By Lance Montour, Esq.
It has been some time since the entirety of the regulations governing workers' compensation were reviewed and revised. For a number of years, the Maryland Workers’ Compensation Commission has addressed concerns on an as needed basis. To review all of the presently proposed regulations, most of which are renumbered versions of the prior regulations, please note the link is: http://www.wcc.state.md.us/PDF/Reg_Eval/Draft%20Regs_062713_.pdf. For the purpose of this commentary, I am going to highlight a few of the currently reworded or modified proposed regulations that should give pause to any employer and insurer which has employees in the State of Maryland.
Proposed Regulation C.O.M.A.R 14.09.02.02 – Voluntary Disclosure Of Social Security Number.
Keeping step with privacy concerns, this rule confirms that the disclosure or identification of an injured worker's Social Security Number is totally voluntary. Though this is a seemingly commendable step, it is quite problematic in practice. The Commission no longer has a paper file. Only electronic storage of claim documents exists. One of the required entries is the injured worker's Social Security Number. Since the injured worker no longer is required to provide this information when filing the claim, or at any point for that matter, the ability to access claim information is limited. Of course, the Commission will provide access to the attorney of record in the claim at hand, but without the Social Security Number the employer and insurer will be unable to learn whether there is another claim for the same accident, a prior claim involving the same injuries, a subsequent claim showing employment during a period of alleged disability, et cetera.
The concern here should not be solely on the part of the employers and insurer, but the injured worker should also wonder about this situation. In Maryland, the Subsequent Injury Fund (SIF) pays for impairments that pre-existed an accident. Without access to the Commission's database, there is less of a chance that an injured worker's attorney will be able to verify the extent of an impairment from a previous work-related accident. That previous impairment means money to the injured worker, which the lack of information will prevent. The Subsequent Injury Fund will also be concerned because the statute provides them a credit against any present obligation for the monetary amount the injured worker received in a previous claim. But again, it seems that even when considering this aspect, the burdens will fall on the employer and insurer as the Commission may have no choice but to award benefits from the employer and insurer when they are not made aware of the prior claims and the disability associated therewith.
Basically, by allowing an injured worker the option to refuse to give identifying information necessary to conduct a thorough investigation, the regulation inadvertently aid the unscrupulous, such as those injured workers who seek to hide the true state of their medical condition as it existed before the alleged work-related injury.
Proposed Regulation C.O.M.A.R 14.09.03.07 - Motion To Compel Medical Authorization.
In what surely is a response to a seemingly problematic situation of disclosure of medical information generally, the Commission has continually relied on the use of Medical Authorizations. For such releases to be effective, they have to be signed by the injured worker. Some attorneys for the injured worker will try to delay, put restrictions on, or even out right refuse to have the injured worker provide a Medical Authorization. The proposed regulations create a process for requiring the injured worker to provide a Medical Authorization.
The problem with the compulsory process is that it requires the employer and insurer to identify the doctor to which the Medical Authorization is to be sent. This delays the receipt of the records because for each new doctor, the employer and insurer would have to file a separate Motion to Compel. Further, the mere fact that this regulation allows the injured worker to interpose another procedural obstacle to the provision of the Medical Authorization delays the Commission from its assigned task of providing prompt and efficient compensation to an injured worker.
This regulation also works in a questionable manner when in combination with the restrictions on the use of subpoenas. For a subpoena to be issued for production of records, a hearing must already be scheduled (and technically that should mean the records do not show up until the hearing). Accordingly, the potential delay in getting a Medical Authorization and a subpoena's applicability only for a hearing, an employer and insurer are likely to be prevented from obtaining pertinent medical information upon which to base claim decisions. In this regard, the question of whether or not to get a second opinion is substantially impacted. In addition to just not being sure of the actual medical situation, the employer and insurer may not be able to arrange the second opinion or get a competent opinion because not all of the pertinent medical records are available.
While seemingly innocuous and problematic from the practical administration of a claim, this new regulation again goes to the question of whether the injured worker is allowed to hide treatment with some non-disclosed doctor for a prior or subsequent injury. Additionally, if the injured worker is told to whom the request will be forwarded in advance of the providers receipt of the request (and remember, he can revoke any authorization without telling anyone but the provider), he can revoke the authorization and prohibit the disclosure of the records.
Proposed Regulation C.O.M.A.R 14.09.03.09 – Mandatory Exchange Of Hearing Exhibits.
This new rule requires the exchange of ALL exhibits at least 3 days before a hearing. The only caveat is that this applies to exhibits a party intends to introduce. The Commission has indicated that the purpose of the rule is to avoid gamesmanship regarding exhibits. What it actually does, however, is require an employer and insurer to tell the injured worker's attorney what defense strategy is to be employed at the hearing.
Previously, the only required disclosure in advance of a hearing was relevant medical information. Impeachment evidence, such as surveillance footage, employer work records, et cetera, was not subject to a mandatory pre-hearing disclosure. Similarly, it previously could be argued that even medical records referring to a prior or subsequent injury might have been withheld as not relevant, until the injured worker denied the other unrelated injury. Under this new rule, no such leeway would seem possible.
This regulation is very troubling and perhaps the worst of all that has been proposed. Ofttimes, an employer and insurer receive information that the injured worker is being dishonest about the claim (whether that it happened at work, or that the injured worker is as injured as alleged). Heck, it seems that television news shows will often demonstrate the gotcha moment of those who are dishonest in a workers’ compensation claim. Under this rule, the dishonest would be afforded pre-knowledge that they were caught. They could then modify what they claimed, or perhaps just develop a new excuse to explain away the evidence.
As honorable as the Commission's intent with this rule is, it should be clear that this mandatory disclosure of exhibits does little to protect the honest, but substantially aides the dishonest in their effort to abuse and cheat the workers’ compensation system.
Proposed Regulation C.O.M.A.R 14.09.06.04 – Notice Required For Termination Of Medical Benefits.
It has long been established that before terminating lost wage benefits, an employer and insurer are required to notify the injured worker and the Commission that benefits will be terminated and the justification therefore. The Commission's new regulations will extend a similar requirement to the termination of medical benefits, while adding a more burdensome requirement that the employer and insurer provide a medical opinion supporting the termination of treatment. While an honorable purpose is clearly behind this, it is a dangerous policy. The employer and insurer, represented by the claims adjuster, is the only person actually following the injured worker's medical treatment. The Commission cannot oversee the injured worker's medical treatment on a daily, or weekly, or monthly basis (and probably not even on yearly basis, since that would require an additional hearing for each and every claim that has not been concluded by a settlement or dismissal). This rule, therefore, allows the injured worker to continue receiving medical treatment that may be detrimental to the injured worker’s health.
As unfortunate as it is, there are some medical professionals who are more concerned about the money received on account of, rather than the health of, the injured worker. Pain management facilities which prescribe medications in extensive quantities clearly stand out. Instead of terminating such treatment, the employer and insurer will now have to generate some evidence upon which to base a termination. It can be agreed that getting the injured worker proper treatment is quite paramount, but some medical providers refuse to send medical records detailing the treatment. As such, treatment cannot be terminated because no one knows what is happening, or more importantly whether it is dangerous to the injured worker.
Again, there is a concern that when confidential information is provided that the injured worker is not really injured (e.g., surveillance footage), there will be no medical report to support the termination of medical treatment in such a case. Under this regulation, the employer and insurer would have to send such evidence to a doctor and then send the doctor’s report detailing the surveillance to the injured worker’s attorney. The result is that the dishonest will be afforded an opportunity to modify testimony to justify the inappropriate and inconsistent activities. But regardless of the disclosures and modified testimony, the problem would still exist that in order to prevent an injured worker from receiving excessive or dangerous treatment, additional time is lost in the effort to obtain a technical requirement for justification.
Defending a workers' compensation claim was never supposed to be easy. The law rightly favors the injured worker, who seemingly has the most to lose when it comes to whether and what benefits will be awarded. The employer and insurer, however, also deserve the protection afforded by an even field of play. The umpires in this field of play, if you will, are the Workers' Compensation Commissioners. They are charged with the impartial administration of justice. Part of a just system requires the administration and development of rules that are fair to all parties. In light of the above, it is not unreasonable to conclude that the playing field appears to have been sloped against employers and insurers.
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