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Kind of a tricky situation California

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  • Kind of a tricky situation California

    Good morning all, we have a situation here and need some help.
    I know in CA the satutue of limitations for claiming a WC injury is one year.
    Well, back in 2008 one of our employees was involved in a vehicle accident, during the course of employment.
    At the time, he did not want a WC claim and decided to handle it himself, so no claim form was provided to him (I know, big mistake on our part, but I was not involved).
    Now his Attorney wants WC to pay and our controller wants to know if he is still within his rights to do so or if he has exhausted his timeframe.
    Appreciate your help in this matter.

  • #2
    As you had knowledge of the accident/injury at the time, you have the liability in hand. Whether there were benefits provided or not is not a determination of compensability.

    Turn the claim over to your carrier, let them investigate and determine whether or not to accept/deny. Thats what the IC is there for.

    On the other hand, if you are legally self insured... you'll have to administer the claim, and pay the benefits as due.

    You also have the right to recover/subrogate any benefits you pay from any 3rd party recovery by the injured worker.
    At the time, he did not want a WC claim and decided to handle it himself, so no claim form was provided to him (I know, big mistake on our part, but I was not involved).
    You're right. WC is a law, not a benefit, and certainly not the option of an employee whether or not to file a claim.
    Don't know that there will/won't be any repercussions on this or not... you'll have to let the claim play out.
    Now his Attorney wants WC to pay and our controller wants to know if he is still within his rights to do so or if he has exhausted his timeframe.
    Pay what ?
    Was there recovery/settlement in the 3rd party/MVA claim....?
    Was there any future medical paid in that settlement...you have the right to a credit for FMC.
    What is the AA/applicant atty wanting you to pay ?
    The claim doesn't not close until there is a C&R. Even with a Stipulation w/Request for Award, or Finding w/Award & Order by a WCAB judge, the medical would remain open based on necessity. Even though the MVA settled. WC medical closes with a lump sum payment to the applicant/IW.

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    • #3
      Thanks for the response CAIW.
      What they want paid as of now is the employee portion of his health insurance (Co-pays, deductibles, RX, etc).
      The claim has been filed with the IC and apparently this employee was doing the company a "favor" by not making it WC.

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      • #4
        What they want paid as of now is the employee portion of his health insurance (Co-pays, deductibles, RX, etc).
        Those should be costs/liability in the MVA action. Not to the ER/IC under the WC claim. The WC claim would be secondary to the MVA/3rd party. Generally, in this type of action, the WC carrier would administer the claim and associated benefit...ie medical. The ER/IC has the ability to control the costs/exposure for medical by use of MTUS/ACOEM treatment guides, and UR process. The treatment afforded the individual in a MVA or PI/personal injury claim is much higher than a comp claim.
        The WC carrier would only be liable for cost of treatment that are found medically necessary on an industrial basis. And, as all treatment in a comp claim is subject to prior authorization, a provider would be precluded from billing the IW, or their personal health care IC for treatment.
        The billing should have gone to the WC carrier, or the MVA carrier. The IW should not have had any out of pocket costs for this injury.
        The providers should have to place a lien on any recovery.
        IMHO... I would turn over all of this to the WC carrier...not pay through your controller.
        The claim has been filed with the IC and apparently this employee was doing the company a "favor" by not making it WC.
        LOL... that is often the excuse for not filing a claim. More often than not, the EE/IW is attempting to do themselves a favor as they are fully aware of the difficulties faced in a WC claim.
        But, as I have said before... WC is a law, not a benefit. The EE is required by law, as is the Dr/provider to file a claim with the ER, and the DIR/DWC if necessary.

        I wouldn't be out of the ordinary for the PI atty to wait for the 3rd party/MVA to resolve, and then come after the ER/WC carrier in seperate action. That may or may not keep things simple for the injured party. However the IW is not permitted to recovery from more than one party.
        This atty should be dealing with your carrier, not you as the employer.

        There are also rules in WC that address your/employer responsibility to bring this employee back to work once released at MMI.

        You might be interested in the info herehttp://www.dir.ca.gov/dwc/Employer.htm#1
        Topics on this page include:
        General information
        Medical treatment information
        Disability ratings
        Retraining and return to work information
        I think you are just beginning to see the potential involvement you face here. Good luck...fortunately you are covered by a WC policy and don't have to address these issues at the employer level...yet.

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