Changes in workers' compensation laws in 2003: new and revised legislation further defined coverage and services under the workers' compensation laws of various States - Worker's Compensation, 2003

Monthly Labor Review, Jan, 2004 by Glenn Whittington

In 2003, major legislative reforms occurred in California, Florida, Montana, Nevada, and West Virginia. Maximum burial expenses increased from $5,000 to $7,500 in Florida and Iowa, and from $3,200 to $5,500 in Ohio. In California, the vocational rehabilitation provisions were repealed and replaced with a "supplemental job displacement benefit," up to a maximum of $10,000. Also, in California, chiropractic and physical therapy treatments were limited to 24 visits for the life of the claim, while Florida increased chiropractic treatment from 18 visits to 24 visits, and the number of weeks of treatments from 8 to 12.

Workers' compensation coverage was expanded to include search and rescue workers in Maine and members of the State defense force in New Mexico. In Maryland and Massachusetts, students in work-based learning experiences now are covered. In West Virginia, the Second Injury Fund was abolished, and the length of time a person may receive temporary total disability benefits was reduced from 208 weeks to 104 weeks. In Montana, the waiting period for temporary total disability benefits was reduced from 40 hours (or 5 days) to 32 hours (4 days) of wage loss, and the permanent partial disability benefit maximum increased from 350 weeks to 375 weeks.

The following is a State-by-State summary of changes in workers' compensation laws.

Arizona

Employers no longer have to file a written certification with the Industrial Commission. Also, employers no longer have to notify their employees annually that they have a drug testing and alcohol impairment testing policy.

A person engaged in the business of providing professional employer services is subject to the Workers' Compensation Act, regardless of whether the person uses the term professional employer organization, staff leasing company, registered staff leasing company, employee leasing company, or any other name. The professional employer organization and its client are considered the employer for the purposes of coverage under the Workers' Compensation Act, and both are entitled to protection of the Act's exclusive remedy provision.

The Special Fund may begin payment of medical or compensation benefits on a claim that involves an employer who has failed to secure workers' compensation coverage.

The civil penalty for an employer not obtaining workers' compensation coverage increased from $500 to $1,000. If the Industrial Commission has assessed a civil penalty against an employer within the previous 5 years for failure to secure workers' compensation coverage, an additional civil penalty, not to exceed $5,000, may be assessed against the employer; for a third or subsequent failure to secure workers' compensation coverage, the employer could be assessed a fine not to exceed $10,000.

California

The Disaster Service Workers' Compensation Program was restored. This program provides workers' compensation coverage and benefits to workers in volunteer disaster services through the Office of Emergency Services. The name of the "Uninsured Employers Fund" was changed to "Uninsured Employers Benefits Trust Fund"; the "Subsequent Injuries Fund" was changed to the "Subsequent Injuries Benefits Trust Fund."

The period of time required to reasonably conduct utilization review will not be considered unreasonable delay in the payment of compensation for purposes of determining "penalty issues."

The 1-year period from the date of death for commencing proceedings for workers' compensation benefits in the case of death from asbestosis was extended to include firefighters who die of asbestosis.

Glenn Whittington is Chief, Branch of Planning, Policy and Standards, Office of Workers" Compensation Programs, Employee Standards Administration, U.S. Department of Labor.

The fine for committing workers' compensation fraud increased from $50,000 to $150,000.

The vocational rehabilitation provisions were repealed and replaced with a "supplemental job displacement benefit" of up to a maximum of $10,000 if the injured worker does not return to work within 60 days from the injury.

Employees receiving vocational rehabilitation services prior to January 1, 2004, are entitled to them until those services are concluded. Vocational rehabilitation services will not be provided to any employee on or after January 1, 2004.

On or after January 1, 2004, if an injury causes permanent disability and the injured employee does not return to work to his or her usual or customary job for the employer, the injured employee will be eligible for a supplemental job displacement benefit in the form of a nontransferable voucher for education-related retraining or skill enhancement, or both, at a State approved or accredited school. The amount of the benefit is determined by the degree of permanent partial disability the worker suffers.

The employer will not be liable for the supplemental job displacement benefit if, within 30 days of the end of temporary disability, the employer offers modified or alternative work, and the employee rejects or fails to accept the offer.