Bill Summary and Fact Sheet for An Act Relative to Workers Compensation

Bill Lead Sponsor: Representative Martin Walsh, 13^th Suffolk

Bill Number: HB1594

Bill Co-Sponsors:

General Law Affected:
Chapter 152, subsection 7A, section 13, 14, 30, 34, 35, 36, and 46A

Proposed Law:
SECTION ONE: Allows the administrative judge to consider the employees' pre-injury employment when considering predominant cause of disability.

Current Law:
Does not provide such language.

Proposed Law:
SECTION TWO: Sets the medical payment rate at 80% of the usual and customary charges for medical procedures.

Current Law:
Massachusetts has one of the lowest medical fee schedules in the country depriving injured workers of needed medical care.

Proposed Law:
SECTION THREE: Clarifies section 14 to provide penalties against an insurer who refuses to pay medical benefits without reasonable grounds.

Current Law:
Current law is unclear.

Proposed Law:
SECTION FOUR: Allows for an emergency conference before an administrative judge to determine if injured worker is entitled to medical treatment.

Current Law:
Current law is unclear on this matter.

Proposed Law:
SECTION 5: Limits utilization review to 5 of "the most common industrial injury or illnesses". This change would limit the utilization review process to the most frequent care given to injured workers.

Current Law:
Allows for utilization review of every medical procedure regardless of how trivial.

Proposed Law:
SECTION 6: Failure for an insurance company to comply with utilization review time guidelines results in treatment for the injured worker. This section will prevent insurance companies from delaying treatment for an injured worker by refusing to process the utilization review in a timely manner.

Current Law:
Current law requires a timely decision but has no mechanism to hold insurance companies to a timely decision.

Proposed Law:
SECTION 7: Restores the maximum benefit for temporary total disability benefit to 66 2/3 of the pre-injury wage up to the average weekly wage. The 1991 cut the maximum benefit for injured workers by 10%.

Current Law:
Maximum benefit is 60%.

Proposed Law:
SECTION 8: Adds certain, select additional circumstances under which an administrative judge may extend the number of weeks under section 35 (partial disability) benefits. These conditions are that the injured worker has returned to employment, with or without an Individual Written Rehabilitation Plan, has been found unsuitable for vocational rehabilitation, or has a permanent partial incapacity.

Current Law:
Does not allow judges to consider these circumstances.

Proposed Law:
SECTION 9: Allows for payment due to scarring on any part of an injured workers body.

Current Law:
Only allows for compensation for scaring to the neck, hands and face.

Proposed Law:
SECTION 10: In the case of a disputed workers' compensation claim the general health insurance carrier of the worker, if he/she has one, will cover the medical expenses of the injured worker until the workers comp. insurer is ordered to pay.

Current Law:
There is no requirement for a health insurance provider to cover these costs.

Rationale:
The Massachusetts AFL-CIO believes that the 1991 workers compensation law placed the burden of the workers' compensation system on the injured worker. This legislation in no way returns to the pre-1991 workers' compensation system but seeks to amend some of the weaknesses in the current system.

AN ACT RELATIVE TO WORKERS' COMPENSATION

SECTION 1. Subsection (7A) of Chapter 152 of the General Laws, as now appearing, is hereby amended by adding the following sentence after the fourth sentence as so appearing:

An administrative Judge shall take into consideration the employee's pre-injury employment in determining whether the injury remains a major but not necessarily predominant cause of disability and need for treatment.

SECTION 2.  Section 13 of M.G.L. c. 152 shall be amended as follows:  to the last sentence of the first paragraph of subsection (1), delete "." and add "provided, any rate set by the rate setting commission shall not be less than 80% of the usual and customary fee for any such health care service."

SECTION 3.  Section 14, Subsection 1 of Chapter 152, as currently appearing is amended by adding the following language after the word "proceedings" currently appearing therein: "including an employee's claim for medical benefits pursuant to sections 13 & 30 of this chapter."

SECTION 4.  Section 30 of M.G.L. c. 152 shall be further amended as follows:  following the last sentence in the first paragraph, add "In any case in which the provision of health care services is an issue and it is reasonably expected that a delay or denial may result in harm to the employee, the employee may request an emergency conference before an Administrative Judge concerning the sole issue of the provision of health care services.  Such request may be made following a referral to dispute resolution and upon information, including a medical record indicating that the health care services sought are reasonable, necessary and related to the industrial injury or illness at issue."

SECTION 5.  Section 30 of M.G.L. c. 152 shall be amended as follows:  delete the first sentence of the second paragraph and add "From time to time, the commissioner shall promulgate regulations regarding the provision of adequate and reasonable health care services; provided such regulations shall identify no more than five treatment guidelines representing five of the most common industrial injuries or illnesses for which utilization review shall be required."  Following the last sentence of the second paragraph, add "Otherwise the determination of whether any provision of health care services is reasonable or adequate shall be made by the Administrative Judge pursuant to sections 10A, 11 and 11A of the Act."

SECTION 6.  Section 30, of Chapter 152, as now appearing by inserting at the end thereof the following paragraph:

Any insurer who provides utilization review programs or contracts with agents to provide utilization review programs shall comply with any regulations promulgated regarding utilization review programs, including the time limitations set forth therein.  Failure to comply with said regulations shall result in a determination that the requested health care services shall be deemed approved.

SECTION 7.  Chapter 152, Section 34, of the General Laws, as now appearing, is hereby amended by striking out the first sentence of Section 34 as so appearing, and inserting in place thereof, the following sentence:

Section 34.  While the incapacity for work resulting from the injury is total, during each week of incapacity, the insurer shall pay the injured employee a weekly compensation equal to two-thirds of his average weekly wage before the injury, but not more than the maximum weekly compensation rate, unless the average weekly wage of the employee is less than the minimum weekly compensation rate, in which case said weekly compensation shall be equal to his average weekly wage.

SECTION 8. Chapter 152 of the General Laws, as now appearing is hereby amended by striking out Section 35 and inserting in place thereof the following section:

Section 35.  While the incapacity for work resulting from the injury is

partial, during each week of incapacity the insurer shall pay the injured employee a weekly compensation equal to sixty percent of the difference between his or her average weekly wage before the injury and the weekly wage he or she is capable of earning after the injury.  An insurer may reduce the amount paid to an employee under this section to the amount at which the employee's combined weekly earnings and benefits are equal to two times the average weekly wage in the commonwealth at the time of such reduction.

The total number of weeks of compensation due the employee under this section shall not exceed two hundred sixty; provided, however, that this number may be extended to five hundred twenty if an insurer agrees or an administrative judge finds that the employee has, as a result of a personal injury under this chapter, suffered a permanent loss of seventy-five percent or more of any bodily function or sense specified in paragraph (a), (b), (e), (f), (g), or (h) of subsection (1) of section thirty-six, developed a permanently life-threatening physical condition, or contracted a permanently disabling occupational disease which is of a physical nature and cause, or has returned to employment pursuant to an Individual Written Rehabilitation Plan pursuant to Section 30(H); or has been found unsuitable for vocational rehabilitation by the Office of Education and Vocational Rehabilitation; or has returned to employment at less than his preinjury average weekly wage; or has been found by an administrative judge to have a permanent partial incapacity.  Where applicable, losses under this section shall be determined in accordance with standards set forth in the American Medical Association Guides to the Evaluation of Permanent Impairments.  Where the insurer agrees or the administrative judge finds such permanent partial disability as is described in this paragraph, the total number of weeks the employee may receive benefits under this section shall not exceed five hundred twenty.  Where there has been no such agreement or finding the number of weeks the employee may receive benefits under these sections shall not exceed three hundred sixty-four.

SECTION 9.  Section 36 of Chapter 152 of the General Laws, as now appearing, is hereby amended by striking out subsection (k) and substituting in its place the following paragraph:

Subsection (k).  For bodily disfigurement, an amount which, according to the determination of the member or reviewing board, is a proper and equitable compensation, not to exceed fifteen thousand dollars; which sum shall be payable in addition to all other sums due under this section.

SECTION 10.  Section 46A of Chapter 152 as currently appearing is amended by adding the following paragraph:

Notwithstanding any general or special law to the contrary, in a case of person who has filed a claim for injury under the provisions of chapter 152 of the General Laws and such claim is disputed and not accepted by the workers' compensation insurer and such person has coverage under a policy of accident and sickness insurance, the health insurer shall provide reasonable and necessary medical benefits for such person until and unless an administrative judge of the division of industrial accidents issues an order directing the workers' compensation insurer to provide medical benefits pursuant to said chapter 152.