MISSISSIPPI LEGISLATURE
2012 Regular Session
To: Insurance; Judiciary A
By: Representative Hines
AN ACT TO AMEND SECTION 71-3-1, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE WORKERS' COMPENSATION LAW SHALL BE CONSTRUED UPON PROOF BY A PREPONDERANCE OF THE EVIDENCE; TO AMEND SECTION 71-3-5, MISSISSIPPI CODE OF 1972, TO REVISE CERTAIN PROVISIONS OF LAW REGARDING WHETHER OWNER/OPERATORS AND MOTOR CARRIERS ARE SUBJECT TO THE WORKERS' COMPENSATION LAW; TO AMEND SECTION 71-3-7, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISIONS OF LAW REGARDING APPORTIONMENT OF WORKERS' COMPENSATION BENEFITS; TO AMEND SECTION 71-3-11, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISIONS OF LAW REGARDING THE WAITING PERIOD FOR WORKERS' COMPENSATION BENEFITS; TO AMEND SECTION 71-3-13, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISIONS OF LAW REGARDING MAXIMUM AND MINIMUM RECOVERY UNDER THE WORKERS' COMPENSATION LAW; TO AMEND SECTION 71-3-15, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISIONS OF LAW REGARDING MEDICAL SERVICES FOR AN INJURED EMPLOYEE UNDER THE WORKERS' COMPENSATION LAW; TO AMEND SECTION 71-3-17, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISIONS OF LAW REGARDING COMPENSATION FOR DISABILITY PAID TO THE EMPLOYEE UNDER THE WORKERS' COMPENSATION LAW; TO AMEND SECTION 71-3-19, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISIONS OF LAW REGARDING ADDITIONAL MAINTENANCE COMPENSATION FOR INJURED EMPLOYEES WHILE UNDERGOING CERTAIN VOCATIONAL REHABILITATION UNDER THE WORKERS' COMPENSATION LAW; TO AMEND SECTION 71-3-21, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISIONS OF LAW REGARDING TEMPORARY PARTIAL DISABILITY UNDER THE WORKERS' COMPENSATION LAW; TO AMEND SECTION 71-3-25, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISIONS OF LAW REGARDING COMPENSATION BENEFITS FOR DEATH UNDER THE WORKERS' COMPENSATION LAW; TO AMEND SECTION 71-3-35, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISIONS OF LAW REGARDING NOTICE TO THE EMPLOYER OF INJURY UNDER THE WORKERS' COMPENSATION LAW; TO AMEND SECTION 71-3-43, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISIONS OF LAW REGARDING THE VALIDITY OF CERTAIN LOANS ON OR AGAINST COMPENSATION AND BENEFITS UNDER THE WORKERS' COMPENSATION LAW; TO AMEND SECTION 71-3-51, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISIONS OF LAW REGARDING THE RIGHT OF JUDICIAL APPEAL UNDER THE WORKERS' COMPENSATION LAW; TO AMEND SECTION 71-3-53, MISSISSIPPI CODE OF 1972, TO REVISE PROVISIONS OF LAW REGARDING THE REVIEW OF THE COMPENSATION AWARD UNDER THE WORKERS' COMPENSATION LAW; TO AMEND SECTION 71-3-55, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISIONS OF LAW REGARDING THE WORKERS' COMPENSATION COMMISSION'S PROCEDURES FOR HEARING AND OTHER PROCEEDINGS; TO AMEND SECTION 71-3-71, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISIONS OF LAW REGARDING THE COMPENSATION FOR INJURIES WHERE THIRD PARTIES ARE LIABLE UNDER THE WORKERS' COMPENSATION LAW; TO AMEND SECTION 71-3-85, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISIONS OF LAW REGARDING THE COMPOSITION OF THE WORKERS' COMPENSATION COMMISSION; TO AMEND SECTION 71-3-121, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISIONS OF LAW REGARDING DRUG AND ALCOHOL TESTING OF EMPLOYEES UNDER THE WORKERS' COMPENSATION LAW; TO CREATE A NEW SECTION OF LAW, TO REQUIRE THAT A PERSON HAVING A CLAIM AGAINST AN INSURER UNDER ANY PROVISION IN AN INSURANCE POLICY OTHER THAN A POLICY OF AN INSOLVENT INSURER, THAT IS ALSO A COVERED CLAIM, TO EXHAUST FIRST HIS RIGHT UNDER SUCH POLICY; TO PROVIDE FOR THE ORDER OF RECOVERY OF CLAIMS RECOVERABLE UNDER MORE THAN ONE ASSOCIATION, AND THE EFFECT OF RECOVERY UNDER ANOTHER INSURANCE GUARANTY ASSOCIATION; TO PROVIDE THAT THE SECTION SHALL BE CODIFIED AS A NEW SECTION WITHIN CHAPTER 3, TITLE 71, MISSISSIPPI CODE OF 1972; TO BRING FORWARD SECTION 71-3-37, MISSISSIPPI CODE OF 1972, WHICH REGARDS WORKERS' COMPENSATION PAYMENTS, FOR PURPOSES OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 71-3-1, Mississippi Code of 1972, is amended as follows:
71-3-1. This chapter shall be known and cited as "Workers' Compensation Law," and shall be administered by the Workers' Compensation Commission, hereinafter referred to as the "commission," cooperating with other state and federal authorities for the prevention of injuries and occupational diseases to workers and, in event of injury or occupational disease, their rehabilitation or restoration to health and vocational opportunity; and this chapter shall be fairly construed upon proof by a preponderance of the evidence according to the law and the evidence.
Wherever used in this chapter, or in any other statute or rule or regulation affecting the former Workmen's Compensation Law and any of its functions or duties:
(a) The words "workmen's compensation" shall mean "workers' compensation"; and
(b) The word "commission" shall mean the Workers' Compensation Commission.
SECTION 2. Section 71-3-5, Mississippi Code of 1972, is amended as follows:
71-3-5. The following shall constitute employers subject to the provisions of this chapter:
Every person, firm and private corporation, including any public service corporation but excluding, however, all nonprofit charitable, fraternal, cultural, or religious corporations or associations, that have in service five (5) or more workmen or operatives regularly in the same business or in or about the same establishment under any contract of hire, express or implied.
Any state agency, state institution, state department, or subdivision thereof, including counties, municipalities and school districts, or the singular thereof, not heretofore included under the Workers' Compensation Law, may elect, by proper action of its officers or department head, to come within its provisions and, in such case, shall notify the commission of such action by filing notice of compensation insurance with the commission. Payment for compensation insurance policies so taken may be made from any appropriation or funds available to such agency, department or subdivision thereof, or from the general fund of any county or municipality.
From and after July 1, 1990, all offices, departments, agencies, bureaus, commissions, boards, institutions, hospitals, colleges, universities, airport authorities or other instrumentalities of the "state" as such term is defined in Section 11-46-1, Mississippi Code of 1972, shall come under the provisions of the Workers' Compensation Law. Payment for compensation insurance policies so taken may be made from any appropriation or funds available to such office, department, agency, bureau, commission, board, institution, hospital, college, university, airport authority or other instrumentality of the state.
From and after October 1, 1990, counties and municipalities shall come under the provisions of the Workers' Compensation Law. Payment for compensation insurance policies so taken may be made from any funds available to such counties and municipalities.
From and after October 1, 1993, all "political subdivisions," as such term is defined in Section 11-46-1, Mississippi Code of 1972, except counties and municipalities shall come under the provisions of the Workers' Compensation Law. Payment for compensation insurance policies so taken may be made from any funds available to such political subdivisions.
From and after July 1, 1988, the "state" as such term is defined in Section 11-46-1, Mississippi Code of 1972, may elect to become a self-insurer under the provisions elsewhere set out by law, by notifying the commission of its intent to become a self-insurer. The cost of being such a self-insurer, as provided otherwise by law, may be paid from funds available to the offices, departments, agencies, bureaus, commissions, boards, institutions, hospitals, colleges, universities, airport authorities or other instrumentalities of the state.
The Mississippi Transportation Commission, the Department of Public Safety and the Mississippi Industries for the Blind may elect to become self-insurers under the provisions elsewhere set out by law by notifying the commission of their intention of becoming such a self-insurer. The cost of being such a self-insurer, as provided elsewhere by law, may be paid from funds available to the Mississippi Transportation Commission, the Department of Public Safety or the Mississippi Industries for the Blind.
The Mississippi State Senate and the Mississippi House of Representatives may elect to become self-insurers under provisions elsewhere set out by law by notifying the commission of their intention of becoming such self-insurers. The cost of being such self-insurers, as provided elsewhere by law, may be paid from funds available to the Mississippi State Senate and the Mississippi House of Representatives. The Mississippi State Senate and the Mississippi House of Representatives are authorized and empowered to provide workers' compensation benefits for employees after January 1, 1970.
Any municipality of the State of Mississippi having forty thousand (40,000) population or more desiring to do so may elect to become a self-insurer under provisions elsewhere set out by law by notifying the commission of its intention of becoming such an insurer. The cost of being such a self-insurer, as provided elsewhere by law, may be provided from any funds available to such municipality.
The commission may, under such rules and regulations as it prescribes, permit two (2) or more "political subdivisions," as such term is defined in Section 11-46-1, Mississippi Code of 1972, to pool their liabilities to participate in a group workers' compensation self-insurance program. The governing authorities of any political subdivision may authorize the organization and operation of, or the participation in such a group self-insurance program with other political subdivisions, provided such program is approved by the commission. The cost of participating in a group self-insurance program may be provided from any funds available to a political subdivision.
Domestic servants, farmers and farm labor are not included under the provisions of this chapter, but this exemption does not apply to the processing of agricultural products when carried on commercially. Any purchaser of timber products shall not be liable for workers' compensation for any person who harvests and delivers timber to such purchaser if such purchaser is not liable for unemployment tax on the person harvesting and delivering the timber as provided by United States Code Annotated, Title 26, Section 3306, as amended. Provided, however, nothing in this section shall be construed to exempt an employer who would otherwise be covered under this section from providing workers' compensation coverage on those employees for whom he is liable for unemployment tax.
Employers exempted by this section may assume, with respect to any employee or classification of employees, the liability for compensation imposed upon employers by this chapter with respect to employees within the coverage of this chapter. The purchase and acceptance by such employer of valid workers' compensation insurance applicable to such employee or classification of employees shall constitute, as to such employer, an assumption by him of such liability under this chapter without any further act on his part notwithstanding any other provisions of this chapter, but only with respect to such employee or such classification of employees as are within the coverage of the state fund. Such assumption of liability shall take effect and continue from the effective date of such workers' compensation insurance and as long only as such coverage shall remain in force, in which case the employer shall be subject with respect to such employee or classification of employees to no other liability than the compensation as provided for in this chapter.
An owner/operator, and his drivers, must provide a certificate of insurance of workers' compensation coverage to the motor carrier or proof of coverage under a self-insured plan or an occupational accident policy. The proof of coverage must be originated by the owner/operator and not by the motor carrier. Any such occupational accident policy shall provide a minimum of One Million Dollars ($1,000,000.00) of overall coverage, with a minimum of five (5) years of indemnity benefits equal to or exceeding sixty-six and two-thirds percent (66-2/3%) of the owner/operator's gross average weekly revenue and medical benefits for the duration of the work injury related medical needs. Should the owner/operator fail to provide written proof of coverage to the motor carrier, or should the coverage in the occupational accident policy not be sufficient to meet the terms in this section, then the owner/operator, and his drivers, shall be covered under the motor carrier's workers' compensation insurance program and the motor carrier is authorized to collect payment of the premium from the owner/operator. In the event that coverage is obtained by the owner/operator under a workers' compensation policy or through a self-insured or occupational accident policy, then the owner/operator, and his drivers, shall not be entitled to benefits under the motor carrier's workers' compensation insurance program unless the owner/operator has elected in writing to be covered under the carrier's workers' compensation program or policy or if the owner/operator is covered by the carrier's plan because he failed to obtain coverage. Coverage under the motor carrier's workers' compensation insurance program does not terminate the independent contractor status of the owner/operator under the written contract or lease agreement. Nothing shall prohibit or prevent an owner/operator from having or securing an occupational accident policy in addition to any workers' compensation coverage authorized by this section. Other than the amendments to this section by Chapter 523, Laws of 2006, the provisions of this section shall not be construed to have any effect on any other provision of law, judicial decision or any applicable common law.
This chapter shall not apply to transportation and maritime employments for which a rule of liability is provided by the laws of the United States.
This chapter shall not be applicable to a mere direct buyer-seller or vendor-vendee relationship where there is no employer-employee relationship as defined by Section 7l-3-3, and any insurance carrier is hereby prohibited from charging a premium for any person who is a seller or vendor rather than an employee.
Any employer may elect, by proper and written action of its own governing authority, to be exempt from the provisions of the Workers' Compensation Law as to its sole proprietor, its partner in a partnership or to its employee who is the owner of fifteen percent (15%) or more of its stock in a corporation, if such sole proprietor, partner or employee also voluntarily agrees thereto in writing. Any sole proprietor, partner or employee owning fifteen percent (15%) or more of the stock of his/her corporate employer who becomes exempt from coverage under the Workers' Compensation Law shall be excluded from the total number of workers or operatives toward reaching the mandatory coverage threshold level of five (5).
SECTION 3. Section 71-3-7, Mississippi Code of 1972, is amended as follows:
71-3-7. Compensation shall be payable for disability or death of an employee from injury or occupational disease arising out of and in the course of employment, without regard to fault as to the cause of the injury or occupational disease. An occupational disease shall be deemed to arise out of and in the course of employment when there is evidence that there is a direct causal connection between the work performed and the occupational disease.
Where a preexisting physical handicap, disease, or lesion is shown by medical findings to be a material contributing factor in the results following injury, the compensation which, but for this paragraph, would be payable shall be reduced by that proportion which such preexisting physical handicap, disease, or lesion contributed to the production of the results following the injury.
(a) Apportionment shall not be applied until the attorney-referee has determined the percentage of apportionment. Such apportionment shall apply to all benefits for temporary and permanent disability whether total or partial. To the extent that the employer and carrier have already paid an advance of unapportioned indemnity benefits, whether temporary or permanent in nature, they shall be entitled to a credit against any additional indemnity award made by the attorney-referee, subject to review by the commission as the ultimate finder of fact.
(b) The employer or carrier does not have the power to determine the date of maximum medical recovery or percentage of apportionment. This must be done by the attorney-referee, subject to review by the commission as the ultimate finder of fact.
(c) After the date the claimant reaches maximum medical recovery, weekly compensation benefits and maximum recovery shall be reduced by that proportion which the preexisting physical handicap, disease, or lesion contributes to the results following injury.
(d) If maximum medical recovery has occurred before the hearing and order of the attorney-referee, credit for excess payments shall be allowed in future payments. Such allowances and method of accomplishment of the same shall be determined by the attorney-referee, subject to review by the commission. However, no actual repayment of such excess shall be made to the employer or carrier.
No compensation shall be payable if the intoxication of the employee was the proximate cause of the injury, or if it was the willful intention of the employee to injure or kill himself or another.
Every employer to whom this chapter applies shall be liable for and shall secure the payment to his employees of the compensation payable under its provisions.
In the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor, unless the subcontractor has secured such payment.
SECTION 4. Section 71-3-11, Mississippi Code of 1972, is amended as follows:
71-3-11. No compensation except medical benefits shall be allowed for the first seven (7) days of the disability. In case the injury results in disability of fourteen (14) days or more, the compensation shall be allowed from the date of disability.
SECTION 5. Section 71-3-13, Mississippi Code of 1972, is amended as follows:
71-3-13. (1) Compensation for disability or in death cases shall not exceed sixty-six and two-thirds percent (66-2/3%) of one hundred twenty-five percent (125%) of the average weekly wage for the state per week, nor shall it be less than Fifty Dollars ($50.00) per week * * *.
(2) Maximum recovery: The total recovery of compensation hereunder, exclusive of medical payments under Section 71-3-15, arising from the injury to an employee or the death of an employee, or any combination of such injury or death, shall not exceed the multiple of six hundred (600) weeks times sixty-six and two-thirds percent (66-2/3%) of one hundred twenty-five percent (125%) of the average weekly wage for the state.
SECTION 6. Section 71-3-15, Mississippi Code of 1972, is amended as follows:
71-3-15. (1) The employer shall furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, artificial members, and other apparatus for such period as the nature of the injury or the process of recovery may require. The injured employee shall have the right to accept the services furnished by the employer or, in his discretion, to select one (1) competent physician of his choosing and such other specialists to whom he is referred by his chosen physician to administer medical treatment. Referrals by the chosen physician shall be limited to one (1) physician within a specialty or subspecialty area. Except in an emergency requiring immediate medical attention, any additional selection of physicians by the injured employee or further referrals must be approved by the employer, if self-insured, or the carrier prior to obtaining the services of the physician at the expense of the employer or carrier. If denied, the injured employee may apply to the commission for approval of the additional selection or referral, and if the commission determines that such request is reasonable, the employee may be authorized to obtain such treatment at the expense of the employer or carrier. Approval by the employer or carrier does not require approval by the commission. A physician to whom the employee is referred by his employer shall not constitute the employee's selection if such referral was made by an employer or carrier representative by suggestion, by selecting from a proposed list or by any other means. The employer and carrier are permitted to require the employee to sign a physician selection form naming the doctor whom the employee is selecting and such form will be binding as the employee's selection if the selected physician was not selected at the suggestion of the employer and carrier. Furthermore, treatment by the employee for more than one (1) year from the first date of treatment with a physician shall constitute a waiver of any further physician selection and such physician shall be deemed the employee's selection. Should the employer desire, he may have the employee examined by a physician other than of the employee's choosing for the purpose of evaluating temporary or permanent disability or medical treatment being rendered under such reasonable terms and conditions as may be prescribed by the commission and such physician shall not be paid in excess of the medical provider fee schedule set forth by the commission. Any records or opinions by physicians which resulted from charges to the employer and carrier in excess of the medical provider fee schedule will not be admissible in any hearing before the commission. If at any time during such period the employee unreasonably refuses to submit to medical or surgical treatment, the commission shall, by order, suspend the payment of further compensation during such time as such refusal continues, and no compensation shall be paid at any time during the period of such suspension; provided, that no claim for medical or surgical treatment shall be valid and enforceable, as against such employer, unless within twenty (20) days following the first treatment the physician or provider giving such treatment shall furnish to the employer, if self-insured, or its carrier, a preliminary report of such injury and treatment, on a form or in a format approved by the commission. Subsequent reports of such injury and treatment must be submitted at least every thirty (30) days thereafter until such time as a final report shall have been made. Reports which are required to be filed hereunder shall be furnished by the medical provider to the employer or carrier, and it shall be the responsibility of the employer or carrier receiving such reports to promptly furnish copies to the commission. The commission may, in its discretion, excuse the failure to furnish such reports within the time prescribed herein if it finds good cause to do so, and may, upon request of any party in interest, order or direct the employer or carrier to pay the reasonable value of medical services rendered to the employee.
(2) Whenever in the opinion of the commission a physician has not correctly estimated the degree of permanent disability or the extent of the temporary disability of an injured employee, the commission shall have the power to cause such employee to be examined by a physician selected by the commission, and to obtain from such physician a report containing his estimate of such disabilities. The commission shall have the power in its discretion to charge the cost of such examination to the employer, if he is a self-insurer, or to the insurance company which is carrying the risk.
(3) In carrying out this section, the commission shall establish an appropriate medical provider fee schedule, medical cost containment system and utilization review which incorporates one or more medical review panels to determine the reasonableness of charges and the necessity for the services, and limitations on fees to be charged by medical providers for testimony and copying or completion of records and reports and other provisions which, at the discretion of the commission, are necessary to encompass a complete medical cost containment program. The commission may contract with a private organization or organizations to establish and implement such a medical cost containment system and fee schedule with the cost for administering such a system to be paid out of the administrative expense fund as provided in this chapter. All fees and other charges for such treatment or service shall be limited to such charges as prevail in the same community for similar treatment and shall be subject to regulation by the commission. No medical bill shall be paid to any doctor until all forms and reports required by the commission have been filed. Any employee receiving treatment or service under the provisions of this chapter may not be held responsible for any charge for such treatment or service, and no doctor, hospital or other recognized medical provider shall attempt to bill, charge or otherwise collect from the employee any amount greater than or in excess of the amount paid by the employer, if self-insured, or its workers' compensation carrier. Any dispute over the amount charged for service rendered under the provisions of this chapter, or over the amount of reimbursement for services rendered under the provisions of this chapter, shall be limited to and resolved between the provider and the employer or carrier in accordance with the fee dispute resolution procedures adopted by the commission.
(4) The liability of an employer for medical treatment as herein provided shall not be affected by the fact that his employee was injured through the fault or negligence of a third party, not in the same employ, provided the injured employee was engaged in the scope of his employment when injured. The employer shall, however, have a cause of action against such third party to recover any amounts paid by him for such medical treatment.
(5) An injured worker who believes that his best interest has been prejudiced by the findings of the physician designated by the employer or carrier shall have the privilege of a medical examination by a physician of his own choosing, at the expense of the carrier or employer. Such examination may be had at any time after injury and prior to the closing of the case, provided that the charge shall not exceed the amount customarily paid by the employee and carrier for Employer Medical Evaluations and shall be paid by the carrier or employer where the previous medical findings are upset, but paid by the employee if previous medical findings are confirmed.
(6) Medical and surgical treatment as provided in this section shall not be deemed to be privileged insofar as carrying out the provisions of this chapter is concerned. All findings pertaining to a second opinion medical examination, at the instance of the employer shall be reported as herein required within fourteen (14) days of the examination, except that copies thereof shall also be furnished by the employer or carrier to the employee. All findings pertaining to an independent medical examination by order of the commission shall be reported as provided in the order for such examination.
(7) Any medical benefits paid by reason of any accident or health insurance policy or plan paid for by the employer, which were for expenses of medical treatment under this section, are, upon notice to the carrier prior to payment by it, subject to subrogation in favor of the accident or health insurance company to the extent of its payment for medical treatment under this section. Reimbursement to the accident or health insurance company by the carrier or employer, to the extent of such reimbursement, shall constitute payment by the employer or carrier of medical expenses under this section. Under no circumstances, shall any subrogation be had by any insurance company against any compensation benefits paid under this chapter.
SECTION 7. Section 71-3-17, Mississippi Code of 1972, is amended as follows:
71-3-17. Compensation for disability shall be paid to the employee as follows:
(a) Permanent total disability: In case of total disability adjudged to be permanent, sixty-six and two-thirds percent (66-2/3%) of the average weekly wages of the injured employee, subject to the minimum and maximum limitations as to weekly benefits as set up in this chapter, shall be paid to the employee not to exceed the overall maximum as set up in this chapter. Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two (2) thereof shall constitute permanent total disability. In all other cases, permanent total disability shall be determined in accordance with the facts.
(b) Temporary total disability: In case of disability, total in character but temporary in quality, sixty-six and two-thirds percent (66-2/3%) of one hundred twenty-five percent (125%) of the average weekly wages of the injured employee, subject to the minimum and maximum limitations as to weekly benefits as set up in this chapter, shall be paid to the employee during the continuance of such disability not to exceed the overall maximum as set up in this chapter. Provided, however, if there arises a conflict in medical opinions of whether or not the claimant has reached maximum medical recovery and the claimant's benefits have terminated by the carrier, then the claimant may demand an immediate hearing before the commissioner upon five (5) days' notice to the carrier for a determination by the commission of whether or not in fact the claimant has reached maximum recovery.
(c) Permanent partial disability: In case of disability partial in character but permanent in quality, the compensation shall be sixty-six and two-thirds percent (66-2/3%) of the average weekly wages of the injured employee, subject to the maximum limitations as to weekly benefits as set up in this chapter, which shall be paid following compensation for temporary total disability paid in accordance with paragraph (b) of this section, and shall be paid to the employee as follows:
Member Lost Number Weeks Compensation
(1) Arm 225
(2) Leg 200
(3) Hand 175
(4) Foot 150
(5) Eye 125
(6) Thumb 100
(7) First finger 50
(8) Great toe 50
(9) Second finger 50
(10) Third finger 30
(11) Toe other than great toe 20
(12) Fourth finger 25
(13) Testicle, one 75
(14) Testicle, both 200
(15) Breast, female, one 75
(16) Breast, female, both 200
(17) Loss of hearing: Compensation for loss of hearing of one (1) ear, forty (40) weeks. Compensation for loss of hearing of both ears, one hundred fifty (150) weeks.
(18) Phalanges: Compensation for loss of more than one (1) phalange of a digit shall be the same as for loss of the entire digit. Compensation for loss of the first phalange shall be one-half (1/2) of the compensation for loss of the entire digit.
(19) Amputated arm or leg: Compensation for an arm or leg, if amputated at or above wrist or ankle, shall be for the loss of the arm or leg.
(20) Binocular vision or percent of vision: Compensation for loss of binocular vision or for eighty percent (80%) or more of the vision of an eye shall be the same as for loss of the eye.
(21) Two (2) or more digits: Compensation for loss of two (2) or more digits, or one (1) or more phalanges of two (2) or more digits, of a hand or foot may be proportioned to the loss of the use of the hand or foot occasioned thereby, but shall not exceed the compensation for loss of a hand or foot.
(22) Total loss of use: Compensation for permanent total loss of use of a member shall be the same as for loss of the member.
(23) Partial loss or partial loss of use: Compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member.
(24) Disfigurement: The commission, in its discretion, is authorized to award proper and equitable compensation for serious * * * disfigurements or scarring not to exceed Ten Thousand Dollars ($10,000.00). No such award shall be made until a lapse of one (1) year from the date of the injury resulting in such disfigurement.
(25) Other cases: In all other cases in this class of disability, the compensation shall be sixty-six and two-thirds percent (66-2/3%) of the difference between his average weekly wages, subject to the minimum and maximum limitations as to weekly benefits as set up in this chapter, and his wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of such partial disability, but subject to reconsideration of the degree of such impairment by the commission on its own motion or upon application of any party in interest. Such payments shall in no case be made for a longer period than six hundred (600) weeks.
(26) In any case in which there shall be a loss of, or loss of use of, more than one (1) member or parts of more than one (1) member set forth in subparagraphs (1) through (23) of this paragraph (c), not amounting to permanent total disability, the award of compensation shall be for the loss of, or loss of use of, each such member or parts thereof, which awards shall run consecutively, except that where the injury affects only two (2) or more digits of the same hand or foot, subparagraph (21) of this paragraph (c) shall apply.
SECTION 8. Section 71-3-19, Mississippi Code of 1972, is amended as follows:
71-3-19. An employee who as a result of injury is or may be expected to be totally or partially incapacitated for a remunerative occupation, retraining or educational program and who, under the direction of the commission is being rendered fit to engage in a remunerative occupation, retraining or educational program may, in the discretion of the commission under regulations adopted by it, receive additional compensation necessary for his maintenance, but such additional compensation shall not exceed Five Hundred Dollars ($500.00) a week for not more than one hundred four (104) weeks in addition to the overall maximum set forth in this chapter and concurrently with any other benefits provided by this chapter.
SECTION 9. Section 71-3-21, Mississippi Code of 1972, is amended as follows:
71-3-21. In case of temporary partial disability resulting in decrease of earning capacity, there shall be paid to the injured employee sixty-six and two-thirds percent (66-2/3%) of the difference between the injured employee's average weekly wages before the injury and his wage-earning capacity after the injury in the same or other employment, subject to the minimum and maximum limitations as to weekly benefits as set up in this chapter, payable during the continuance of such disability but in no case exceeding six hundred (600) weeks or an amount greater than the overall maximum as set by this chapter.
SECTION 10. Section 71-3-25, Mississippi Code of 1972, is amended as follows:
71-3-25. If the injury causes death, the compensation shall be known as a death benefit and shall be payable in the amount and to or for the benefit of the persons following:
(a) * * * Reasonable funeral expenses not exceeding Seven Thousand Five Hundred Dollars ($7,500.00) exclusive of other burial insurance or benefits.
(b) Sixty-six and two-thirds percent (66-2/3%) of the decedent's wages subject to the minimum and maximum weekly limitations set forth in this chapter shall be paid to the family of the decedent by the employer and carrier for a period of six hundred (600) weeks. If there be a surviving spouse and no child of the deceased, to such surviving spouse the entire amount of compensation during widowhood or dependent widowhood and, if there be a surviving child or children of the deceased, the included amount of ten percent (10%) of such wages for each such child which such amount shall be reduced from the compensation for the spouse and provided for each child. In case there is no surviving spouse or in case of the death or remarriage of such surviving spouse, any surviving children of the deceased employee shall share the entire amount of compensation provided for in this chapter equally with other surviving children of the deceased. If there be any child not surviving then the non-surviving child's spouse, children, brothers, sisters and grandchildren shall share such non-surviving spouse's portion as otherwise provided in this chapter. The commission may, in its discretion, require the appointment of a guardian for the purpose of receiving the compensation of a minor dependent. In the absence of such a requirement, the appointment of a guardian for such purposes shall not be necessary, provided that if no legal guardian be appointed, payment to the natural guardian shall be sufficient.
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(c) If there be no surviving spouse or child, then such compensation provided for in this chapter shall be provided in equal shares to all surviving grandchildren or brothers and sisters of the decedent.
(d) The total weekly compensation payments to any or all beneficiaries in death cases shall not exceed the weekly benefits as set up in this chapter and shall in no case be paid for a longer period than six hundred (600) weeks or for a greater amount than the maximum as set forth in this chapter.
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SECTION 11. Section 71-3-35, Mississippi Code of 1972, is amended as follows:
71-3-35. (1) No claim for compensation shall be maintained unless, within thirty (30) days after the occurrence or discovery by the employee of the injury, actual notice was received by the employer or by an officer, manager, or designated representative of an employer. If no representative has been designated by posters placed in one or more conspicuous places, then notice received by any superior shall be sufficient. Absence of notice shall not bar recovery if it is found that the employer had knowledge of the injury and was not prejudiced by the employee's failure to give notice. Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made and no application for benefits filed with the commission within two (2) years from the date of the injury or death, the right to compensation therefor shall be barred. If any benefits are paid whether for medical, compensation or other workers' compensation benefits, then no application for benefits shall be filed with the commission more than one (1) year from the date the last medical payment, compensation or other workers' compensation benefit was denied. In any event, and in no case, shall the limitation period be less than two (2) years from the date of injury or the date the injury was known or should have been known.
(2) If a person who is entitled to compensation under this chapter is mentally incompetent or a minor, the limitation for filing application for benefits shall not be applicable so long as such person has no guardian or other authorized representative, but shall be applicable in the case of a person who is mentally incompetent or a minor from the date of appointment of such guardian or other representative, or in the case of a minor, if no guardian is appointed before he becomes of age, from the date he becomes of age.
(3) Where recovery is denied to any person, in a suit brought at law or admiralty to recover damages in respect of injury or death, on the ground that such person was an employee and that the defendant was an employer within the meaning of this chapter and that such employer had secured compensation to such employee under this chapter, the limitation upon filing application for benefits shall begin to run only from the date of termination of such suit.
SECTION 12. Section 71-3-43, Mississippi Code of 1972, is amended as follows:
71-3-43. No assignment, release, loan on or against compensation or commutation of compensation or benefits due or payable under this chapter, except as provided by this chapter, shall be valid; and such compensation and benefits shall be exempt from all claims of creditors and from levy, execution, and attachment or other remedy for recovery or collection of a debt, which exemption may be waived. This section prevails over Sections 75-9-406 and 75-9-408 of Article 9 of the Uniform Commercial Code to the extent, if any, that these sections may otherwise be applicable. If any person or company shall loan an employee money with the promise to be paid back from compensation funds or workers' compensation lump sum settlement, such transaction shall not be valid and the person or company loaning the funds shall forfeit any such funds without redress.
SECTION 13. Section 71-3-51, Mississippi Code of 1972, is amended as follows:
71-3-51. The final award of the commission shall be conclusive and binding unless either party to the controversy shall, within thirty (30) days from the date of its filing in the office of the commission and notification to the parties, appeal therefrom to the Supreme Court according to the rules set forth by such court and in the same manner by which an appeal would be taken by law from a circuit court to the Supreme Court according to the Rules of Appellate Procedures, with the exception of Rule 11(b), as promulgated by the Supreme Court.
Such appeal may be taken by filing notice of appeal with the commission, whereupon the commission shall under its certificate transmit to the Supreme Court all documents and papers on file in the matter, together with a transcript of the evidence, the findings, and award, which shall thereupon become the record of the cause. Appeals shall be considered only upon the record as made before the commission. The Supreme Court shall always be deemed open for hearing of such appeals. The Supreme Court shall review all questions of law and of fact. If no prejudicial error be found, the matter shall be affirmed and remanded to the commission for enforcement. If prejudicial error be found, the same shall be reversed and the Supreme Court shall enter such judgment or award as the commission should have entered. An appeal from the commission to the Supreme Court shall not act as a supersedeas unless the court shall so direct, and then upon such terms as such court shall direct.
No controversy shall be heard by the commission or an award of compensation made therein while the same matter is pending either before a federal court or in any court in this state.
Any award of compensation made by the Supreme Court shall bear the same interest and penalties as do other judgments awarded in circuit court.
SECTION 14. Section 71-3-53, Mississippi Code of 1972, is amended as follows:
71-3-53. Upon its own initiative or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in a determination of fact, the commission may, at any time prior to one (1) year after date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one (1) year after the rejection of a claim, review a compensation case, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation. Such new order shall not affect any compensation previously paid, except that an award increasing the compensation rate may be made effective from the date of the injury; and if any part of the compensation due or to become due is unpaid, an award decreasing the compensation rate may be made effective from the date of the injury, and any payment made prior thereto in excess of such decreased rate shall be deducted from any unpaid compensation in such manner and by such method as may be determined by the commission. This section shall not be construed to limit, reduce, alter or affect the statute of limitations for filing a workers' compensation claim as stated in Section 71-3-35.
SECTION 15. Section 71-3-55, Mississippi Code of 1972, is amended as follows:
71-3-55. (1) In making an investigation or inquiry or conducting a hearing, the commission shall not be bound by common law or statutory rules of evidence or by technical or formal rules or procedure, except as provided by this chapter, but may make such investigation or inquiry or conduct such hearing in such manner as best to ascertain the rights of the parties. Declarations of a deceased employee concerning the injury in respect of which the investigation or inquiry is being made or the hearing conducted shall be received in evidence and shall, if corroborated by other evidence, be sufficient to establish the injury.
(2) Hearings before the commission shall be open to the public and shall be stenographically reported or recorded and transcribed. The commission shall by regulations provide for the preparation of a record of the hearings and other proceedings.
(3) Unless otherwise ordered by the commission, hearings shall be conducted in the county where the injury occurred or at the headquarters of the commission located in Hinds County should the claimant so elect and should the commission find such hearing location to be the most efficient and convenient location considering the interests of all parties and the time and resources of the commission.
SECTION 16. Section 71-3-71, Mississippi Code of 1972, is amended as follows:
71-3-71. The acceptance of compensation benefits from or the making of a claim for compensation against an employer or insurer for the injury or death of an employee shall not affect the right of the employee or his dependents to sue any other party at law for such injury or death, but the employer or his insurer shall be entitled to reasonable notice and opportunity to join in any such action or may intervene therein. If such employer or insurer join in such action, they shall be entitled to repayment of the amount paid by them as compensation and medical expenses from
the * * * proceeds of such action less a pro rata share of the costs of collection as hereinafter provided.
The commencement of an action by an employee or his dependents (or legal representative) against a third party for damages by reason of the injury, or the adjustment of any such claim, shall not affect the right of the injured employee or his dependents (or legal representative) to recover compensation, but any amount recovered by the injured employee or his dependents (or legal representative) from a third party shall be applied as follows: reasonable costs of collection as approved and allowed by the court in which such action is pending, or by the commission of this state in case of settlement without suit, shall be deducted; the remainder, or so much thereof as is necessary, shall be used to discharge the legal liability of the employer or insurer less a pro rata share of the costs of collection; and any excess shall belong to the injured employee or his dependents. The employee or his dependents bringing suit against the third party must notify the employer or carrier within fifteen (15) days of the filing of such suit.
An employer or compensation insurer who shall have paid compensation benefits under this chapter for the injury or death of the employee shall have the right to maintain an action at law against any other party responsible for such injury or death, in the name of such injured employee or his beneficiaries, or in the name of such employer or insurer, or any or all of them. If reasonable notice and opportunity to be represented in such action by counsel shall have been given to the compensation beneficiary, all claims of such compensation beneficiary shall be determined in such action, as well as the claim of the employer or insurer. If recovery shall be had against such other party, by suit or otherwise, the compensation beneficiary shall be entitled to any amount recovered over and above the amount that the employer and insurer shall have paid or are liable for in compensation or other benefits, after deducting the reasonable costs of collection.
In case of settlement of any action before the trial thereof, such settlement shall be subject to the approval of the court wherein such action is pending, and settlement before an action is brought shall be subject to the approval of the commission. Distribution of the portion belonging to the dependents shall be made among such dependents in the manner provided in this chapter.
In case of liability of the employer or insurer to make payment to the State Treasury under the Second Injury Fund provisions, if the injury or death creates a legal liability against a third party, the employer or insurer shall have a right of action against such third party for reimbursement of any sum so paid into the State Treasury, which right may be enforced in the action heretofore provided or by an independent action.
SECTION 17. Section 71-3-85, Mississippi Code of 1972, is amended as follows:
71-3-85. (1) There is hereby created a commission to be known as the Workers' Compensation Commission, consisting of three (3) members, who shall devote their entire time to the duties of the office. The Governor shall appoint the members of the commission, by and with the consent of the Mississippi State Senate, one (1) for a term of two (2) years, one (1) for a term of four (4) years, and one (1) for a term of six (6) years. Upon the expiration of each term as above set forth, the Governor shall appoint a successor for a term of six (6) years, and thereafter the term of office of each commissioner shall be for six (6) years. One (1) member shall be a person who by reason of his previous vocation or affiliation can be classed as a representative of employers and who has at least five (5) years of experience dealing with workers' compensation claims, and one (1) member shall be a person who by reason of his previous vocation or affiliation can be classed as a representative of employees and who has at least five (5) years of experience dealing with workers' compensation claims. One (1) member shall be an attorney at law of recognized ability with at least five (5) years' active practice in Mississippi with a substantial portion of such practice in the area of Workers' Compensation prior to his appointment. If possible by way of qualification and experience, at least one (1) of the three (3) members should have previous experience as an administrative law judge for the commission. The Governor shall designate the chairman of the commission, whose term of chairman shall run concurrently with his appointment as a commissioner.
The chairman shall be the administrative head of the commission and shall have the final authority in all matters relating to assignment of cases for hearing and trial and the administrative work of the commission and its employees, except in the promulgation of rules and regulations wherein the commission shall act as a body, and in the trial and determination of cases as otherwise provided.
Upon the expiration of the term of a commissioner, he shall continue to serve until his successor has been appointed. Because cumulative experience is conspicuously essential to the proper administration of a Workers' Compensation Law, it is declared to be in the public interest to continue Workers' Compensation Commissioners in office as long as efficiency is demonstrated. A commissioner may be removed for cause prior to the expiration of his term, but shall be furnished a written copy of the charges against him and shall be accorded a public hearing.
Each member of the commission and each administrative law judge shall receive an annual salary fixed by the Legislature.
(2) A vacancy in the commission, if there remain two (2) members of it, shall not impair the authority of such two (2) members to act. In case of illness or continued absence for other reasons, the same authority of such two (2) members shall apply.
(3) The commission shall have the powers and duties necessary for effecting the purposes of this chapter, including the powers of a court of record for compelling the attendance of witnesses, examining them under oath, and compelling the production of books, papers, documents and objects relevant to the determination of a claim for compensation, and the power to adopt rules and regulations and make or approve the forms relating to notices of injuries, payment of claims and other purposes. The authority of the commission and its duly authorized representatives to investigate and determine claims for compensation shall include the right to enter the premises where an injury occurred, to ascertain its causes and circumstances.
(4) The office of the commission shall be situated in the City of Jackson, but hearings may be held at such places as it may deem most convenient for the proper and speedy performance of its duties. The commission is authorized, if it deems it necessary for the convenient and efficient dispatch of business, to lease office space and facilities in other than publicly owned buildings.
(5) The commission shall adopt detailed rules and regulations for implementing the purposes of this chapter at hearings attended by the main parties interested. Such rules, upon adoption, shall be published and be at all reasonable times made available to the public and, if not inconsistent with law, shall be binding upon those participating in the responsibilities and benefits of the Workers' Compensation Law.
(6) The commission shall adopt or approve the forms required for administering the chapter, such notices of injury, application for benefits, receipts for compensation and all other forms needed to assure the orderly and prompt operation of the law, and may require the exclusive use of any or all such approved forms.
SECTION 18. Section 71-3-121, Mississippi Code of 1972, is amended as follows:
71-3-121. The Commissioner of Insurance shall promulgate such rules and regulations as to require each insurer to establish a safety program for the health and benefit of the employees of the insured employer. Such safety program shall include language to explain the rights of workers under the Workers' Compensation Law. Such safety program shall require that all insured employers implement a written policy for drug and alcohol testing in accordance with Section 71-7-1 et seq., Mississippi Code of 1972, in order to ensure that the workplace is a drug and alcohol free environment and to deter the use of drugs and alcohol at the workplace. Under such policy, * * * the employer may require the employee to submit to a test for the presence of any controlled substances or alcohol in his system if the employer has probable cause to suspect that an employee is under the influence of any controlled substances or alcohol to the extent the employee was impaired and that such impairment was a proximate cause of the employee's injury.
In the event the employee is injured, the employer may offer the results of drug and alcohol tests, whether employer-administered or otherwise, subject to other rules of admissibility as set forth by the commission, as evidence solely on the issue of causation in the determination of intoxication of an employee at the time of injury for workers' compensation purposes under Section 71-3-7.
SECTION 19. (1) Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer, that is also a covered claim, shall be required to exhaust first his right under such policy. Any amount payable on a covered claim under Sections 71-3-151 through 71-3-181 shall be reduced by the amount of any recovery under such insurance policy.
(2) Any person having a claim that may be recovered under more than one (1) insurance guaranty association or its equivalent shall seek recovery first from the association of the place of residence of the claimant. Any amount payable on a covered claim under Sections 71-3-151 through 71-3-181 shall be reduced by the amount of any recovery from any other insurance guaranty association or its equivalent.
SECTION 20. Section 19 of this shall be codified as a new section within Chapter 3, Title 71, Mississippi Code of 1972.
SECTION 21. Section 71-3-37, Mississippi Code of 1972, is brought forward as follows:
71-3-37. (1) Compensation under this chapter shall be paid periodically, promptly, in the usual manner, and directly to the person entitled thereto, without an award except where liability to pay compensation is controverted by the employer.
(2) The first installment of compensation shall become due on the fourteenth (14th) day after the employer has notice, as provided in Section 71-3-35, of the injury or death, on which date all compensation then due shall be paid. Thereafter, compensation shall be paid in installments, every fourteen (14) days, except where the commission determines that payment in installments should be made at some other period.
(3) Upon making the first payment and upon suspension of payment for any cause, the employer shall immediately notify the commission in accordance with a form prescribed by the commission that payment of compensation has begun or has been suspended, as the case may be. No suspension in payments of compensation shall be made for refusing to submit to medical or surgical treatment until the reasonableness of such request or refusal has been determined by the commission, and a written order suspending payment issued.
(4) If the employer controverts the right to compensation, he shall file with the commission, on or before the fourteenth day after he has knowledge of the alleged injury or death, a notice in accordance with a form prescribed by the commission, stating that the right to compensation is controverted, the name of the claimant, the name of the employer, the date of the alleged injury or death, and the grounds upon which the right to compensation is controverted. Failure to file this notice shall not prevent the employer raising any defense where claim is subsequently filed by the employee, nor shall the filing of the notice preclude the employer raising any additional defense.
(5) If any installment of compensation payable without an award is not paid within fourteen (14) days after it becomes due, as provided in subsection (2) of this section, there shall be added to such unpaid installment an amount equal to ten percent (10%) thereof, which shall be paid at the same time as, but in addition to, such installment unless notice is filed under subsection (4) of this section, or unless such nonpayment is excused by the commission after a showing by the employer that owing to conditions over which he had no control such installment could not be paid within the period prescribed for the payment.
(6) If any installment payable under the terms of an award is not paid within fourteen (14) days after it becomes due, there shall be added to such unpaid installment an amount equal to twenty percent (20%) thereof, which shall be paid at the same time as, but in addition to, such compensation unless review of the compensation order making such award is had.
(7) Within thirty (30) days after the final payment of compensation has been made, the employer shall send to the commission a notice in accordance with a form prescribed by the commission, stating that such final payment has been made, the total amount of compensation paid, the name of the employee and of any other person to whom compensation has been paid, the date of the injury or death, and the date to which compensation has been paid. If the employer fails so to notify the commission within such time, the commission may assess against such employer a civil penalty in an amount not exceeding One Hundred Dollars ($100.00). No case shall be closed nor any penalty be assessed without notice to all parties interested and without giving to all such parties an opportunity to be heard.
(8) The commission (a) may upon its own initiative at any time in a case in which payments are being made without an award, and (b) shall in any case where right to compensation is controverted or where payments of compensation have been stopped or suspended, upon receipt of notice from any person entitled to compensation or from the employer that the right to compensation is controverted or that payments of compensation have been stopped or suspended, make such investigations, cause such medical examinations to be made, hold such hearings, and take such further action as it considers will properly protect the rights of all parties.
(9) Whenever the commission deems it advisable, it may require any self-insurer to make a deposit with the State Treasurer to secure prompt and convenient payment of such compensation; and payments therefrom upon any awards shall be made upon order of the commission.
(10) Whenever the commission determines that it is for the best interests of a person entitled to compensation, the liability of the employer for compensation, or any part thereof as determined by the commission, may be discharged by the payment of a lump sum equal to the present value of future compensation payments commuted, computed at four percent (4%) true discount compounded annually. The probability of the death of the injured employee or other person entitled to compensation shall be determined in accordance with validated actuarial tables or factors as the commission finds equitable and consistent with the purposes of the Workers' Compensation Law, and the probability of the remarriage of the surviving spouse or other person entitled to compensation may be determined in accordance with rules adopted by the commission which shall apply validated actuarial tables or factors as the commission finds equitable and consistent with the purposes of the Workers' Compensation Law. The probability of the happening of any other contingency affecting the amount or duration of the compensation shall be disregarded. The commission shall be the sole judge as to whether or not a lump-sum payment shall be to the best interest of the injured worker or his dependents.
(11) If the employer has made advance payments of compensation, he shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due.
(12) An injured employee or, in case of death, his dependents or personal representative shall give receipts for payment of compensation to the employer paying the same; and whenever required, such employer shall produce the same for inspection by the commission.
(13) Whenever a dispute arises between two (2) or more parties as to which party is liable for the payment of workers' compensation benefits to an injured employee and there is no genuine issue of material fact as to the employee's employment, his average weekly wage, the occurrence of an injury, the extent of the injury, and the fact that the injury arose out of and in the course of the employment, the commission may require the disputing parties involved to pay benefits immediately to the employee and to share equally in the payment of those benefits until it is determined which party is solely liable, at which time the liable party must reimburse all other parties for the benefits they have paid to the employee with interest at the legal rate.
SECTION 22. This act shall take effect and be in force from and after July 1, 2012.