FAQs: Revised Employee Notice Materials Effective October 8, 2010
As noted in CWCI Bulletin 10-20, our August 17 news release and our August 19 Executive Memo, notice regulations approved in August not only establish new requirements in CCR §9767.12 for a "complete written MPN employee notification" and an "MPN Implementation Notice," they also require revisions to:
• the DWC-1 Claim Form/Notice of Potential Eligibility (NOPE) per CCR §10139;
• the workers’ comp new hire pamphlets (CCR §9880); and
• the workers’ comp posting notices (CCR §§ 9881-9881.1).
As a result, the current versions of these materials only remain in effect until October 8, at which point employers and claims administrators should dispose of their current inventories and replace them with updated claim forms, new hire pamphlets and posting notices.
The Institute has taken delivery of the updated materials and began shipping them on September 3 to those who had placed pre-orders. This should provide adequate time to get them into the hands of employers by the October 8 effective date. CWCI has a large stock of the revised notices and claim forms, and will continue to ship them as orders are received, so anyone who needs immediate shipment of the updated materials should visit our website (www.cwci.org) or call CWCI at 510-251-9470.
In addition, we will be reviewing the new notice requirements along with other recent regulatory changes at a seminar next month. More information and an online registration form for that program is posted in the Seminar section of our website.
In the meantime, we have developed the attached list of FAQ’s to address many of the common questions we have received regarding the revised notice requirements.
FAQs
Q. Who is subject to the notice requirements?
A. Insured and self-insured employers are subject to the posting notice and pamphlet requirements.
Q. Should insurers provide the new hire pamphlets and posting notices to their policyholders?
A. California Labor Code §3550(f) and §3551(c) specify that insurers shall provide workers’ compensation new hire pamphlets and posting notices to their policyholders, with advice concerning the posting requirements and penalties for failure to post and supply the information to employees.
Q. What changes were made to these notices?
A. The amended notice regulations require more detailed information on MPNs, add information on changing physicians, eliminate references to vocational rehabilitation (which is no longer available), revise regulatory website references and make other changes intended to streamline the forms.
Q. In addition to the general workers’ compensation posting notice is there a separate posting notice required for employers with MPNs?
A. Yes. CCR §9767.12(d) notes "before MPN coverage is implemented, the complete written MPN employee notification shall also be posted in both English and Spanish in a conspicuous location frequented by employees during the hours of the workday and in close proximity to the workers’ compensation posting required under Section 9881." Anyone with an MPN should check with their claim administrator for further information.
Q. What are the penalties if an employer doesn’t provide required notices to employees as of the effective date?
A. Failure to provide current information to employees can lead to loss of medical control for any injury occurring during the time of that failure [LC §3550 (e)], civil penalties of up to $7,000 for each violation of the posting requirement [LC §6431] and the tolling of the statute of limitations for filing claims. An employer’s failure to keep the posting notice conspicuously posted also is considered a misdemeanor and prima facie evidence of noninsurance [LC §3550 (b)].
Q. Are CWCI’s new hire pamphlets and posting notices state approved?
A. Yes. CCR §9883 allows private entities to prepare and publish the workers’ compensation posting notice and new hire pamphlet if they meet the statutory and regulatory specifications and are approved in advance by the Administrative Director of the DWC. Keeping these notices up to date and accurate is challenging given ongoing statutory and regulatory changes, as well as judicial decisions which redefine or adjust the notice requirements, so for many years, insurers, employers and others have depended on CWCI to produce these materials and keep them current. The latest revisions to the notice regulations take effect Friday, October 8. This requires employers and claims organizations to act quickly, so as soon as the regulations were adopted in August, CWCI updated its new hire pamphlet (Facts About Workers’ Compensation) and its posting notice (If A Work Injury Occurs…) to comply with the changes and obtained the necessary DWC approvals.
Q. Do I need to provide Spanish versions of the posting notice and new hire pamphlets?
A. CCR §9880(b) and §9881(b) require that these notices shall be in available in both English and in Spanish where there are Spanish-speaking employees. CWCI has translated its revised new hire pamphlet and posting notice into Spanish as required, and the DWC-1 Claim Form/NOPE is a bilingual form.
Q. Why did CWCI produce the DWC-1/NOPE as a 5-part form when the DWC has a copy posted on its website?
A. The DWC-1/NOPE can be found on the DWC website (assuming the employer knows where to look), but the NOPE is two pages long, and four copies of the claim form will need to be made as the claim process unfolds and various sections of the form are completed (a temporary receipt copy for the worker when they first return the form, plus an employer copy, a claims administrator copy, and the final employee copy when all sections are completed and signed). Using a downloaded form requires a LOT of photocopying. Furthermore, LC §5401(b) says that insofar as practicable, the NOPE and claim form shall be a single document, so CWCI produced the claim form/NOPE as a 5-part form, with the NOPE as a tear-off coversheet attached to 4 copies of the DWC-1 printed on NCR paper — totally eliminating the need for photocopying.
Q. What are the requirements for employers and claims administrators in regard to the DWC-1/NOPE?
A. LC §5401 requires employers to provide a DWC-1/NOPE either personally or by 1st class mail within 1 working day of notice or knowledge of a work injury or illness. In addition, CCR §10140(b) requires that if the claims administrator obtains knowledge that the employer has not provided a claim form, the claims administrator shall provide one to the employee within 3 working days of its knowledge that the form was not provided; and CCR §10140 (c) requires that if the claims administrator cannot determine if the employer has provided a claim form to the employee, the claims administrator shall provide one to the employee within 30 days of the administrator’s date of knowledge of the claim.
Q. When do I use the "Facts For Injured Workers" pamphlet?
A. The 2002 reform bill (AB 749) eliminated the statutory requirement that a pamphlet be included with the first notice of payment or notice of delay on a workers’ compensation claim, but many claims administrators and employers continue to use the "Facts For Injured Workers" to inform claimants of their rights, benefits, obligations and to explain the workers’ compensation process early in the life of a claim. This pamphlet also can be used to meet the Ins. Code §1871.8 notice requirement on fraudulent receipt of temporary disability, and the LC §3553 notice requirement for victims of workplace crime. Following the adoption of the new notice regulations in August, CWCI updated the Facts for Injured Workers to reflect current TD rates and to add MPN information. This pamphlet also is available in English and Spanish.
Q. How can I get updated pamphlets, posting notices and DWC-1s before the October 8 effective date?
A. CWCI has all of these publications in stock and ready for shipment. (The Institute began shipping them on September 3 to those who pre-ordered). Anyone who still needs a supply can go to www.cwci.org or call CWCI at 510-251-9470.
Q. Where can I get more information?
A. The final regs are posted in the Regulatory section of CWCI’s website (www.cwci.org) and employers can check with their claims administrator for more information. In addition, CWCI will hold a 1-day seminar on the new notice requirements and other recent regulatory changes next month. Information on the program is also on the CWCI website.