The Employer's Bill of Rights
| Publication year | 2023 |
| Author | JESSE A. BERNAL, ESQ. |
JESSE A. BERNAL, ESQ.
NORTHRIDGE, CALIFORNIA
Most practitioners understand the substitutionary aspect of insurance carriers "standing in the shoes of" the employer when an employer is insured against liability for workers' compensation claims. (Lab. Code §§3750-3759.) However, the responsibility the insurance carrier owes to the employer during the pendency of a claim for injury by an employee, specifically a claim in which the employer asserts that no compensation is payable to an employee, is not often discussed. Labor Code sections 3761 and 3762 are known as the "Employer's Bill of Rights" and delineate how to handle employee injury claims that an employer challenges as not payable.
In 1993, California law was changed to give employers, through California Labor Code sections 3761 and 3762, the ability to object to and deal directly with questionable claims that impact their cost of insurance. The provisions of this law apply to claims filed for dates of injuries on or after January 1, 1994.
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The following list summarizes the subsections of Labor Code section 3761:
- Section 3761(a): Requires the insurer to discuss with the employer all elements of the claim file that affect the employer's premium and to supply, at the employer's expense, copies of the documents that affect the premium.
- Section 3761(b): Prevents the insurance carrier from sharing privileged information (such as attorney-client privilege) with the employer.
- Section 3761(c): Prevents the insurance carrier and third party claim administrator from disclosing or causing to be disclosed to an employer any medical information about an employee except (1) medical information regarding the diagnosis of the mental and physical condition for which workers' compensation is claimed and the treatment provided for this condition; and (2) medical information regarding the injury for which workers' compensation is claimed that is necessary for the employer to modify the employee's work duties.
- Section 3761(d): Requires the insurer, when an employer properly provides notification and the Appeals Board finds that no compensation is due, to reimburse the employer for any premium paid due to the successfully challenged payments of the employer's experience modification.
The phrase "experience modification" as used in Labor Code sections 3761 and 3762 refers to a calculation insurance carriers use to price the cost of...
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