New Workers’ Disability Compensation Agency (Agency) Rules, AC, R 408.31–.49, became effective on December 10, 2021, joining the new rules of the board of magistrates and appeals commission that became effective November 12, 2021. (For a brief rundown of those new administrative rules, see this Legal Update.) If you are handling worker’s compensation claims, you will want to take a good look at these and other recent rule changes to adjust your practice accordingly.
Filing, Service, and Remote Appearances
There are new definitions of key terms in AC, R 408.31, and filing and service requirements in contested cases are spelled out in AC, R 408.34 and AC, R 408.36. Parties are encouraged to use the Agency’s File Transfer Service for filing and exchanging documents, but the rules provide other options as well. The new rules specifically provide for remote appearances by telephonic or video conferencing “at any hearing” under the act. AC, R 408.31(1)(b).
Medical Care and Payment of Medical Bills
New AC, R 408.31a now requires an employer or carrier to provide an injured worker, within 28 days of the report of injury, with an Agency-approved form explaining the worker’s rights to obtain reasonable and necessary medical care. The hope is that this form will function as an open claim letter that motivates providers to treat injured workers. Consistent with that goal, new AC, R 408.31a(5)(a) states that employers and carriers must pay medical bills when “reasonable proof” and itemized charges have been furnished. If there is a delay in the payment of medical bills, a carrier must advise the employee and provider of the reasons for the delay in writing. AC, R 408.33(2)(c).
Stopping Payment of Benefits
When a defendant seeks to stop the payment of benefits previously ordered, it must comply with new AC, R 408.40. The defendant must first provide to the claimant, and counsel if the claimant is represented, proof of the payment of compensation within 15 days of filing the petition. The moving party must also file and serve (1) an affidavit stating that the employee has returned to gainful employment paying wages at or above their average weekly wage at the time of injury and substantially describing the nature of the employment; (2) a signed statement from a physician stating that the employee is able to return to unrestricted employment, that the employee is able to return to restricted employment accompanied with an affidavit demonstrating that such work is offered or reasonably available, or that the conditions found to be work-related cease to exist and are no longer a cause of current wage loss; or (3) “proof of any other ground for stopping benefits permitted by law.”
Recoupment of Overpayments
New AC, R 408.40(6) delineates the circumstances under which defendants may recoup overpayments paid in the prior year. This new rule provides that, except with respect to coordination of benefit errors, no reimbursement of previously paid benefits may be ordered against an employee unless the employer or carrier establishes that the employee concealed postinjury earnings or that benefits were overpaid as a result of a mathematical, technological, or clerical error. Reimbursement of previously paid benefits may not be ordered when an employer or carrier unreasonably changes its position regarding whether a condition is work related or whether a claimant was disabled. If an overpayment occurs as a result of a mathematical, technological, or clerical error, the employer or carrier may not reduce ongoing weekly benefits by more than 50 percent to recoup the overpayment. A magistrate may furthermore waive reimbursement of an overpayment on an employee’s showing of undue harm. The magistrate may take into consideration whether recoupment of an overpayment would not serve the purposes of the Worker’s Disability Compensation Act.
Vocational Rehabilitation
New AC, Rs 408.31, .45, .45a, and .45b include important new rules governing vocational rehabilitation. Returning the employee to the original employer of injury is still the preferred outcome under the rules. Remedial and retraining services may be provided at any step in the process regardless of the ultimate goal. AC, R 408.31(1)(l). Consistent with the caselaw, vocational rehabilitation should be structured “to return the employee to a remunerative occupation commensurate with their prior wage earning capacity.” AC, R 408.45a(3). If a dispute arises regarding vocational rehabilitation, a hearing before the director may be sought pursuant to the procedures described in AC, R 408.45b.
Attorney Fees and Costs
The updated rule governing attorney fees and costs is set forth in AC, R 408.44.