AN ACT PROTECTING AND PUTTING NORTH CAROLINA BACK TO WORK BY REFORMING THE WORKERS' COMPENSATION ACT. Summarized in Daily Bulletin 4/6/11 and 5/31/11. Enacted June 24, 2011. Effective June 24, 2011.
Summary date: Jun 30 2011 - View summary
Bill H 709 (2011-2012)Summary date: May 31 2011 - View summary
House committee substitute makes the following changes to 1st edition. The committee report was reported into the House on 5/27/11.
Amends GS 97-2(19) to include in the definition for medical compensation (1) attendant care services prescribed by a health care provider who is authorized by the employer or subsequently by the Industrial Commission (Commission) and (2) vocational rehabilitation. Amends proposed GS 97-2(22) to define suitable employment as any employment that is offered to the employee, or if prohibited by the Immigration and Nationality Act, 8 U.S.C. 1324a, employment that is available to the employee (1) that is within the employee’s work restrictions before the employee has reached maximum medical improvement or (2) that the employee is capable of performing after reaching maximum medical improvement given the employee’s pre-existing physical and mental limitations, vocational skills, education and experience, and provided that the work is within a 50-mile radius of the employee’s residence at the time of injury, or current residence if the employee had a legitimate reason to relocate since the date of the accident. Applies to claims that arise on or after the effective date of the act.
Adds a new subsection (k) to GS 97-18 to provide that when the employer or insurer has admitted the employee’s right to compensation or the employer’s liability has been established, the employee may move for reinstatement of compensation on a form prescribed by the Commission. Provides that any challenge to employee’s reinstatement request must be scheduled on a preemptive basis. Applies to claims pending on or after the effective date of the act.
Amends GS 97-25 to give the employee the right to make a written request to the employer for a second opinion evaluation. Provides that if the employer refuses the request for a second opinion, then the employee may request that the Commission order a second opinion examination. Requires an employee requesting a change in treatment or health care provider to show by a preponderance of the evidence (was, by clear and convincing evidence) that the change is reasonably necessary to effect a cure, provide relief, or lessen the period of disability in order for the Commission to approve the employee’s request. Provides that an employee’s refusal to accept any medical compensation (was, medical, hospital, surgical or other treatment or rehabilitative procedure) ordered by the Commission bars the employee from receiving further compensation unless the Commission finds that the circumstances justified the refusal. Requires that any order issued by the Commission suspending compensation under GS 97-18.1 must specify the action that an employee is to take to reinstate the compensation. Applies to claims pending on or after the effective date of the act.
Amends GS 97-25.6 to provide the procedure for employers, their attorneys, and their insurers to obtain relevant medical information relating to an employee without the employee’s prior authorization. Clarifies what is considered to be relevant medical information. Permits the employer to make a written request for information that is not contained in the records and allows the employer to make an oral request for information that is not contained in the medical records or available through written communication or otherwise. Requires the employer to provide written notice to the employee of the employer’s requests for medical records or written requests for additional information, and to provide the employee with a copy of any records or written responses and a summary of any oral communications in which the employee did not participate. Requires advance written notice to the employee before the employer gives the employee’s authorized health care provider any relevant medical information not contained in the employee’s medical records. Provides that the employee must have 10 business days in which to either consent or object to the employer’s proposed communication with the provider. Provides for a hearing before the Commission if the employee refuses consent. Clarifies that each party is responsible for its own compensation owed to a provider under the fee system set by the Commission to compensate the provider for time spent communicating with the employer or employee. Applies to claims pending on or after the effective date of the act.
Adds new subsection (g1) to GS 97-26 directing the Commission to adopt rules requiring electronic medical billing and payment processes, and requiring applicable administrative standards for processing electronic medical bills to comply with 45 CFR 162.
Amends GS 97-27 to clarify that the independent medical examination is subject to specified provisions. Provides that no fact communicated to or otherwise learned by any physician who attended, examined, or was present at any examination is privileged with respect to a claim before the Commission (was, in any workers’ compensation case with respect to a claim pending for hearing before the Commission). Permits an employer to communicate with an independent medical examiner chosen by the employer regardless of whether the examiner has physically examined the employee. Provides that any refusal by the employee to submit to an independent medical examination suspends the employee’s right to compensation and the employee’s right to prosecute any proceedings under the act, and requires the Commission to inform the employee how to end the suspension and reinstate compensation. Directs the employer to provide the employee with a copy of any written report of an independent medical examination within 10 days of its receipt, together with all supporting documents provided to the examiner. Applies to claims pending on or after the effective date of the act.
Rewrites GS 97-29 to direct an employer to pay an employee qualifying for total disability a weekly compensation equal to sixty-six and two-thirds percent of average weekly wages, but not more than the amount established annually to be effective January 1 (was, October 1), nor less than $30 per week. Places a 500 week limit on the duration of compensation, including medical compensation measured from the date of first disability (was, measured from the date of injury). Allows an employee to seek extended compensation beyond 500 weeks if the employee (1) has received at least 425 weeks of compensation at the time of the request, and (2) shows by a preponderance of the evidence that the employee has sustained a total loss of wage earning capacity. Provides additional specifications regarding rates and length of compensation for total disability. Applies to claims arising on or after the effective date of the act.
Amends GS 97-30 to increase the maximum duration of compensation for partial incapacity from 300 weeks to 500 weeks, and provides that any amount received for total incapacity under GS 97-29 will count toward this limit. Applies to claims arising on or after the effective date of the act.
Amends GS 97-32 to require the Commission to specify in its order suspending compensation how the employee can end the suspension and reinstate compensation. Applies to claims arising on or after the effective date of this act.
Enacts new GS 97-32.2 to provide requirements for the provision of, payment for, and termination of vocational rehabilitation services including a one-time evaluation regardless of whether the employee has reached maximum medical improvement. Provides criteria under which an employee may request vocational rehabilitation services. Provides that an employee’s refusal to accept or cooperate with vocational rehabilitation bars the employee from receiving compensation during the period of the refusal, unless the Commission determines the refusal was justified. Applies to claims arising on or after the effective date of the act.
Amends GS 97-40 to increase the maximum compensation payable for burial expenses of an employee who dies without dependents from $3,500 to $10,000. Applies to claims arising on or after the effective date of the act.
Amends GS 97-77(a) to reduce the number of members on the Commission from seven to six (was, five) and make additional adjustments to qualifications for commissioners.
Provides that commissioners and deputy commissioners are subject to the Code of Judicial Conduct (was, standards of judicial conduct). Deletes the prohibition against commissioners or deputy commissioners engaging in any other employment, business, profession, or vocation while in office.
Amends GS 97-80(a) to restore the statutory provision deleted in the first edition, which provides that processes, procedure, and discovery are to be as summary and simple as reasonably possible.
Clarifies that rules readopted on or before December 31, 2012, must remain in effect until the rule becomes effective pursuant to the Administrative Procedure Act. Applies to rules adopted on or after the effective date of the act.
Makes conforming changes and organizational changes. Provides that this act is effective when it becomes law, and applies to claims pending or arising on or after the effective date as otherwise indicated in this digest.
Makes a conforming change to the bill title.
Bill H 709 (2011-2012)Summary date: Apr 6 2011 - View summary
Effective July 1, 2011, amends GS 97-2 to define suitable employment as any employment available that (1) prior to reaching maximum medical improvement is within the employee's work restrictions including rehabilitative employment approved by the employee's treating health care provider or (2) after reaching maximum medical improvement is employment which the employee is capable of performing considering the employee's education, physical limitations due to the injury, vocational skills, and experience.
Effective July 1, 2011, adds new GS 97-12.1 to prohibit compensation for injury or accident or occupational disease if an employer proves that: (1) at the time of hire or in the course of entering into employment; (2) at the time of receiving notice of the removal of conditions from a conditional offer of employment; or (3) during the course of a post-offer medical examination: (a) the employee knowingly and willfully made a false representation as to the employee's physical condition; (b) the employer relied upon one or more false representations by the employee, and the reliance was a substantial factor in the employer's decision to hire the employee; and (c) there was a causal connection between false representation by the employee and the injury or occupational disease.
Amends GS 97-25 to repeal authority of the Industrial Commission (Commission) to order further treatments in its discretion in case of a controversy arising between an employer and employee relative to the continuance of medical, surgical, hospital, or other treatment. Specifies that the Commission may order a change of treatment or health care provider at the request of an employee only if the Commission finds that the change is based upon clear and convincing medical evidence. Specifies that the Commission must disregard any opinions of an unauthorized health care provider. Repeals authority for an injured employee to select a physician of his own choosing to attend, prescribe, and assume the care and charge of his case.
Amends GS 97-25.6 to authorize an employer to obtain medical records of the employee and communicate with an employee’s health care providers, without the express authorization of the employee, if certain criteria are met. Authorizes the Commission, upon motion by an employee or the health care provider from whom medical records, reports, or information are sought or upon its own motion, to make any order to protect an employee, health care provider, or other person from unreasonable annoyance, embarrassment, oppression, or undue burden or expense. Exempts any communications concerning an independent medical evaluation for the purpose of expert testimony. Directs the Commission to establish annually a fee to compensate health care providers for time spent communicating with the employer or representatives of the employee. Directs employee to furnish to the employer, upon written request, any medical records or reports that reflect evaluation, diagnosis, or treatment of the particular injury or disease for which compensation is sought or is reasonably related to the injury or disease for which the employee seeks compensation. Specifies that provisions in statute supersede prohibition against ex parte communications and privacy of medical records in the custody of health care providers.
Amends GS 97-27 to require an employee who claims compensation for an injury, upon request of his or her employer or order of the Commission, to submit to an independent medical examination by a physician who is licensed and practicing in North Carolina, even if the employee’s claim has been denied pursuant to GS 97-18(c). Authorizes the employee to have any physician provided and paid by the employee present at the exam. Authorizes an employee who is dissatisfied with the percentage of permanent disability to seek another opinion solely on the issue of the percentage of permanent disability provided by a duly qualified physician of the employee’s choosing who is licensed and practicing in North Carolina. Authorizes an employer or the Industrial Commission to require an autopsy in the case of a death of an employee.
Effective July 1, 2011, amends GS 97-29 to specify that if the incapacity for work resulting from an occupational disease is total, the employer is required to pay specified disability compensation to the employee. Limits compensation payments for temporary disabilities. Requires payment of compensation during the lifetime of a permanently disabled employee. Specifies the conditions under which an employee is considered permanently disabled.
Effective July 1, 2011, makes conforming changes to GS 97-30.
Effective July 1, 2011, amends GS 97-32 to provide that an injured employee is not entitled to compensation if he or she refuses suitable employment, unless the Commission determines that the refusal is justified. Authorizes an employer to contact an employee directly about returning to suitable employment.
Effective July 1, 2011, amends GS 97-38 to increase the maximum amount of burial expenses that must be paid by an employer to $10,000 (was $3,500) if death results proximately from compensable injury or occupational disease within a certain time period. Also increases maximum number of weekly compensation payments due on account of death to 500 weeks (was, 400 weeks) from the date of the death of the employee.
Amends GS 97-77 to reduce number of members of Industrial Commission to five (was, seven) and to set members terms at six years. Prohibits a person from serving more than two terms on the Commission. Provides that appointments of commissioners are subject to confirmation by the General Assembly by joint resolution, and specifies nomination procedures and procedures to fill vacancies. Makes other conforming changes.
Adds new GS 97-78.1 to specify that the standards of judicial conduct for judges in Article 30 of Chapter 7A of the General Statutes apply to commissioners and deputy commissioners.
Amends GS 97-80 to require the Commission to adopt rules to carry out the provisions of this Article.
Effective July 1, 2011, amends GS 97-84 to require the Commission, in the case of a dispute, to decide the case and issue findings of fact based upon the preponderance of the evidence in view of the entire record.
Effective May 1, 2011, amends GS 150B-1(c) to remove the Industrial Commission from the list of agencies that are completely exempt from Chapter 150B of the General Statutes.
Effective May 1, 2011, amends GS 150B-1(e) to add the Industrial Commission to the list of agencies that are exempt from the contested case provisions of Chapter 150B of the General Statutes.
Effective May 1, 2011, directs the Industrial Commission to adopt all rules contained in Title 4 of Chapter 10 of the North Carolina Administrative Code in accordance with Article 2A of Chapter 150B of the General Statutes. Specifies that any existing rule that is not readopted by December 31, 2012, expires.
Specifies the terms of the seven members of the Industrial Commission as of February 1, 2011. Makes the reduction to five commissioners effective by not filling the two offices that expire June 30, 2012. Makes reduction from three commissioners to two in the employee and employer categories and the qualification of the fifth commissioner effective July 1, 2012.