ACTION IN THE LEGISLATURES: WORKERS COMP STABLE MAJOR CHANGES IN FEWER STATES (PART 2/5)

The Maine Legislature passed two bills relating to workers comp in its session that ended June 2, though the governor vetoed one.

The vetoed proposal would have removed from existing law a provision that gives an employer the right to select a health care provider for an injured employee for the first 10 days of care. The governor vetoed the measure June 10. The Legislature failed to override the veto.

Another measure signed into law by the governor directs employee advocates to assist employees through mediation and hearings and raises the cap on assessments and adds an allocation to fund additional employee advocates. The new law also says that health care practitioners submitting sworn statements are not subject to cross examination at hearings with respect to medical evidence.

In Massachusetts, legislation is being considered by the House Commerce and Labor Committee that would effectively repeal workers comp reforms made in Massachusetts in 1991. Those reforms sharply cut back benefits.

The bill would: increase the average comp wage loss compensation rate to 66.66% from 60%; extend the payment period for temporary total disability benefits to five years from three; and increase the period for paying temporary partial disability benefits to 11 years from five.

There was no significant workers comp legislative activity in Connecticut, New Hampshire, Rhode Island or Vermont.

While Pennsylvania did not make any changes to its workers compensation law this year, sweeping reforms enacted last year have resulted in rates being cut by 25% this year.

In Delaware, Gov. Thomas R. Carper was expected to sign a bill last week that would allow large employers, such as Wilmington-based E.I. du Pont de Nemours & Co., to opt out of the state's second-injury and contingency funds.

There was no significant workers comp legislative activity in the District of Columbia, Maryland, New Jersey, New York or West Virginia.

Florida reforms introduced changes to the state's guaranty funds. The measure, which became law without Gov. Lawton Chiles' signature and is effective June 1, merges the Florida Self-Insurance Fund Guaranty Assn. into the workers comp account of the Florida Insurance Guaranty Assn. to create the Florida Workers Compensation Insurance Guaranty Assn.

The self-insurance fund, known as "Little FIGA," was designed to pay accident claims on behalf of insolvent self-insurers. A number of insolvencies and an overall decline in the number of self-insurers has the left the fund short of what is needed to pay claims. The new fund will be created by Oct. 1 and will assess self-insurers and insurers to pay claims of insolvent self-insured plans.

The legislation also eliminates the state's Special Disability Trust Fund, or "second-injury fund," which reimburses insurers and employers for a second injury to a worker with an existing impairment. The fund had incurred unfunded liabilities of $4.05 billion.

The second-injury fund will not accept claims for accidents occurring on or after Jan. 1, 1998.

Georgia Gov. Zell Miller signed a package of workers comp changes submitted by the state's Board of Workers Compensation and passed by the Legislature.

Among other things, the new law provides protection against civil and criminal liability to any person who provides information to the board about workers comp fraud or non-compliance.

The new law also gives the state's workers comp board the authority to regulate third-party administrators and servicing agents that deal with self-insured workers comp plans.

The Louisiana Legislature has passed several workers comp bills. Among them is a bill that would define who is responsible for workers comp coverage of temporary workers. The bill would make both the "special employer" that hires the temp and the "general employer" that makes the worker available jointly responsible for comp benefits. Each employer could seek contribution from the other for payment of benefits when there is no contract between them specifying how the liability should be shared. Both employers are entitled to statutory exclusive remedy protection under the bill. The new law only affects cases arising after its effective date.

Other bills include a measure that would allow lump sum settlements of workers comp benefits earlier than six months after termination of temporary total disability. The bill would overturn a state appeals court ruling that invalidated one such early settlement and that jeopardized the validity of hundreds of similar settlements.

Another bill would allow a hearing officer to impose a civil fine of $500 to $5,000 against a person making a fraudulent workers comp claim.

All three bills became effective on signature by the governor earlier this month.

A new law enacted this spring in Mississippi will make it possible for employers to earn workers comp premium reductions by qualifying as drug-free workplaces.

The law creates a system of certification for employers that implement programs aimed at preventing substance abuse in the workplace. Certified employers can earn a 5% workers comp premium reduction. Participation is voluntary for both employers and insurers.

The new law, which takes effect July 1, directs the state's Department of Insurance to write the appropriate regulations for the new drug-free workplace program.

The program is not based on employee drug-testing but instead focuses on education, with workers comp administrators at qualifying employers required to receive two hours of drug-free workplace training yearly and employees to receive one hour of such training annually.

The North Carolina General Assembly, though still in session until early July, passed no major workers comp legislation other than a revision of the hospital fee schedule for workers comp-related services, which was subsequently signed into law.

The South Carolina Legislature approved legislation that would require "actuarially sound" discounts for employers that maintain a "drug-free" workplace. The governor signed it into law June 10 and it will take effect in October.

In addition, before adjourning earlier this month, the Legislature carried over for consideration a measure that would require workers comp insurers that write in the voluntary market to also participate in the residual market.

Technical amendments to Tennessee's Workers Compensation Reform Act of 1996 include one that will require the state's insurance commissioner to approve variations in rates of more than 20%. The amendment was included because of concern that some insurers were pricing coverage at low rates that could not be sustained, according to Charles Fentress, state director of the National Federation of Independent Business in Nashville.

The measure, which was included as part of a bill that Gov. Don Sundquist signed, states that such deviations cannot be approved if they do not reasonably reflect projected losses, including loss adjustment expenses, or if they would result in a cost that is "excessive, inadequate or unfairly discriminatory."

Under other legislation that has been signed into law, all construction-related businesses except sole proprietors now must carry workers comp insurance. Previous law required coverage only if a company in the industry had five or more employees.

Another bill that became law without the governor's signature allows lawyers a non-voting representative on the state's workers comp advisory council, which was established by 1996 reforms. The council, made up of seven voting members that represent employers and employees, studies workers comp issues in the state and makes recommendations for changes to regulators.

The Virginia General Assembly approved a number of workers comp-related measures, most of which were very targeted, before it adjourned. The most significant piece of workers comp legislation to emerge from the General Assembly is a measure signed by Gov. George Allen and effective July 1 that defines hearing loss and carpal tunnel syndrome as "ordinary diseases of life" for purposes of compensability. Under Virginia law, ordinary diseases of life are compensable through the workers comp system only if a claimant establishes by "clear and convincing evidence" that the conditions arose out of and in the course of employment. The new law spells out the specific conditions that must be met to establish such proof.

Alabama passed no workers comp reform measures. Kentucky's Legislature is not in session in 1997. (continued in part 3).