Workers’ comp commission releases reform report

first_img Workers’ comp commission releases reform report Senior EditorClaimant workers’ compensation attorneys would be eligible only for contingency and not hourly fees under a sweeping rewrite of state workers’ comp laws proposed by a gubernatorial commission.The report, which also recommends more government oversight and a crackdown on fraud, also proposed that attorneys not be paid fees and costs for appealing an adverse medical decision unless the appeal is successful.The Governors Commission on Workers’ Compensation Reform issued its final report January 31. It will be considered by a special Florida House select committee, chaired by Rep. Dennis Ross, R-Lakeland, that was recently appointed to study the issue and recommend legislation this year. The committee was set to meet as this News went to press.The state has been plagued by rising workers’ comp rates for employers, and experts have noted the state has among the highest rates in the nation and at the same time some of the lowest payments for injured workers.The governor’s commission cited a wide range of reasons for those problems, ranging from fraud, lax state oversight, unwillingness of employers to rehire injured workers, problems with medical treatment and payment, lack of safety programs, and prolonged litigation when disputes arise.Rafael Gonzalez, past chair of The Florida Bar’s Workers’ Compensation Section and who now monitors legislative activities for the section, said some of the recommendations are laudable, but other parts, including the fee changes, will cause problems.The overall goal, he said, is commendable. “The idea that a decision on medical benefits would come quicker to the injured worker or the employer/carrier is a good goal and one that we would support,” Gonzalez said. “I do not think the manner in which they have recommended it will achieve that goal.”Most of its final report dealt with other issues, but some dealt specifically with attorneys fees and how disputes will be handled.On fees, the report said, “The commission recognizes that litigation of disputes in this state is a main cost driver in the workers’ compensation system. Yet, the commission recognizes that the system must have an incentive to pay legitimate claims in a prompt manner. For these reasons, the commission believes that attorneys’ fees should be limited to a contingency basis and the hourly fee provision of the statute should be eliminated.”Its specific recommendation is to eliminate the hourly fee provision in F.S. § 440.34 “and replace the fee provision with a system that provides due process and access to courts for injured workers in an expeditious manner.”The problem with that recommendation, Gonzalez said, is it will eliminate lawyer representation for small cases and minor issues, which make up 75 to 80 percent of workers’ comp cases.As an example, he said a carrier might wrongly deny a $750 MRI that an injured worker needs. It could take the lawyer 20 to 30 hours to get the test approved by a compensation judge, and the new law would limit the payment to 20 percent of the $750.“No attorney would take a case where they know a benefit has been denied and they knew they were going to have to work those kind of hours to get that benefit.”Attorneys also would be affected by recommendations for revisions in the claims process. The report recommended setting up physician review panels, or PRPs, to review doctors’ decisions. It added that “to create a disincentive for routinely appealing all PRP determinations, regardless of merit, the commission recommends that no costs and fees be reimbursed to a claimant’s attorney unless and until the claimant successfully appeals an adverse ruling by the PRP.”The report also proposed that on indemnity issues a two-tier process be used, with one level for relatively simple complaints and a second for more complex issues. It also recommended that similar to the PRP process, no fees or costs for claimants’ attorneys be reimbursed for appealing any administratively rejected claims unless the appeal is successful.Gonzalez said it’s already the law that claimants attorneys don’t win anything if they lose an appeal. He also questioned whether the PRPs would actually help.“It’s almost a new level of appeal that would not only add a month or two to the system but it’s an opportunity for either side to create havoc,” he said. “We don’t think it’s going to deliver the benefit any quicker or it’s going to be less expensive. If anything, we think adding these panels will add a huge cost to the workers’ compensation system that we don’t have now.”The proposals would retain the judges of compensation claims to settle disputes, but would try to streamline procedures to reserve judges’ time for the more complex cases. The commission also proposed creating a Workers’ Compensation Appellate Commission to hear all appeals and which would be charged with strictly applying the intent of the workers’ comp laws.“The ability for the appellate aspect of the system to reinforce the appropriate ‘front-end’ behavior of the system participants will be assured,” the report said. “The regional district courts of appeal and the Supreme Court would then have a certiorari jurisdiction over issues of constitutional integrity.”The commission also proposed that workers who seek a fast resolution of their case could opt for arbitration. Arbitration would be used solely at the discretion of the injured worker.Other of the wide-ranging recommendations include:• Improve state oversight and increase penalties for violating the workers’ comp laws. • Tighten up definitions for permanent total disability, where Florida expenses run three times the national average. Florida has used the criteria for qualifying for Social Security Disability, but the report noted someone who is completely injured for 12 months, and then recovers, can meet the federal guidelines. Gonzalez said this is a potential disaster for seriously injured workers, because the commission didn’t propose any new definition, short of a catastrophic injury such as blindness or loss of a limb. That could leave older workers with a debilitating condition, such as a spinal cord injury, without any benefits and reliant on taxpayers, he said.• Require that doctors treating injured workers be certified for workers’ comp work, and increase payments to doctors. The report noted Florida has the lowest reimbursement at 17 percent less that Medicare, while most of the 40 states with schedules pay from 30 to more than 50 percent above the Medicare rate. The report also noted that hospitals providing outpatient treatment get considerably more than if the same treatment is provided in a doctor’s office, and that hospitals routinely charge more to workers’ comp patients than for those covered by group health insurance plans. The commission recommended addressing those inequities.• Find ways to encourage reluctant employers to rehire injured workers, thus cutting costs to the system.• Beef up the Department of Insurance offices that investigate fraud and ensure compliance.• Limit exemptions for construction companies, which some reports have identified as a major source of fraud, to no more than three. Currently, any corporate officer with a 10 percent ownership can be exempted.A complete copy of the final report can be downloaded, in the Microsoft Word format, from the state’s Web site, at www.myflorida.com/myflorida/government/taskandcommissions/workerscomp/index.html. March 1, 2003 Gary Blankenship Senior Editor Regular News Workers’ comp commission releases reform reportlast_img

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