Workers’ Compensation Board Rules Taskforce Proposes Changes to Workers’ Compensation Board Rules

The Workers’ Compensation Board Rules Taskforce has proposed changes and amendments to various Board Rules. The following are highlights of what has been proposed. 

WCB Rules c. 1 may be amended to provide that if an employer is out of business, has been sold, or changed its name since the last time the employee worked there, an employee’s failure to give notice of the injury does not bar a claim unless the employer designated a person or entity to receive notice and the employee was provided with that designation in writing.

There is a proposed amendment to WCB Rules 4 §4(1), which currently provides that the cost for a 312 IME is borne “by the employer.” Under the proposed rule, the fee for the examination and report would be borne by the employer/insurer that requested the exam and any other employer/insurer that is a party to the proceeding. If an employee requests the exam, all employers/insurers that are parties shall, unless otherwise agreed, split the cost equally. 

A proposed amendment to Chapter 5 would provide for a procedure to expeditiously go before an administrative law judge (ALJ) if a medical release is revoked and there is a compensation payment scheme in place. 

There are numerous proposed amendments to WCB Rules c. 6, the vocational rehabilitation rule. Proposals would establish minimum qualifications for employment rehabilitation providers and provide for two-year appointments. The proposed rule would provide that providers must clearly articulate why or why not an employee is suitable for vocational rehabilitation and, if eligible, provide a detailed employment rehabilitation plan, including a clear plan for workforce reentry, outline of expected costs, and estimated length of the plan. There are also proposed rules dealing with plan implementation procedures and conflicts of interest. Objections to proposed plans would be forwarded to an ALJ for review. Proposed amendments also provide that an employment rehabilitation plan may end if the provider states that services have been completed; the duration allowed under §217(5) has expired; the applicant is unwilling or unable to continue, or is otherwise uncooperative; the parties agree to end the plan; a hearing officer or ALJ orders the plan to end; or the workers’ compensation claim lump sum settles. Finally, with respect to § 355(7) which provides that, “upon an order of recovery of plan implementation costs under section 217, subsection 3, the board shall assess the employer who refused to agree to implement the plan under section 217 an amount equal to 180% of the costs paid from the fund under this subsection,” a proposed amendment provides that an employer/insurer could file a petition objecting to an order of payment of costs where an employee returns to suitable employment after completing a rehabilitation plan to which the employer/insurer did not agree to pay.

A proposed amendement to WCB c. 8, § 18 would provide that the Consent Between Employer and Employee (WCB‑4A) may be used when the parties have agreed to discontinue or reduce benefits during the 21-day period following the filing of a Certificate of Discontinuance or Reduction of Compensation (WCB-8). By background, currently a WCB‑4A may be used when the parties have agreed to a voluntary payment of a retroactive closed-end period of incapacity, or a modification, reduction, or discontinuance in ongoing weekly incapacity benefits. 

There are various proposed amendments to WCB Rules c. 12, which primarily relate to hearing procedures. This includes revised questions on the exchange of information forms, minor changes in procedures regarding exhibits, and for continuances of hearings. There is also a proposed provision which would expressly provide that a party is not prohibited from seeking a prospective order for payment of medical treatment if payment for that treatment or treatments, or related expenses, has been denied by the opposing party.