Bill Summary for H 709 (2011-2012)

Summary date: 

May 31 2011

Bill Information:

View NCGA Bill Details2011-2012 Session
House Bill 709 (Public) Filed Wednesday, April 6, 2011
PROTECTING AND PUTTING NORTH CAROLINA BACK TO WORK BY REFORMING THE WORKERS' COMPENSATION ACT TO (1) DEFINE "SUITABLE EMPLOYMENT" PERTAINING TO AN EMPLOYEE'S RETURN TO WORK WITHIN RESTRICTIONS OR AFTER REACHING MAXIMUM IMPROVEMENT; (2) MAKE WILLFUL MISREPRESENTATIONS GROUNDS FOR DISQUALIFICATION FROM RECEIVING BENEFITS; (3) PROVIDE THAT PARTIES MAY REACH A SEPARATE CONTEMPORANEOUS AGREEMENT TO RESOLVE ISSUES NOT COVERED BY THE ACT; (4) CLARIFY THE RIGHTS AND RESPONSIBILITIES OF EMPLOYERS AND EMPLOYEES REGARDING MEDICAL EXAMINATIONS, TREATMENT, AND ACCESS TO MEDICAL INFORMATION; (5) CAP THE DURATION OF COMPENSATION FOR TEMPORARY TOTAL DISABILITY; (6) EXTEND FROM THREE HUNDRED TO FIVE HUNDRED THE NUMBER OF WEEKS AN INJURED EMPLOYEE IS ELIGIBLE TO RECEIVE COMPENSATION FOR PARTIAL INCAPACITY; (7) INCREASE THE DEATH BENEFIT AND BURIAL EXPENSE ALLOWANCE; (8) REDUCE THE INDUSTRIAL COMMISSION FROM SEVEN TO FIVE MEMBERS SUBJECT TO LEGISLATIVE CONFIRMATION; (9) PROVIDE THAT COMMISSIONERS AND DEPUTY COMMISSIONERS ARE SUBJECT TO THE CODE OF JUDICIAL STANDARDS; AND (10) REPEAL THE COMMISSION'S FULL EXEMPTION FROM THE ADMINISTRATIVE PROCEDURE ACT, THEREBY SUBJECTING THE COMMISSION TO RULE MAKING PURSUANT TO ARTICLE 2A OF CHAPTER 150B OF THE GENERAL STATUTES AND REQUIRING THE COMMISSION TO READOPT RULES PURSUANT TO THAT ARTICLE.
Intro. by Folwell, Dollar, Hager, Crawford.

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Bill 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.

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