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Workers' Comp Committee Update

September 22, 2010

Committee Hears from WCB Leadership

Key leadership from the Board met with The Business Council's Workers Comp Committee on September 15. A voice-challenged Betsey Miller, Special Assistant to the Chair, gave an overview on implementation of the Medical Treatment Guidelines (MTG); more voice-challenged WCB Executive Director Jeff Fenster provided high level policy frameworks guiding the Board's decision-making; and fully-voiced Cheryl Wood, Special Counsel to the Chair, gave participants insight into changes made to the Medical Treatment Guideline regulations as a result of the public comments received.  Dr. Sobol-Berger, Associate Medical Director, clarified issues specific to the guidelines.

Some take-aways from the meeting, including Q&As, for those unable to attend:

More Changes Coming; Does It Feel Like the Halloween Witch's Cauldron Brewing?

Ah, so you're a planner, you're organized, and your systems are all ready to accommodate the new medical treatment guidelines.  Not so fast.....  The implementation of the new MTGs on December 1 will also bring a new fee schedule for medical, podiatry, chiropractic and psychology.  The Board published the fee schedule rulemaking for the new fee schedule today, with comments due November 8.  The rulemaking notes that the increase in the E&M fees is estimated to cost approximately $45 million throughout the system, to be offset by cost reductions from the reduced medical costs elsewhere in the system as a result of diagnostic treatment networks, MTGs, and the changes to the frequency of medical reports required for ongoing disability payments (see the 90 day discussion above).  The rulemaking will also permit chiropractors to bill for treatment modalities performed during the visit, as opposed to current practice of billing by office visit.

The Board also filed emergency rulemaking (see page 30) today to clarify that the filing of written reports of Independent Medical Examiners be made within 10 business days after the examination; 20 business days in the case of individuals examined outside the State.  This emergency rule is intended to address concerns raised about the insufficient current timeframe of 10 calendar days for filing of the report with the Board. 

Finally, the Board anticipates issuing imaging network rulemaking and out-of-state employer coverage rules prior to the end of this year; and convening a medical workgroup to develop treatment guidelines for chronic pain and carpal tunnel. 

Insurance Department Releases Task Force Impairment Guideline Recommendations

The long-awaited recommendations from the 2007 Reform Task Force on impairment guidelines were released to the Board on September 15.  Superintendent Wrynn's transmittal document provides an overview of the team and the process used by the Task Force Director Bruce Topman to arrive at the recommendations. 

The impairment guidelines are merely recommendations. It is now within the Board's purview on the appropriate next steps.  The Board can accept the impairment guideline recommendations and their approach and publish rulemaking to implement, or modify as they see fit, or go with a different process. 

The Task Force members were unable to reach a consensus recommendation on loss of wage earning capacity guidelines, in large part because of a decision made outside the Task Force, but imposed upon its work, which precluded the use of any whole body percent in translating impairment into a component of LWEC.  So while the impairment guidelines represent sound medical recommendations, there remains a void on how best to translate that process into a starting point for an LWEC determination.  Although the Board believes the Buffalo Auto decision provided the necessary framework for judges to render LWEC decisions, even the Board acknowledged at our September 15th meeting that the pace at which cases are being classified is slower than they would have anticipated.  More work needs to follow to be able to “translate” the functional and impairment pieces completed by the Task Force into LWEC components.