W o r k e r s C o m p e n s a t i o n I n s u r a n c e R a t i n g B u r e a u o f C a l i f o r n i a Disputing a WCIRB or Insurer Action Presented by the Workers Compensation Insurance Rating Bureau of California Robin McGuire Policyholder Ombudsman IIABCal Webinar September 16, 2015 Notice The information provided in this webinar was developed by the Workers Compensation Insurance Rating Bureau of California (WCIRB) solely for the purpose of discussion during this webinar. The WCIRB shall not be liable for any damages, of any kind, whether direct, indirect, incidental, punitive or consequential, arising from the use, inability to use, or reliance upon information provided in this webinar. The Independent Insurance Agents and Brokers of California (IIABCal) is acting only as a host for this webinar and the WCIRB is not in any way affiliated with IIABCal. 2015 Workers Compensation Insurance Rating Bureau of California. All rights reserved. No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including, without limitation, photocopying and recording, or by any information storage or retrieval system without the prior written permission of the Workers Compensation Insurance Rating Bureau of California (WCIRB), unless such copying is expressly permitted by federal copyright law. No copyright is claimed in the text of statutes and regulations quoted within this work. Workers Compensation Insurance Rating Bureau of California, WCIRB, WCIRB California, WCIRB Online, X-Mod Direct, escad and the WCIRB California logo (WCIRB Marks) are registered trademarks or service marks of the WCIRB. WCIRB Marks may not be displayed or used in any manner without the WCIRB s prior written permission. Any permitted copying of this work must maintain any and all trademarks and/or service marks on all copies. To seek permission to use any of the WCIRB Marks or any copyrighted material, please contact the Workers Compensation Insurance Rating Bureau of California, at customerservice@wcirb.com. 1
Purpose To provide an overview of the workers compensation dispute resolution process, including: Disputing a WCIRB Action or Inaction Disputing an Insurer s Action or Inaction Appealing to the California Department of Insurance Getting help and other resources Workers Comp Process A policyholder has the right to dispute an action or inaction of their insurer or the WCIRB If unable to resolve the issue on an informal basis there is a formal dispute process The process requires that disputes are initially reviewed by the insurer or the WCIRB If the dispute is not settled after following this process, the policyholder may appeal to the Insurance Commissioner The process is described in California Code of Regulations, Title 10, Article 9.7, beginning at section 2509.40 The WCIRB s or Insurer s action or inaction may be affirmed, modified or reversed 2
The Workers Comp Process WCIRB Process Employer CDI Appeal Insurer Process WCIRB Process Employer submits written Inquiry to WCIRB If requested, Employer has 60 days to provide WCIRB with additional information WCIRB sends Employer response within 90 days of receipt of Inquiry Employer may submit Complaint and Request for Action to WCIRB within 60 days of Inquiry response If Request for Reconsideration is submitted, WCIRB sends response within 30 days; Employer has 30 days to file an appeal Employer may submit Request for Reconsideration to WCIRB or appeal to the CDI within 30 days from CRFA response WCIRB sends Employer response to Complaint and Request for Action within 60 days after acknowledgment WCIRB sends Employer acknowledgement within 30 days When appeal is filed with California Department of Insurance, the WCIRB responds to CDI appeal notice within 19 days After the hearing, administrative law judge submits decision to Insurance Commissioner within 60 days The Commissioner adopts, modifies or rejects ALJ s decision within 60 days Employer may file a Request for Reconsideration of the Commissioner s decision 3
Employer with the WCIRB Timeline for Submitting an Inquiry The first step in the WCIRB s dispute process is the Inquiry The Inquiry must be received by the WCIRB Within 12 months after the expiration of the policy Or within 6 months of the issuance of an experience modification, whichever is later The WCIRB will respond to the Inquiry 60 days to supply additional information (if requested) 90 days for WCIRB to issue a response Employer with the WCIRB Types of Inquiries Accepted The WCIRB can only accept Inquiries regarding issues within its jurisdiction. For example: Classification assignments on a WCIRB Inspection Report Experience modification calculations Ownership of entities for experience rating purposes The WCIRB cannot accept Inquiries regarding issues outside its jurisdiction, such as disputes involving: Premium Employment status (worker vs. independent contractor) Claims handling 4
Employer with the WCIRB How to Submit an Inquiry The Inquiry must be a letter written by the employer Can be submitted in hard copy or as an attachment to an email to the WCIRB There is no specific format, but the Inquiry should include the following information: Name of employer and insurer Policy period in question Policy number(s) Detailed explanation WCIRB, 1221 Broadway, Suite 900, Oakland, CA 94612 Attention: Customer Service Employer with the WCIRB Submitting a Complaint and Request for Action The employer must submit the Complaint and Request for Action (Complaint) within 60 days of the Inquiry response 30 days for WCIRB to respond or acknowledge 60 days after acknowledgement for WCIRB to respond Once the WCIRB has issued a response 30 days from service of Complaint response for employer to submit a Request for Reconsideration to the WCIRB Or The employer may appeal to the California Department of Insurance 5
Employer with the WCIRB Submitting a Request for Reconsideration Following the WCIRB s response to a Complaint or a Request for Reconsideration, the employer may: Submit a Request for Reconsideration* to the WCIRB within 30 days of the Complaint response If Request for Reconsideration is submitted, WCIRB sends response within 30 days; Employer has 30 days to file an appeal Employer may submit Request for Reconsideration to WCIRB or appeal to the CDI within 30 days from CRFA response *Request for Reconsideration should only be submitted if there is new information or to correct information in the Complaint and Request for Action Or Appeal to the California Department of Insurance within 30 days from the date of the Complaint response WCIRB Process Employer submits written Inquiry to WCIRB If requested, Employer has 60 days to provide WCIRB with additional information WCIRB sends Employer response within 90 days of receipt of Inquiry Employer may submit Complaint and Request for Action to WCIRB within 60 days of Inquiry response If Request for Reconsideration is submitted, WCIRB sends response within 30 days; Employer has 30 days to file an appeal Employer may submit Request for Reconsideration to WCIRB or appeal to the CDI within 30 days from CRFA response WCIRB sends Employer response to Complaint and Request for Action within 60 days after acknowledgment WCIRB sends Employer acknowledgement within 30 days When appeal is filed with California Department of Insurance, the WCIRB responds to CDI appeal notice within 19 days After the hearing, administrative law judge submits decision to Insurance Commissioner within 60 days The Commissioner adopts, modifies or rejects ALJ s decision within 60 days Employer may file a Request for Reconsideration of the Commissioner s decision 6
The Workers Comp Process WCIRB Process Employer CDI Appeal Insurer Process Employer with the Insurer Insurer Process Overview The first step in the Insurer s Process is the Complaint and Request for Action Does not require an Inquiry to be filed Insurer s Insurance Code and Title 10 (Article 9.7 Section 2509) 7
Employer with the Insurer Submitting a Complaint and Request for Action Complaints submitted to insurers can address issues such as: Classification(s) assigned to employees Application of an experience modification Employment status Premium disputes Claims handling practices Deadlines for filing a Complaint and Request for Action with an insurer 30 days for the insurer to respond or acknowledge 60 days after acknowledgement for the insurer to respond Policyholder Notice Your Right to Rating and Dividend Information 8
The Workers Comp Process WCIRB Process Employer CDI Appeal Insurer Process Appeals to the California Department of Insurance Acknowledgment of Appeal Appeals to the Insurance Commissioner are filed with the California Department of Insurance (CDI) Employers may be represented by an attorney but it is not required Must file Proof of Service on all parties and WCIRB The Chief Administrative Law Judge will issue an Order: Acknowledging receipt of the Appeal Providing instructions concerning the information that must be submitted to the California Department of Insurance Advising on required service on all other parties to the appeal 9
Appeals to the California Department of Insurance Types of CDI Appeals The Commissioner may decide whether an Insurer correctly Assigned classifications to employees Reported loss data to the WCIRB Applied an experience modification Applied a surcharge or other rating plan factor The Commissioner may decide whether the WCIRB correctly Assigned classifications on the Inspection Report Calculated an experience modification The Commissioner will not decide whether An employee is exempt from coverage A worker is an employee or independent contractor An Insurer properly adjusted an employee s claim The premium bill is correctly tabulated Appeals to the California Department of Insurance Substance of an Appeal An Appeal must include: Contact information for employer filing appeal or employer s representative Copies of correspondence between the employer and insurer and/or the WCIRB regarding the issue(s) on appeal A statement why the employer believes the insurer s or the WCIRB s decision, action or inaction is wrong Any other documents which support employer s position A statement as to whether the employer has previously filed a complaint with the Department of Insurance regarding the same issue 10
Appeals to the California Department of Insurance Role of the WCIRB in Appeal The WCIRB is a party to the Appeal if the employer is disputing a decision of the WCIRB The WCIRB may choose or be ordered by the CDI to participate in an Appeal disputing an insurer s decision The WCIRB has an interest in appeals involving: Uniform Statistical Reporting Plan Experience Rating Plan Miscellaneous Regulations for the Recording and Reporting of Data Appeals to the California Department of Insurance Responding to an Appeal The Chief Administrative Law Judge files an Appeal Inception Notice once all information has been provided. Provides a brief statement of the issue on appeal Assigns the matter to an Administrative Law Judge for hearing The WCIRB and/or insurer have 19 days from the date of service of the Inception Notice to respond When appeal is filed with California Department of Insurance, the WCIRB responds to CDI appeal notice within 19 days After the hearing, administrative law judge submits decision to Insurance Commissioner within 60 days The Commissioner adopts, modifies or rejects ALJ s decision within 60 days Employer may file a Request for Reconsideration of the Commissioner s decision 11
Appeals to the California Department of Insurance Conference Call and Hearing The parties will participate in a conference call with the judge to discuss the issue(s) on appeal, prehearing discovery and setting a hearing date Employers may be represented by an attorney but it is not required If the insurer or WCIRB files a summary denial and it is granted by the judge, the appeal process ends The summary denial can be filed prior to the conference call Appeals to the California Department of Insurance Conference Call and Hearing The judge may ask the parties to file a prehearing brief setting forth their arguments Prior to the hearing, all parties must file Witness List Exhibit List At the hearing, testimony is taken from all parties The judge may also ask for post hearing briefs 12
Appeals to the California Department of Insurance Decision After the hearing 60 days for the judge to submit a written decision to the Insurance Commissioner 60 days for the Commissioner to adopt, modify or reject A party may file a Request for Reconsideration of the Insurance Commissioner s decision Requirements for filing a Request for Reconsideration are set forth in Title 10, Article 9.7 Section 2509.72 When appeal is filed with California Department of Insurance, the WCIRB responds to CDI appeal notice within 19 days After the hearing, administrative law judge submits decision to Insurance Commissioner within 60 days The Commissioner adopts, modifies or rejects ALJ s decision within 60 days Employer may file a Request for Reconsideration of the Commissioner s decision Which Process? Typical WCIRB s Classification(s) assigned on WCIRB Inspection Report Experience modification calculation Ownership of entities for experience rating purposes Typical Insurer s Classification(s) applied to a policy Application of an experience modification Employment status Premium disputes Claims handling practices 13
Getting Help and Other Resources Policyholder Ombudsman The Policyholder Ombudsman is a resource for California employers Assists employers in understanding workers comp information related to: Loss experience Classification assignments Experience modifications May advise employers on any dispute with the WCIRB, the Insurer, or on an appeal to the CDI Works with employers to explain rules and decisions as well as the rights and options of all parties 14
Policyholder Ombudsman Contact Information Robin McGuire Policyholder Ombudsman Tel: 415.778.7159 Fax: 415.371.5288 E-mail: ombudsman@wcirb.com WCIRB California 1221 Broadway, Suite 900 Oakland, CA 94612 Attn: Policyholder Ombudsman www.wcirb.com 15
Agents and Brokers content on wcirb.com www.insurance.ca.gov www.wcirb.com 16