New year, new changes

    First and foremost, Happy New Year to you all. I know it is too late into January to be saying that, but this is my first blog of the year. We are now past the holiday (and hopefully flu) season and everyone is back on the day-to-day grind. Since my last blog, things have been hectic in my world. We had our second (and hopefully last) bout with the flu, a Teenage Mutant Ninja Turtle birthday party, our first (failed) attempt at a movie and a trip to the Dominican Republic (adults only!). Below are some of the pictures from our last month.

    While I was out on vacation, the new changes to the rules of the MWCC went into effect as of January 18, 2018. In fact, I have already presented several presentations to clients in order to discuss how these changes will impact employers and carriers, and have other seminars currently scheduled. I am happy to present a more thorough analysis of the changes to any of you in person, so let me know if that is needed.

    However, for purposes of the blog, I have broken down the parts I feel are most pertinent to you. In addition to the full list of changes on the site, I have also included an outline I prepared (under USEFUL LINKS) which goes into a little more depth than I will be able to here. Please make sure you read through that outline as many of the changes are self-explanatory and I will need to utilize my space below to expound on several of the changes specifically.

    Rule 1.9 deals with selection of medical, which is oftentimes contentious. Now, the treating provider will have to be someone who is in compliance with the fee schedule. The bigger change, however, begins when medical treatment actually commences. Within 20 days of each date of service, all providers shall:

    I. file CMS 1500 with the Commission and with the employer or carrier, and

    II. attach all office or progress notes to the CMS 1500 which shall specify

        a. the date of maximum medical improvement,

        b. any permanent partial impairment rating, and

        c. any permanent work restrictions resulting from the work-connected injury.
    
    It is far too early to know how this will play out in practice, but essentially, the new change demands treating providers file documentation with the both Commission and the employer/carrier that will not only attach the medical notation, but also list what I generally refer to as the final medical opinions. Ideally, this would be a tremendous change. Oftentimes, doctors fail to address final opinions and we are left to write to the treating provider and/or depose providers just to obtain final opinions. Additionally, many medical providers will even charge the insurer to pay for the response. Requiring medical providers make that information known, while also attaching the report itself, could be a tremendous benefit.

    Additionally, their failure to comply MAY result in the claim for medical and surgical treatment being unenforceable. Assuming doctors comply, it is a great addition and will be helpful with progressing claims. However, there are those that either will not comply routinely, if ever. Those doctors may decide not to take workers’ compensation patients any longer. Depending on the specialty, that could be detrimental as medical providers, particularly in some areas of our state, are few and far between.

    For those providers who refuse/fail to comply routinely, it will be interesting to see how the Commission reacts. With the changes just going into effect on January 18, it is too early to have rulings on the issue on any of these. It could force some providers out of workers’ compensation in general if the Commission provides Orders that employers/carriers are not responsible for treatment. It will be one of the more interesting changes to watch unfold.

    The other two rules that I want to finish with will be discussed in conjunction with one another. Rule 2.21 now states that EVERY party to a case (controverted or non-controverted) MUST keep the Commission informed of that party’s current address, e-mail address and telephone number. The key addition here is the e-mail address. For attorneys, this is not an unusual practice. However, this states that even unrepresented claimants in non-controverted matters are to keep the Commission apprised of their e-mail address.

    This is an important addition to consider when discussing Rule 2.17, which states a Claimant, or Claimant’s counsel SHALL be provided a copy of the Form B-31in any manner which acknowledges delivery of the B-31. Claimant’s signature is not required on the Form B-31, but the presence of Claimant’s signature will constitute acknowledged delivery of the B-31 to Claimant.

    For settlements involving an attorney on both sides, this changes very little. We will have the Petition, Order, Release and B-31 signed when we settle a claim and file our B-31 accordingly. If the insurer has an attorney, even if the Claimant does not, things will not change. We will meet the Claimant at the Commission, have the B-31 filed after the settlement is approved, which will constitute delivery.

    In my opinion, things become less clear when contemplating the filing of a B-31 in a scenario where the claimant is unrepresented. The rule clearly states that a Claimant’s signature is not required and that the Claimant SHALL be provided a copy of the B-31 in any manner which acknowledges delivery of the B-31.Does this mean you could simply file your B-31 and send a courtesy copy to the Claimant by e-mail? Is it necessary to send it via mail? No signature is needed, but it does that state the Claimant shall be provided a copy which acknowledges delivery. How can you prove delivery after-the-fact, in the event the matter is litigated?

    It is my recommendation that you should have some documentation that substantiates delivery of the B-31. I know the “old” way of perfecting the B-31 process was archaic and seemed unnecessary, but there was a paper trail that we could use to defend your claim after-the-fact. I think e-mail can be appropriate if you have communicated with the Claimant via e-mail regularly before. However, if that is not the case, I still recommend you use certified mail, return receipt requested and keep the green card to prove delivery. Until this is further clarified, I would recommend you make certain that you have either a signed B-31 or some means of proving delivery, as you would not want to be stuck years down the road simply because the B-31 process, as amended, is not totally clear at this time.

    These issues will certainly be litigated in the years to come, but until then, it is difficult to predict how some of the changes will impact our day-to-day practice. Please let me know if you have any questions and we can discuss further.

P.S. Our Markow Walker seminar is almost here, so please sign up. The link to sign up is under the USEFUL TABS section. We will be offering six (6) educational hours for adjusters, so please take advantage. We are actually hosting the seminar at a local hotel and have a guest discount code for those of you needing a hotel. Of course, you can always sign up on the day of the seminar too if need be, which is on February 15, 2018. I look forward to seeing you all there!