat you. They hear it is a work comp injury and they will turn you away. It happen to me. I had to fight every step of the way.
I always tell people to avoid going through the comp system at all for this very reason. Unfortunately, not everyone can be so lucky as to avoid using this system, so it's a real shame that it's in the state that it's in. There is a serious need for reform in the system and it's definitely time for it to be on the Claims Admin side for once. Providers and patients have been getting the squeeze for so long that they think it's normal. The DWC seems to think that a worker who robustly advocates for their rights will be subject to no adverse consequences - how many workers have stories of asking for even the barest of necessities or medical treatment only to be mistreated after the fact. How much worse it when the worker has the temerity to DEMAND authorization for treatment? And for what? The cost of doing business? Shameful, simply shameful.
Readers are going to despise me for this but here it goes anyway....What really irks me about all of this is that the medical providers who took advantage of the system years ago are to blame for ALL OF THIS...The Dr. Sobols....the Pacific Hospitals of Long Beach....the Premier Medical Managements and everyone who played a part in that fiasco (all of public record by the way) are 100% to blame. At one time, Workers Comp wasn't that bad but these already rich greedy physicians, chiropractors, physical therapists, acupuncturists, and pharmacies screwed it up for the rest of us. 24 PT, OT, and Chiro wasn't always a thing. I remember seeing 200 chiro visits for an elbow injury. 100 acu visits for an ankle. Give me a break. Compound medications, drug testing, sleep studies for every injury under the sun, the psych evals, the billing 99358 & 99359 with EVERY DOS, has destroyed the system and now we are left scrambling to get patients the case they need. I think the readers need a little more transparency as to why the system is the way that is and perhaps a little guidance on how we can fix the system together by avoiding overtreating unnecessarily. Break it down with pieces of data that prove why the DWC has taken these drastic steps these past recent years. These over treaters need to see how they contribute to the problem and how it affects injured workers. There is light at the end of the tunnel if you choose to see it.