The Importance of Employer Involvement

By
David H. Parker

The standard policy of workers' compensation insurance in California requires an employer in the event of an injury to provide for immediate medical and other services required by the workers' compensation law. It also requires the insured to give the carrier the names and addresses of the injured person and witnesses as well as copies of all notices, demands, and legal papers related to the injury, claim, proceeding, or suit. The policy requires the insured to cooperate and assist the insurer in the investigation, settlement, or defense of the claim, proceeding, or suit. The insured is generally prohibited by the policy from doing anything that would interfere with the insurer's subrogation rights and from making payments, assuming obligations, or incurring expenses except at the insured's own cost. Calif. Law of Employee Injuries & Workers' Compensation Volume 1: Insurance Employee-Employer Relationship of Injury to Employment § 1-2.

But what rights do employers have in workers’ compensation? There are statutes commonly known as "the employer bill of rights" that 1) require an insurer to discuss all elements of the claim file that affect the employer’s premium, 2) allow an employer to get all medical information necessary to provide modified work duties and 3) allow an employer to get notice of any settlement 15 days before its approval by the Workers’ Compensation Appeals Board.

Labor Code §3761 specifically requires an employer to promptly notify an insurance carrier in writing of any facts of which it has actual knowledge which will tend to disprove any aspect of an employee’s claim. Once it does, the employer then gets mandatory notice of any proposed settlement. The employer can object to the settlement in writing and can then attend any hearing set on the approval of the settlement. The Workers’ Compensation Judge can still approve the settlement but if the employer is there to explain why he or she should not that makes a much better case for the employer who objects. If the Workers’ Compensation Appeals Board determines after employer objection that no compensation is payable, then the employer’s premium may be reimbursed under some circumstances.

Labor Code §3762 specifically gives an employer the right to information from the insurance carrier. This includes any information affecting the employer’s premium and also any medical information to provide modified work including, but not necessarily limited to, the diagnosis and treatment provided for the condition.

There is no way that an employer can stop the Workers’ Compensation Appeals Board from approving any settlement of a workers’ compensation case. An employer can often affect the settlement of a case by actively participating in the litigation by doing the following:

1. Notify the insurance carrier in writing of any actual knowledge of any facts which would disprove any aspect of the employee’s claim;
2. Work with the attorneys and/or investigators hired by the insurance company to assist with any legal defenses to the claim;
3. Make all appearances required of you including depositions and hearings;
4. Offer to send an employer representative to any deposition or hearing regarding your company’s workers’ compensation cases.

The worst thing an employer can do is ignore requests from the insurance company, its investigators or attorneys to provide witnesses, information or documents related to the case. Cases are won or lost only with the help of employers who provide documents and witnesses to assist with defense of the claims. If your company does not participate in the litigation then the insurance companies are often left with no choice but to settle even if they question the cases because trials cannot go forward without all witnesses and documents available.