03/10/05 0472s

03/10/05 0503s

2005 SESSION

05-0787

01/09

SENATE BILL 58-FN

AN ACT making certain changes in the workers’ compensation law.

COMMITTEE: Banks and Insurance

AMENDED ANALYSIS

This bill makes certain changes in the workers’ compensation law. Specifically, the bill:

I. Changes the amount insurance carriers and self-insurers pay to the special fund for second injuries.

II. Clarifies when a decision of the commissioner or the compensation appeals board becomes final.

III. Allows the commissioner to suspend a board member who fails to render a decision in a timely manner as required by statute.

IV. Requires First Reports of Injury to be filed electronically, unless it causes a carrier or self-insured employer undue hardship.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03/10/05 0472s

03/10/05 0503s

05-0787

01/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Five

AN ACT making certain changes in the workers’ compensation law.

Be it Enacted by the Senate and House of Representatives in General Court convened:

85:1 Hearings and Awards; Workers’ Compensation. Amend RSA 281-A:43, I(a) to read as follows:

I.(a) In a controversy as to the responsibility of an employer or the employer’s insurance carrier for the payment of compensation and other benefits under this chapter, any party at interest may petition the commissioner in writing for a hearing and award. The petition shall be sent to the commissioner at the department’s offices in Concord and shall set forth the reasons for requesting the hearing and the questions in dispute which the applicant expects to be resolved. The commissioner or the commissioner’s authorized representative shall schedule a hearing, either in Concord or at a location nearest the employee as determined by the commissioner, by fixing its time and place and giving notice at least 14 days prior to the date for which it is scheduled. The hearing date shall be set for a time not to exceed 6 weeks from the date the petition was received. In those instances where an expedited hearing is requested, the petition for hearing shall set forth the facts in sufficient detail to support the request for an expedited hearing. The commissioner, or his or her authorized agent shall, in his or her discretion, determine whether the need exists for an expedited hearing. Any requests for an expedited hearing shall be periodically reviewed by the commissioner to determine whether such requests are given proper attention. The commissioner shall also identify any overutilization by the requesting parties and responses given to such requests by the commissioner. An annual report of the expedited requests, responses, the number of continuances, the reasons for such continuances, the number of requests for hearing, and the time within which the hearings were held shall be made annually to the advisory council established in RSA 281-A:62. The notice [shall] may be given in hand or by certified mail, return receipt requested. Continuances of any hearing are discouraged; however, should a continuance be necessary, the parties requesting such continuance shall file with the department a written petition for such continuance at least 7 days prior to the hearing. Failure to file such a petition shall bar any right to a continuance. Thereafter, a continuance may only be granted upon the commissioner’s finding that a compelling need exists so as to require a continuance. At such hearing, it shall be incumbent upon all parties to present all available evidence and the person conducting the hearing shall give full consideration to all evidence presented. In addition, the person conducting the hearing shall freely and comprehensively examine all witnesses to determine the merits of the matter. Also, the person conducting the hearing may recess the hearing to a date certain and direct the parties, or either of them, to provide such further information that may be necessary to decide the matter. No later than 30 days after the hearing, the commissioner or the commissioner’s authorized representative shall render a decision and shall forthwith notify the parties of it. When appropriate, the commissioner, or his or her authorized representative, may render a decision at the hearing. Unless excused for good cause shown, failure of any or all parties at interest to appear at a duly scheduled hearing or to petition for a continuance shall bar such parties from any further action concerning an adverse decision, a decision by default, or a dismissal of a petition for hearing and award.

85:2 Hearings and Awards; Workers’ Compensation. Amend RSA 281-A:43, II to read as follows:

II. A decision of the commissioner, the commissioner’s authorized representative, or the board shall take effect [upon the date of notification] and shall become final, in the absence of an appeal from it, 30 days [after notification] from the date of the decision. Payment of weekly compensation and entitlement to medical and vocational benefits, if necessary and so ordered by the commissioner or the board, shall begin or continue as soon as possible, but no later than 5 working days after the decision’s effective date, and shall not be terminated except in accordance with the terms of the decision or of a final court determination. If the commissioner determines that the employer or carrier has failed to comply with [the] any order, then the commissioner may assess a penalty not to exceed $100 for each day of noncompliance, beginning on the date of notification of its assessment. Upon continued failure to comply with an order to make payment of the compensation or medical benefits, or to institute vocational rehabilitation, or to pay the penalty, or any combination thereof, the commissioner shall petition the superior court for an injunction to comply. The commissioner shall deposit with the state treasurer any penalty collected under this section.

85:3 Special Fund for Second Injuries; Workers’ Compensation. Amend RSA 281-A:55, III to read as follows:

III. Each insurance carrier and self-insurer shall, pursuant to rules adopted by the commissioner, make payments to the fund in an amount equal to that proportion of [175] 115 percent of the total obligation of the fund during the preceding 12 months, less the amount of the net assets in the fund as of March 31 of the current year, which the total workers’ compensation benefits, including medical benefits, paid by each insurance carrier and self-insurer bore to the total workers’ compensation benefits, including medical benefits, paid by all insurance carriers and self-insurers in the fiscal year ending in the preceding calendar year.

85:4 Workers’ Compensation; Appeals Board. Amend RSA 281-A:42-a, I to read as follows:

I. There is established a compensation appeals board. The board shall consist of a pool of 33 members, of which 11 members shall represent labor, 11 members shall represent employers or workers’ compensation insurers and 11 members shall be attorneys who shall be neutral. Members of the board shall be appointed by the governor and council from a list of nominees submitted by the commissioner. The commissioner shall submit at least 2 nominees for each vacancy to be filled. Any person appointed by the governor and council who is not qualified or who ceases to be qualified in the capacity in which such person is serving on the appeals board shall be replaced by the governor and council. Terms of board members shall be 3 years, except the initial appointments shall be staggered so that no more than 1/3 of the members’ terms shall expire in the same year. Members of the board shall have at least 5 years’ experience in the area of workers’ compensation. As a condition to maintaining eligibility to hear appeals, board members shall have at least 20 hours annually of training and briefing in the area of workers’ compensation and relevant disciplines. The commissioner, or designee, with the assistance of the attorney general’s staff shall supervise and approve the training. The commissioner shall have the authority to suspend the eligibility of any member of the board who is not in compliance with such annual training requirements, and to reinstate such member’s eligibility upon compliance. The commissioner may suspend from active participation any board member who fails to render a decision or order within 30 days of the hearing as required by RSA 281-A:43, I(b). The commissioner may rescind the suspension once the board member is in compliance with RSA 281-A:43, I(b). Appeals from a decision of the commissioner or the commissioner’s representative shall be heard de novo by a 3-member panel, composed of an attorney who shall serve as chair, one member representing labor and one member representing employers or workers’ compensation insurers. At least 2 like votes shall be necessary for a decision by the panel. The board shall hear appeals, in accordance with RSA 281-A:43, I(b), from the decisions of the commissioner made pursuant to RSA 281-A:43. No person who is an interested party or an employee of an interested party shall participate as a member of the panel. The board shall conduct its proceedings in such a manner as to ensure a fair and impartial hearing.

85:5 New Paragraph; First Report of Injury. Amend RSA 281-A:53 by inserting after paragraph II the following new paragraph:

III. On or after July 1, 2006, all “First Reports of Injury” shall be filed by the insurance carrier or self-insured employer electronically in a manner prescribed by the department. The commissioner may grant an insurance carrier or self-insured employer a variance if the carrier or self-insured employer documents to the satisfaction of the commissioner that compliance would cause the carrier or self-insured employer “undue hardship” which, for the purposes of this section, means significant difficulty or expense.

85:6 Workers’ Compensation; Notice of Hearing. Amend RSA 281-A:45 to read as follows:

281-A:45 Manner of Giving Notice of Hearing. A notice of a hearing under the provisions of this chapter [shall] may be given by giving notice in hand or by sending it by regular or certified mail return receipt requested addressed to the employee, the employer and the employer’s insurance carrier, at each party’s last known residence or place of business. [The superior court shall send by certified mail to the commissioner a copy of each notice of a hearing it sets.]

85:7 Workers’ Compensation; Medical, Hospital and Remedial Care. Amend RSA 281-A:23, V(a) to read as follows:

(a) The act of the worker in applying for workers’ compensation benefits constitutes authorization to any physician, hospital, chiropractor, or other medical vendor to supply all relevant information regarding the worker’s occupational injury or illness to the insurer, the insurer’s representative, the worker’s employer, the worker’s representative, the worker’s employer’s representative, and the department. Medical information relevant to a claim includes a past history of complaints of, or treatment of, a condition similar to that presented in the claim. Any person who supplies information in accordance with this subparagraph and with rules adopted by the commissioner shall be immune from any liability, civil or criminal, that might otherwise be incurred for such action. The physician may require evidence from the workers’ representative in his or her representative capacity. This authorization shall be valid for the duration of the work-related injury or illness.

85:8 Fees and Interest. Amend RSA 281-A:44, VI to read as follows:

VI. No attorney representing a claimant shall contract for, charge for, or collect a fee for legal service rendered to the claimant at the department level unless the fee has been approved by the commissioner. In determining the amount of the allowable fee, the commissioner shall consider, among other things, the nature, length and complexity of the service performed, the usual and customary charge for work of the like kind and the benefit accruing to the claimant as a result of the legal service performed; provided, however, that when an insurance carrier, self insurer, or payor acting on behalf of such carrier or self insurer disputes the causal relationship of a medical bill to the claimant’s injury, or whether a medical bill was required by the nature of the injury, and denies payment of such bill, is after a hearing, ordered to pay or reimburse the bill by the commissioner, the [employee] claimant shall be entitled to reimbursement of reasonable counsel fees and costs as approved by the commissioner. The claimant shall be entitled to reasonable fees and costs pending appeal.

85:9 Effective Date. This act shall take effect upon its passage.

(Approved: June 7, 2005)

(Effective Date: June 7, 2005)