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Changes in workers' compensation laws
during 2001; workers' compensation coverage was extended to
certain law enforcement and public safety officers, but excluded
from some sports officials, inmates, musicians, and horse
trainers - Workers' Compensation, 2001 - United States -
Statistical Data Included
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The issue of coverage under workers' compensation laws received
a great deal of attention in 2001. For example, extending
presumptions of coverage for certain diseases suffered by law
enforcement officers or firefighters, or both, occurred in
Arizona, California, Florida, Maryland, and Virginia. On the
other hand, sports officials, State prisoners and county inmates
in Florida, musicians in Louisiana, horse trainers in Montana,
and soccer referees in Oregon were excluded from coverage.
In gearing up for the Winter Olympic games, Utah is providing
workers' compensation coverage for law enforcement/ public
safety volunteers and paid officers who provide public safety
services.
In Idaho, infectious hepatitis and tuberculosis are now
considered "occupational diseases" in any occupation involving
exposure to human blood or body fluids.
In Nevada, if a person contracts a contagious disease during the
course and scope of his employment that results in a temporary
or permanent disability or death, the disease is deemed to be an
occupational disease and compensable if certain conditions are
met.
In Georgia, the weekly maximum benefit for temporary total
disability increased to $400 and the minimum to $40 (up from
$375 and $37.50, respectively). Also in Georgia, the weekly
maximum for temporary partial disability was increased to $268
from $250. In Louisiana, the amount of benefits paid to each
surviving parent in a no-dependency death claim was increased to
$75,000 from $20,000. In Wyoming, the amount of permanent total
disability and death benefits awarded to dependent children was
increased to $150 from $100 per month. Future payments are to be
adjusted annually for inflation.
Maximum burial allowances increased to $3,500 in North Carolina.
The following is a State-by-State summary of significant changes
to workers' compensation laws.
Arizona
Any party to a claim for partial disability and permanent total
disability now has 90 days (previously 60 days) from the time
the Commission mails a copy of its determination to all parties
to request a hearing.
Any disease, infirmity, or impairment of a firefighter's health
that is caused by brain, bladder, rectal or colon cancer,
lymphoma, leukemia, or aden carcinoma or mesothelioma of the
respiratory tract that results in disability or death is
presumed to be an occupational disease and is deemed to arise
out of the employment if certain requirements are met. Among
them are that the firefighter must have passed a physical
examination before employment and that the examination did not
indicate evidence of cancer; the firefighter was assigned to
hazardous duty for at least 5 years; and that the firefighter
was exposed to a known carcinogen as defined by the
International Agency for Research on Cancer, informed the
department of this exposure, and the carcinogen is reasonably
related to the cancer.
Arkansas
Personnel assigned to the Workers' Compensation Fraud
Investigation Unit, upon meeting the qualifications established
by the Arkansas Commission on Law Enforcement Standards and
Training, shall have the powers of specialized law enforcement
officers of the State for the purpose of conducting
investigations.
The burden of proof connecting employment with an occupational
disease is now established by a "preponderance" of evidence
rather than "clear and convincing" evidence.
A hospital, physician, or healthcare provider is prohibited from
billing or attempting to collect any fee for services rendered
to an employee due to a workers' compensation injury when a
claim has been filed and notification of filed claim has been
provided. Such provider is also prohibited from reporting to any
credit reporting agency the employee's failure to make the
payment. When an injury has been found to be noncompensable, any
unpaid portion of a bill may then be pursued.
The schedule for attorneys' fees was changed from the sliding
scale, based on the amount of compensation awarded, to a set 25
percent of compensation for indemnity benefits payable to the
injured employee or dependents of a deceased employee.
California
The presumption that a hernia, heart trouble, or pneumonia arose
out of and in the course of employment was extended to members
of the California Highway Patrol. For law enforcement officers
and fire department employees, the definition of "injury" was
extended to include a blood-borne infectious disease.
For active lifeguards employed for more than 3 consecutive
months in a calendar year by certain local agencies and the
Department of Parks and Recreation, the term "injury" now
includes skin cancer that develops or manifests itself during
the period of the lifeguard's employment.
A healthcare provider or licensed healthcare facility can now
contract with a contracting agent, employer, or insurance
carrier for reimbursement rates that are different from the
official medical fee schedule.
Whenever an employer or insurer employs an individual or
contracts with an entity to conduct a review of a billing
submitted by a physician or medical provider, the employer or
insurer must make available to that individual or entity all
documentation submitted together with that billing by the
physician or medical provider.
Medical treatment for a work-related injury may be provided by a
State-licensed physician assistant or nurse practitioner. This
includes the authority to authorize the patient to receive time
off from work for a period not to exceed 3 calendar days if that
authority is included in a standardized procedure or protocol
approved by the supervising physician.
Connecticut
The mileage reimbursement rate for the use of a privately owned
vehicle necessary for an employee to receive medical attention
will now be at the rate equal to the Federal mileage
reimbursement rate.
The State's Attorney General is now authorized to bring action
in Superior Court against any employer, carrier, or risk
management agency that fails to comply with the Second Injury
Fund reporting requirements.
An employer- or insurer-sponsored medical plan must contain a
list of all pharmacies that will provide services under the
plan.
The time limit for appealing a commissioner's decision was
extended to 20 days, up from 10.
Delaware
The time for either party to appeal a notice of award was
increased to 30 days from 20.
The "cap" on attorneys' fees that can be awarded by the
Industrial Accident Board was changed from $2,250 to a sliding
scale based upon the average weekly wage as announced annually
by the State's Secretary of Labor. This presently places the
"cap" at $6,744.
An employer or its carrier is to notify the Department and
claimant, in writing, of its acceptance or denial of an
employee's claim within 15 days from the date of its receipt of
knowledge that the employee sustained a work-related injury.
Also, all medical expenses are to be paid by the employer or
carrier within 30 days of receipt unless notification is
provided that the expenses are being contested or further
verification is required.
Florida
The definition of "employee" excludes a person who performs
services as a sports official for interscholastic sports events,
or amateur sports events sponsored by nonprofit organizations.
The term "employment" excludes services performed by state
prisoners or county inmates, except those performing services
for private employers.
For a public employer to be eligible for special premium rates,
they must have a workplace safety program. If authorized by the
employee, compensation payments may be deposited directly into
the employee's account at a financial institution. Upon written
request, the employee is entitled to one change of physician
during the course of treatment for any one accident.
If lost wages from concurrent employment are used in calculating
the average weekly wage, the employee is responsible for
providing information concerning the loss of earnings from the
concurrent employment.
A claimant, represented by counsel, may waive all rights to
benefits by entering into a settlement agreement releasing the
employer and carrier from liability in exchange for a lump-sum
payment to the claimant. In such settlements, only the
attorney's fee is subject to approval by the judge of
compensation claims. The exemption of workers' compensation
claims from creditors does not extend to claims based on an
award of child support or alimony.
An injury to a law enforcement officer while on duty or while
going to or coming from work in an official law enforcement
vehicle shall be presumed to be an injury arising out of and in
the course of employment unless the injury occurred during a
distinct deviation for a non-essential personal errand.
Georgia
The weekly maximum for temporary total disability benefits
increased to $400 from $375, and the minimum to $40 from $37.50.
The weekly maximum for temporary partial disability was
increased to $268 from $250.
Upon determining that proceedings were brought, prosecuted, or
defended without reasonable grounds, the administrative law
judge or the board may, in addition to reasonable attorney's
fees, award to the adverse party reasonable litigation expenses
against the offending party.
The list of physicians the employer must maintain who are
reasonably accessible to employees increased to 6 from 4. All
reasonable charges for medical, surgical, hospital, and pharmacy
goods and services are payable by the employer or its workers'
compensation insurer within 30 days from the date the employer
or insurer receives the charges and reports.
Idaho
Infectious hepatitis and tuberculosis are now considered
"occupational diseases" in any occupation involving exposure to
human blood or body fluids.
Iowa
A limited liability partner may elect to be covered by the
workers' compensation law.
Kansas
"Usual charge" means the amount most commonly charged by
healthcare providers for the same or similar services while
"customary charge" means the usual rates or range of fees
charged by healthcare providers in a given locale or area.
The average gross weekly wage of a person serving on a volunteer
basis as a duly authorized law enforcement officer, ambulance
attendant and driver, or firefighter, who receives no wages for
such services, or who receives wages that are substantially less
than the usual wages paid for such services, is now computed on
the basis of the dollar amount closest to but not exceeding
112.5 percent of the State average weekly wage. The average
weekly wage of any other volunteer who receives no wages for
such services, or who receives wages that are substantially less
than the usual wages paid for such services by comparable
employers to employees who are not volunteers, are to be
computed on the basis of the usual wages paid by the employer
for such services to employees who are not volunteers.
Louisiana
The amount of benefits to be paid to each surviving parent in a
no-dependency death claim was increased to $75,000 from $20,000.
If upon release by a physician to return to work, the employee
fails a drug test, benefits, with the exception of reasonable
and necessary medical treatment, may be terminated subject to
the terms and conditions established in the employer's
promulgated drug testing policy and program.
In calculating an employee's wage, any amount withheld by the
employer to fund any health insurance benefit provided by the
employer, and which was elected by the employee in lieu of
taxable earnings, is to be included.
Constitutional challenges to the Workers' Compensation Act are
now recognized if they meet established filing procedures. An
award of temporary total disability benefits may be modified by
the filing of a motion for modification with the same court that
awarded the benefits and under the same caption and docket
number without the necessity of filing a new dispute and
appearing at a mediation conference.
The time limit for filing a claim for disability arising from an
occupational disease was increased to 1 year from 6 months.
Musicians and performers who are rendering services pursuant to
a performance contract are exempt from workers' compensation
coverage.
For purposes of determining an employee's average weekly wage in
an occupational disease claim, the date of the "accident" shall
be the date of the employee's last employment with the employer
from whom benefits are being claimed or the date of last
injurious exposure to employment conditions, whichever date
occurs later.
Maine
The amount of medical insurance coverage required for an
agricultural employer to be exempt from workers' compensation
coverage was increased to $5,000 from $1,000.
The Supplemental Benefits Fund was created to provide
reimbursement for the payment of workers' compensation benefits
in excess of 260 weeks. Previously, these reimbursements were
made from the Employment Rehabilitation Fund.
Maryland
A decision rendered by the Workers' Compensation Commission is
to be sent to each party's attorney of record or, if the party
is unrepresented, to the party.
For purposes of workers' compensation coverage, the definition
of "public safety employee" was expanded to include a Prince
George's County deputy sheriff.
If an award of permanent partial disability compensation is
reversed or modified by a court of appeal, the payment of any
new compensation awarded shall be subject to a credit for
compensation previously awarded and paid.
Each employer that self-insures must establish a toll-free
telephone number through which an employee or claimant, or a
representative of an employee or claimant, may make direct
telephone inquiries during regular business hours.
Michigan
In response to a request that pertains to a specific employer
and includes the employer's address and the date of injury of
the claim for which information is requested, the bureau may
disclose the name and address of the insurer that, according to
the records of the bureau, provided coverage on the date of
injury, but shall not disclose the effective date or expiration
date of the policy.
Montana
The Workers' Compensation Act does not apply to employment of a
trainer, assistant trainer, exercise person, or pony person who
is performing services under a license issued by the board of
horseracing while on the grounds of a licensed race meet.
The waiting period for receiving temporary total disability
benefits was reduced from 6 to 5 days, and for shift work from
48 to 40 hours.
A worker requalifies for temporary total disability benefits if
a modified or alternative position is no longer available to the
worker for any reason, except for the worker's incarceration,
resignation, or termination for disciplinary reasons caused by a
violation of the employer's policies that provide for
termination of employment.
If an employee is intentionally injured by an intentional and
deliberate act of the employee's employer or by the intentional
and deliberate act of a fellow employee while performing the
duties of employment, the employee or, in case of death, the
employee's heirs have a cause of action for damages against the
person whose intentional and deliberate act caused the
intentional injury.
Nevada
An officer or manager of a quasi-public or private corporation,
or a limited liability company who owns the entity, operates it
exclusively from his primary residence, and receives pay for
services performed, may elect to reject coverage for himself by
filing written notice with the insurer.
If a person employed in the State contracts a contagious disease
during the course and scope of his employment that results in a
temporary or permanent disability or death, the disease is
deemed to be an occupational disease and compensable if certain
conditions are met. "Contagious disease" means hepatitis A, B,
and C, tuberculosis, the human immunodeficiency virus or
acquired immune deficiency syndrome.
If a treating physician or chiropractor refers an injured
employee to a specialist for treatment, the treating physician
or chiropractor must provide to the injured employee a list that
includes the name of each physician or chiropractor with that
specialization who is available pursuant to the terms of the
contract with the organization for managed care or with
providers of healthcare services. The injured employee may
select someone from that list.
New Hampshire
Scheduled permanent impairment awards can now be given for an
injury to the brain or from scarring, disfigurement, or other
skin impairment resulting from a bum or bums.
A mental injury is not compensable under the Workers'
Compensation Act if such mental injury results from any
disciplinary action, work evaluation, job transfer, layoff,
demotion, termination or similar action, taken in good faith by
the employer.
Any State employee injured in the line of duty by a hostile or
overt act that causes hospitalization or renders the employee
temporarily unable to perform the duties of his or her position
shall remain on active payroll and not be charged annual or sick
leave for the time lost due to the injury.
When an insurance carrier, self-insurer, or payor, acting on
behalf of such carrier or self-insurer, disputes the causal
relationship of a medical bill to the claimant's injury, and
denies payment of such bill, and is after a hearing ordered to
pay or reimburse the bill by the Commissioner, the employee
shall be entitled to reimbursement of reasonable counsel fees
and costs as approved by the Commissioner.
North Carolina
Burial expenses were increased to $3,500 from $2,000.
An insurer that covers an employee under a health benefit plan,
a disability income plan, or any other health insurance plan is
not a real party in interest and shall not participate in any
proceeding or settlement agreement to determine compensability
of a claim. The insurer that covers an employee under a health
benefit plan or any other health insurance plan may seek
reimbursement from the employee, employer, or carrier that is
liable or responsible for the specific medical charge according
to a final adjudication of the claim or an order of the
Commission approving a settlement.
North Dakota
The bureau may now pay for preventative treatment for
significant exposures documented by emergency medical service
providers or employees of licensed facilities, and for exposure
to rabies occurring in the course of employment.
An employer may not require an employee to use sick or annual
leave, or other employer-paid time off work, before applying for
or receiving workers' compensation benefits. However, an
employer may allow an employee to use sick or annual leave to
make up the difference between the employee's wage-loss benefits
and the employee's regular pay.
For purposes of workers' compensation, a "preferred worker"
means a worker who has incurred a compensable injury that
resulted in a disability that poses a substantial obstacle to
employment. The bureau may provide assistance as deemed
appropriate to employers who employ a preferred worker, and
employers who apply for and are approved as a preferred worker
employer may not be assessed premiums on a preferred worker's
salary for 3 years from the date of hiring. Also, the bureau may
not charge claims costs incurred as a result of an injury
sustained by a preferred worker against the account of the
preferred worker's employer during the first 3 years after the
worker is hired.
The award for the amputation of more than one finger on one hand
may not exceed an award for the amputation of a hand. The award
for the amputation of more than one toe of one foot may not
exceed an award for the amputation of a foot.
An employer may not employ any person, or receive the fruits of
the labor of any person, in a hazardous employment, without
first applying for workers' compensation insurance coverage by
notifying the bureau of the intended employment, the nature of
the intended employment, and the estimated payroll expenditure
for the coming 12-month period. An employer who willfully
misrepresents the amount of payroll upon which a premium is
based, or who willfully fails to secure coverage for employees,
is liable to the State in the amount of $2,000 plus three times
the difference between the premium paid and the amount of
premium the employer should have paid.
Oklahoma
The name of State Insurance Fund was changed to "CompSource
Oklahoma."
Oregon
A person serving as a referee or assistant referee in a youth or
adult recreational soccer match whose services are retained on a
match-by-match basis is exempt from workers' compensation
coverage. Firefighters and police employees of any city having a
population of more than 200,000 that provides a disability and
retirement system by law are also exempt from coverage.
"Preexisting condition" means, for all occupational disease
claims, any injury, disease, congenital abnormality, personality
disorder or similar condition that contributes to disability or
need for treatment and that precedes the onset of the claimed
occupational disease.
For purposes of determining entitlement to temporary disability
or permanent total disability benefits, "worker" does not
include a person who has withdrawn from the workforce during the
period for which such benefits are sought.
The maximum for temporary total disability was increased to 133
percent of the State's average weekly wage, up from 100 percent.
For workers employed in more than one job at the time of injury,
all the worker's earnings will be considered in determining the
temporary total disability compensation rate. For the permanent
loss of use or function of an injured member of the body,
benefits for each degree of disability was increased to $511.29
from $454. Beginning January 1, 2002, through December 31, 2004,
the worker will receive $559 for each degree of disability.
An offer of modified employment may be refused by a worker,
without the termination of temporary total benefits, if the
offer does not meet an established set of requirements.
An injured worker may pursue a civil negligence action for a
work-related injury that has been determined to be not
compensable because the worker has failed to establish that a
work-related incident was the major contributing cause of the
worker's injury--only after an order determining that the claim
is not compensable has become final. Such action must occur
within the later of (1) 2 years from the date of injury or (2)
180 days from the date the order affirming that the claim is not
compensable on such grounds becomes final.
Rhode Island
Any person who is appointed a corporate officer between January
1, 1999 and December 31, 2001, and was not previously an
employee of the corporation, will not be considered an employee
unless a notice is filed to elect coverage by the workers'
compensation provisions.
The penalty for an employer failing to post a summary of the
workers' compensation act provisions was increased to $250 from
$100. The payment of medical services required by the employer
shall not include hearing aids or other amplification devices.
An injured employee who accepts suitable alternative employment
will receive a weekly compensation equal to 66 2/3 percent of
the difference between the employee's average weekly wage,
earnings or salary before the injury and his/ her weekly wages,
earnings, or salary from the suitable alternative employment.
For total occupational deafness in one ear, 75 weeks of
compensation will be paid; for total occupational deafness of
both ears, 244 weeks of compensation will be paid (previously 17
and 100 weeks, respectively).
South Dakota
No local prisoner, State inmate, or Federal inmate providing
services to the State or any of its political subdivisions may
be considered a volunteer worker for workers' compensation
purposes.
Tennessee
In cases where an injury occurs as the result of gradual or
cumulative events or trauma, the injured employee, or
representative, needs to provide notice to the employer of the
injury within 30 days after the employee knows or reasonably
should know that he/she has suffered a work-related injury
resulting in permanent physical impairment, or is rendered
unable to continue to perform his/her normal work activities as
the result of the work-related injury, and the employee knows or
reasonably should know that the injury was caused by
work-related activities.
Before any proposed settlement is considered final in cases
involving benefits from the second injury fund, it must have the
written approval of the Commissioner of Labor and Workforce
Development.
If an injury or illness requires the treatment of a physician or
surgeon who practices orthopedic or neuroscience medicine, the
employer may appoint a panel of physicians or surgeons
practicing orthopedic or neuroscience medicine for the employee
to choose. The injured employee is entitled to have a second
opinion on the issue of surgery, impairment, and a diagnosis
from that same panel of physicians.
The representative of the employee, employer, or employer's
insurer attending a benefit review conference must have
authority to settle any disputes. Failure to provide such a
person at the conference, without good cause, by the employer or
insurer, shall subject them to a penalty of not less than $50
nor more than $5,000.
Texas
The requirements for being on the Commission's approved list of
doctors licensed in the State who are approved to provide
healthcare services were significantly revised. Regional Health
Care Delivery Networks may now be established by the Commission,
as fee-for-service networks designed to improve the quality and
reduce the cost of healthcare. An insurance carrier or a
self-insurer, certified to provide workers' compensation
coverage in the State, may elect to participate or not
participate, by contract, in a regional network. A public
employer, with certain exceptions, are required to participate
in a regional network.
An employer shall notify an employee, treating doctor, and
insurance carrier of the existence or absence of opportunities
for modified duty or a modified duty return-to-work program
available through the employer. An insurance carrier shall, with
the agreement of a participating employer, provide the employer
with return-to-work coordination services as necessary to
facilitate an employee's return to employment.
The Texas Workers' Compensation Insurance Fund was changed to a
domestic mutual insurance company and now operates as the Texas
Mutual Insurance Company.
Utah
Law enforcement and public safety volunteers and paid officers
who provide public safety services during the Olympic Winter
Games of 2002 and the Paralympic Winter Games of 2002 are
covered under workers' compensation. For purposes of computing
compensation, the average weekly wage rate of a public safety
volunteer is considered to be $400.
Virginia
The presumption as to disability or death from respiratory
disease, hypertension or heart disease was extended to special
agents of the Department of Alcoholic Beverage Control.
Premium discounts insurers provide to employers for drug-free
workplace programs are no longer limited to 4 years.
Wyoming
For purposes of workers' compensation coverage, the definition
of "State employee" was clarified.
The amount of permanent total disability and death benefits
awarded to dependent children was increased to $150 per month,
up from $100, for payments made after July 1, 2001. In the
future such payments are to be adjusted annually for inflation.
Glenn Whittington is Chief, Branch of Planning Policy and
Standards, Office of Workers' Compensation Programs, Employment
Standards Administration, U.S. Department of Labor. e-mail: gaw@fenix2.dol-esa.gov
COPYRIGHT 2002 U.S. Bureau of Labor Statistics
COPYRIGHT 2004 Gale Group
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