MISSISSIPPI LEGISLATURE
2011 Regular Session
To: Insurance; Judiciary A
By: Representatives Gunn, Chism, Staples
AN ACT TO ALLOW AN INSURANCE CARRIER, EMPLOYEE OR THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION TO REQUEST A MEDICAL EXAMINATION BY A DESIGNATED DOCTOR TO RESOLVE CERTAIN QUESTIONS REGARDING AN INJURED EMPLOYEE; TO ALLOW THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION TO EXTEND THE TIME PERIOD FOR MAXIMUM MEDICAL RECOVERY WHEN AN EMPLOYEE HAS HAD SPINAL SURGERY OR HAS BEEN APPROVED FOR SPINAL SURGERY; TO REQUIRE THE COMMISSION TO MAINTAIN AN OMBUDSMAN PROGRAM TO ASSIST INJURED EMPLOYEES AND PERSONS CLAIMING DEATH BENEFITS IN OBTAINING BENEFITS UNDER THE MISSISSIPPI WORKERS' COMPENSATION LAW; TO PROVIDE FOR THE QUALIFICATIONS NECESSARY FOR A PERSON SERVING AS AN OMBUDSMAN; TO REQUIRE HEALTH CARE PROVIDERS PROVIDING TREATMENT UNDER THE MISSISSIPPI WORKERS' COMPENSATION LAW TO PROVIDE TREATMENT IN ACCORDANCE WITH THE CURRENT EDITION OF THE "OFFICIAL DISABILITY GUIDELINES – TREATMENT IN WORKERS' COMP" PUBLISHED BY WORK LOSS DATA INSTITUTE; TO AMEND SECTION 71-3-3, MISSISSIPPI CODE OF 1972, TO DEFINE THE TERMS "MAXIMUM MEDICAL RECOVERY" AND "DESIGNATED DOCTOR" AS USED IN THE MISSISSIPPI WORKERS' COMPENSATION LAW; TO BRING FORWARD SECTION 71-3-15, MISSISSIPPI CODE OF 1972, WHICH CONTAINS PROVISIONS OF LAW REGARDING MEDICAL SERVICES FOR INJURED EMPLOYEES UNDER THE MISSISSIPPI WORKERS' COMPENSATION LAW, FOR PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) At the request of an insurance carrier or an employee, or on the commission's own order, the commission may order a medical examination to resolve any question about:
(a) The impairment caused by the compensable injury;
(b) The attainment of maximum medical recovery;
(c) The extent of the employee's compensable injury;
(d) Whether the injured employee's disability is a direct result of the work-related injury;
(e) The ability of the employee to return to work; or
(f) Issues similar to those described by paragraphs (a) through (e).
(2) A medical examination requested under subsection (1) of this section shall be performed by the next available doctor on the commission's list of designated doctors whose credentials are appropriate for the issue in question and the injured employee's medical condition as determined by commission rule. The commission shall assign a designated doctor not later than the tenth day after the date on which the request under subsection (1) of this section is approved, and the examination must be conducted not later than the twenty-first day after the date on which the commission issues the order under subsection (1) of this section. An examination under this section may not be conducted more frequently than every sixty (60) days, unless good cause for more frequent examinations exists, as defined by commission rules.
(3) The treating doctor and the insurance carrier are both responsible for sending to the designated doctor all of the injured employee's medical records relating to the issue to be evaluated by the designated doctor that are in their possession. The treating doctor and insurance carrier may send the records without a signed release from the employee. The designated doctor is authorized to receive the employee's confidential medical records to assist in the resolution of disputes. The treating doctor and insurance carrier may also send the designated doctor an analysis of the injured employee's medical condition, functional abilities, and return-to-work opportunities.
(4) To avoid undue influence on a person selected as a designated doctor under this section, and except as provided by subsection (3) of this section, only the injured employee or an appropriate member of the commission's staff may communicate with the designated doctor about the case regarding the injured employee's medical condition or history before the examination of the injured employee by the designated doctor. After that examination is completed, communication with the designated doctor regarding the injured employee's medical condition or history may be made only through appropriate commission staff members. The designated doctor may initiate communication with any doctor or health care provider who has previously treated or examined the injured employee for the work-related injury or with peer reviewers identified by the insurance carrier.
(5) The designated doctor shall report to the commission. The report of the designated doctor has presumptive weight unless the preponderance of the evidence is to the contrary. An employer may make a bona fide offer of employment, subject to any other applicable state laws, based on the designated doctor's report.
(6) Unless otherwise ordered by the commission, the insurance carrier shall pay benefits based on the opinion of the designated doctor during the pendency of any dispute. If an insurance carrier is not satisfied with the opinion rendered by a designated doctor under this section, the insurance carrier may request the commission to order an employee to attend an examination by a doctor selected by the insurance carrier.
(7) An injured employee is entitled to have a doctor of the employee's choice present at an examination requested by an insurance carrier under subsection (6) of this section. The insurance carrier shall pay a fee set by the commission to the doctor selected by the employee.
(8) The insurance carrier shall pay for:
(a) An examination required under subsection (1) or (6) of this section; and
(b) The reasonable expenses incident to the employee in submitting to the examination.
(9) An employee who, without good cause as determined by the commission, fails or refuses to appear at the time scheduled for an examination under subsection (1) or (6) of this section commits an administrative violation. An injured employee may not be fined more than Ten Thousand Dollars ($10,000.00) for a violation of this subsection.
(10) An employee is not entitled to temporary total disability benefits, and an insurance carrier is authorized to suspend the payment of temporary total disability benefits, during and for a period in which the employee fails to submit to an examination required by subsection (1) or (6) of this section unless the commission determines that the employee had good cause for the failure to submit to the examination. The commission may order temporary total disability benefits to be paid for the period for which the commission determined that the employee had good cause. The commissioner by rule shall ensure that:
(a) An employee receives reasonable notice of an examination and the insurance carrier's basis for suspension; and
(b) The employee is provided a reasonable opportunity to reschedule an examination for good cause.
(11) If the report of a designated doctor indicates that an employee has reached maximum medical recovery or is otherwise able to return to work immediately, the insurance carrier may suspend or reduce the payment of temporary total disability benefits immediately.
(12) A person who makes a frivolous request for a medical examination under subsection (1) or (6) of this section, as determined by the commission, commits an administrative violation.
SECTION 2. (1) On application by either the employee or the insurance carrier, the commission by order may extend the one hundred-four-week period under Section 71-3-3(t)(ii) if the employee has had spinal surgery, or has been approved for spinal surgery, within twelve (12) weeks before the expiration of the one hundred-four-week period. If an order is issued under this section, the order shall extend the statutory period for maximum medical recovery to a date certain, based on medical evidence presented to the commissioner.
(2) Either the employee or the insurance carrier may dispute an application for extension made under this section.
(3) The commission shall adopt rules to implement this section, including rules establishing procedures for requesting and disputing an extension.
SECTION 3. (1) The commission shall maintain an ombudsman program to assist injured employees and persons claiming death benefits in obtaining benefits under this chapter.
(2) An ombudsman shall:
(a) Meet with or otherwise provide information to injured employees;
(b) Investigate complaints;
(c) Communicate with employers, insurance carriers, and health care providers on behalf of injured employees;
(d) Assist unrepresented claimants to enable those persons to protect their rights in the workers' compensation system; and
(e) Meet with an unrepresented claimant privately for a minimum of fifteen (15) minutes prior to any informal or formal hearing.
SECTION 4. (1) To be eligible for designation as an ombudsman, a person must:
(a) Demonstrate satisfactory knowledge of the requirements of:
(i) The Mississippi Workers' Compensation Law; and
(ii) The rules adopted under the Mississippi Workers' Compensation Law.
(b) Have demonstrated experience in handling and resolving problems for the general public;
(c) Possess strong interpersonal skills; and
(d) Have at least one (1) year of demonstrated experience in the field of workers' compensation.
(2) The commission shall by rule adopt training guidelines and continuing education requirements for ombudsmen. Training provided under this subsection must:
(a) Include education regarding the Mississippi Workers' Compensation Law, rules adopted under the Mississippi Workers' Compensation Law, and decisions of the appeals panel, with emphasis on benefits and the dispute resolution process; and
(b) Require an ombudsman undergoing training to be observed and monitored by an experienced ombudsman during daily activities conducted under the Mississippi Workers' Compensation Law.
SECTION 5. (1) Each employer shall notify its employees of the ombudsman program in the manner prescribed by the commission.
(2) The commission shall widely disseminate information about the ombudsman program.
(3) An employer commits an administrative violation if the employer fails to comply with subsection (1) of this section.
SECTION 6. (1) At the written request of an ombudsman designated under this chapter who is assisting a specific injured employee, a health care provider shall provide copies of the injured employee's medical records to the ombudsman at no cost to the ombudsman or the commission.
(2) The workers' compensation insurance carrier is liable to the health care provider for the cost of providing copies of the employee's medical records under this section. The insurance carrier may not deduct that cost from any benefit to which the employee is entitled.
(3) The amount charged for providing copies of an injured employee's medical records under this section is the amount prescribed by rules adopted by the commission for copying medical records.
(4) A health care provider may not require payment for the cost of providing copies of an injured employee's medical records under this section before providing the copies to the ombudsman.
(5) The commission may adopt rules regarding a time frame for the provision of copies of an injured employee's medical records under this section and any other matter relating to provision of those copies.
(6) A health care provider or insurance carrier that fails to comply with the requirements of this section or rules adopted under this section commits an administrative violation.
SECTION 7. (1) Health care providers providing treatment under the Mississippi Workers' Compensation Law shall provide treatment in accordance with the current edition of the "Official Disability Guidelines – Treatment in Workers' Comp," excluding the return to work pathways, published by Work Loss Data Institute.
(2) Information on how to obtain or inspect copies of the treatment guidelines shall be provided on the commission's website.
(3) Health care provided in accordance with the treatment guidelines is presumed reasonable, and is also presumed to be health care reasonably required.
(4) The insurance carrier is not liable for the costs of treatments or services provided in excess of the treatment guidelines unless:
(a) The treatment or services were provided in a medical emergency; or
(b) The treatment or services were preauthorized in accordance with applicable state law.
(5) An insurance carrier may retrospectively review, and if appropriate, deny payment for treatments and services not preauthorized under subsection (4) of this section when the insurance carrier asserts that health care provided within the treatment guidelines is not reasonably required. The assertion must be supported by documentation of evidence-based medicine that outweighs the presumption of reasonableness.
(6) A health care provider that proposes treatments and services which exceed, or are not included, in the treatment guidelines may be required to obtain preauthorization, or may be required to submit a treatment plan.
(7) The insurance carrier shall not deny treatment solely because the diagnosis or treatment is not specifically addressed by the treatment guidelines or treatment protocols.
(8) This section applies to health care provided on or after July 1, 2011.
SECTION 8. Section 71-3-3, Mississippi Code of 1972, is amended as follows:
71-3-3. Unless the context otherwise requires, the definitions which follow govern the construction and meaning of the terms used in this chapter:
(a) "Person" includes an individual, firm, voluntary association or a corporation.
(b) "Injury" means accidental injury or accidental death arising out of and in the course of employment without regard to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner. Untoward event includes events causing unexpected results. An untoward event or events shall not be presumed to have arisen out of and in the course of employment, except in the case of an employee found dead in the course of employment. This definition includes injuries to artificial members, and also includes an injury caused by the willful act of a third person directed against an employee because of his employment while so employed and working on the job, and disability or death due to exposure to ionizing radiation from any process in employment involving the use of or direct contact with radium or radioactive substances with the use of or direct exposure to roentgen (X-rays) or ionizing radiation. In radiation cases only, the date of disablement shall be treated as the date of the accident. Occupational diseases, or the aggravation thereof, are excluded from the term "injury," provided that, except as otherwise specified, all provisions of this chapter apply equally to occupational diseases as well as injury.
(c) "Death," when mentioned as a basis for the right to compensation, means only death resulting from such an injury.
(d) "Employee" means any person, including a minor whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, written or oral, express or implied, provided that there shall be excluded therefrom all independent contractors and especially any individual performing service in, and at the time of, the sale of newspapers or magazines to ultimate consumers under an arrangement under which the newspapers or magazines are to be sold by the individual at a fixed price, the individual's compensation being based on the retention of the excess of such price over the amount at which the newspapers or magazines are charged to the individual, whether or not the individual is guaranteed a minimum amount of compensation for such service or is entitled to be credited with the unsold newspapers or magazines returned. A student of an educational institution who, as a part of such educational institution's curriculum, is receiving practical training at any facility, who is under the active and direct supervision of the personnel of the facility and/or an instructor of the educational institution, and who is not receiving wages as a consequence of participation in such practical training shall not be considered an employee of such facility on account of participation in such practical training.
(e) "Employer," except when otherwise expressly stated, includes a person, partnership, association, corporation and the legal representatives of a deceased employer, or the receiver or trustee of a person, partnership, association or corporation.
(f) "Carrier" means any person authorized in accordance with the provisions of this chapter to insure under this chapter and includes self-insurers.
(g) "Self-insurer" is an employer who has been authorized under the provisions of this chapter to carry his own liability on his covered employees without insuring in a stock or mutual carrier.
(h) "Commission" means the Workers' Compensation Commission.
(i) "Disability" means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.
(j) "Compensation" means the money allowance payable to an injured worker or his dependents as provided in this chapter, and includes funeral benefits provided therein.
(k) "Wages" includes the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of injury, and also the reasonable value of board, rent, housing, lodging or similar advantage received from the employer and gratuities received in the course of employment from others than the employer. The term "wages" shall not include practical training received by students of an educational institution as a part of such educational institution's curriculum.
(l) "Child" shall include a posthumous child, a child legally adopted prior to the injury of the employee, a child in relation to whom the deceased employee stood in the place of a parent for at least one (1) year prior to the time of injury and a stepchild or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent on him. "Grandchild" means a child as above defined of a child as above defined. "Brother" and "sister" include stepbrothers and stepsisters, half brothers and half sisters, and brothers and sisters by adoption, but does not include married brothers nor married sisters unless wholly dependent on the employee. "Child," "grandchild," "brother" and "sister" include only persons who are under eighteen (l8) years of age, and also persons who, though eighteen (l8) years of age or over, are wholly dependent upon the deceased employee and incapable of self-support by reason of mental or physical disability, and also a child eighteen (18) years of age or older, until his twenty-third birthday, who is dependent upon the deceased and is pursuing a full-time education.
(m) "Parent" includes stepparents and parents by adoption, parents-in-law or any person who for more than three (3) years prior to the death of the deceased employee stood in the place of a parent to him, or her, if dependent on the injured employee.
(n) The term "surviving spouse" includes the decedent's legal wife or husband, living with him or her or dependent for support upon him or her at the time of death or living apart for justifiable cause or by reason of desertion at such time, provided, however, such separation had not existed for more than three (3) years without an award for separate maintenance or alimony or the filing of a suit for separate maintenance or alimony in the proper court in this state. The term "surviving spouse" shall likewise include one not a legal wife or husband but who had entered into a ceremonial marriage with the decedent at least one (1) year prior to death and who, on the date of the decedent's death, stood in the relationship of a wife or husband, provided there was no living legal spouse who had protected her or his rights for support by affirmative action as hereinabove required. The term "surviving spouse" as contemplated in this chapter shall not apply to any person who has, since his or her separation from decedent, entered into a ceremonial marriage or lived in open adultery with another.
(o) The term "adoption" or "adopted" means legal adoption prior to the time of the injury.
(p) The singular includes the plural and the masculine includes the feminine and neuter.
(q) It is expressly provided, agreed and understood in determining beneficiaries under this section that a surviving spouse suffering a mental or physical handicap and children under the age of eighteen (18) years are presumed to be dependent.
(r) "Independent contractor" means any individual, firm or corporation who contracts to do a piece of work according to his own methods without being subject to the control of his employer except as to the results of the work, and who has the right to employ and direct the outcome of the workers independent of the employer and free from any superior authority in the employer to say how the specified work shall be done or what the laborers shall do as the work progresses, one who undertakes to produce a given result without being in any way controlled as to the methods by which he attains the result.
(s) "Average weekly wage for the state" means an amount determined by the commission as of October 1 of each year based upon wage and employment statistics reported to the commission by the Mississippi Employment Security Commission. Such amount shall be based upon data for the preceding twelve-month period and shall be effective from and after January 1 of the following year.
(t) "Maximum medical recovery" means the earlier of:
(i) The earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated;
(ii) The expiration of one hundred four (104) weeks from the date on which income benefits begin to accrue; or
(iii) The date determined as provided by Section 2 of this act.
(u) "Designated doctor" means a doctor on the commission's list of designated doctors appointed by mutual agreement of the parties or by the commission to recommend a resolution of a dispute as to the medical condition of an injured employee. This person must hold a professional certification in a health care specialty appropriate to the type of health care that the injured employee is receiving.
SECTION 9. Section 71-3-15, Mississippi Code of 1972, is brought forward 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, unless the employee, in writing, accepts the employer's referral as his own 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. 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 One Hundred Dollars ($100.00) 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 act. 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 10. This act shall take effect and be in force from and after July 1, 2011.